Reply BriefAmicus Curiae — Lynch v. Overholser

rm F. DAVIS, CLERK

IN THE :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

No. 159

FREDERICK C. LYNCH,

2

WINFRED OVERHOLSER, SUPERINTENDENT, ST.

ELIZABETHS HOSPITAL, WASHINGTON, .D.C.

REPLY BRIEF FOR THE AMERICAN CIVIL

LIBERTIES UNION, AS AMICUS CURIAE

¢

Francis M. Suna,

734 Fifteenth Street, N. W.,

Washington, D. C.

Lawrence Speiser,

1612 I Street, N.W..,

Washington, D. C.

Attorneys for Amicus Curiae.

“yy

— — —

J

Hamilton v. Alabama, No. 32, O.T. 1961. emia

—2634

INDEX

SuBJsEctT ixpex

Reply Brief for Amicus Curiae : pus

A. Standards to be Applied to Cases Arising i in

the District of Columbia 2

B. Construction of Rule 9 4

C. Abuse of Discretion . 5

D. Construing the Statute Not to Apply Where

the Defendant Does Not Raise the Insanity

Defense or Alternatively Where He Attempis

to Plead Guilty 7

E. Construing the Statute Not to Apply Where

the Crime Charged is a Non-Violent Misde-

meanor 8 9

F. Constitutionality of Subsection 301 (d) 11

G. Constitutionality of the Release Standards. 16

H. Deprivation of Right to Counsel 21

Conclusion 24

TasLe or Aurnonrrixs Crrep

Cases:

Bratty v. Attorney General for Northern Ire-

land, 3 Wkly. L.R. [1961] 965 7 n. 4

Ex parte Brown; 39 Wash. 160, 81 Poe. e 12 n. 8

Bute v. Illinois, 333 U.S. 640 21 n. 16

Canizio v. New York „7 U.S. 82 ori 22

Ex parte Clark, 86 Kan. 538, 121 Pac. 492 12

Davis v. United States, 160 U. S. 469 aes 6

Ekiu v. United States, 142 U.S. 651 13

Evans v. Rives, 126 F.2d 633 f 21, 22

Fisher v. United States, 328 U.S. 463 . 2

Foster v. Illinois, 332 U.S. 1444 21 n. 16

Glasser v. United States, 315 U.S. 0 a 22

Griffin v. United States, 336 U.S. 704 2

22

ow

\

INDEX

Prue

Heflin v. United States, 358 U.S. 415 fee

Hirabayashi‘v. Uniied States, 320U.S.81 a

Ex parte Hodges, 314 S. W. 2d 581 6

Leland v. Oregon, 343 U.S. 790... 19

Liverpool, N.Y. & P. S. S. Co. v. Commissioners,

Mh Wh ᷣ ͤ ͤ v ͤ we ce cw 19

Mackey v. Mendora- Mart ines, 362 U.S. 384 9

Michener v. Johnston, 141 F.2d 171 22

Overholser v. Russell, 382 F.2d 195 9

People ez rel. Peabody v. Baker, 59 Mise. 359, 110

N. V. Supp. 88 „.

People ex rel. Peabody v. Chanler, 133 App.

Div. 159, 117 N. v. Supp. 322, aff'd, 196 N.Y.

525, 68 NN... 1100... |... 12 n. 8

Ragsdale v. Overholser, 281 Fd 943 8 n. 6, 15

Regina v. Kemp, [1957] 1 C. B. 399 3

Rez v. Oliver, 6 Cr. App. 199 6, 7

Robinson v. Johnston, 50 F. Supp. 774 22

Ex parte Slayback, 209 Cal. 480, 288 Pac. 769 12n.8

State v. Burris, 169 La. 520, 125 So. 580

State v. Saffron, 146 Wash. 202, 262 Pac. 970 12 n. 8

~ Steyart v. United States, 366 U.S. 1 2

Tomlinson v. United States, 93 F.2d 652 4,5

United States v. Bysozoski, 144 F. Supp. 806 4

United States v. Durham Lumber Co., 363 US

TT! eg APE re SAT noe Pe 3

United States v v. Echols, 253 Fed. 862. 4

United States v. Naples, 192 F. Supp. 23 8 n. 6

United States v. Raines, 362 U. S. 17 18, 19

United States v. Trinder, 1 F. Supp. 659 4

Yakus v. United States, 321 U.S. 414 14 n. 10

Statutes: * ma

D. C. Code (Sapp. VIII, 1960) : N

Sec. 24-301 (b Tree 11

Sec. 24-301(d) Gh Fer Set

See. 24301 (e) 10

mex iii

—* Page

Hawaii Rev. Laws, 1955, § 258-38 _-13 n. 9

Tex. Acts 1937, 45th Leg., p. 1172, ch. 466 “dn. 3

Tex. Code Crim. Proc. Ann., art. 932b, § 1 (Supp.

1958) 5n.3

Miscellaneous:

Comment, Releasing Criminal Defendants <Ac-

quitted and Committed Because of Insanity:

The Need for Balanced Administration, 68

Yale L. J. 293 (1958) 13

Federal Rules of Criminal Procedure:

Rule 11 4

Rule 32 (d) 5

Halleck, The Insanity Defense in the District o

Columbia—A Legal Lorelei, 49 Geo. L. J. 294

(1960) 8 n. 5

Krash, The Durham Rule and Judicial Adminis-

tration of the Insanity Defense in the District

of Columbia, 70 Yale L.J. 867 (1961) 20 n. 15, 23

—

Municipal Court Criminal Rules:

Rule 9 4, 23

Rule 20(d) 23.

Overholser, The Present Status of Release af

Patients from Mental Hospitals, 29 Psychiatrie

Quarterly 372 (1955) 20 n. 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

FREDERICK C. LYNCH,

.

WINFRED OVERHOLSER, SUPERINTENDENT, Sr.

ELIZABETHS HOSPITAL, WASHINGTON, D.C.

——

REPLY BRIEF FOR THE ANBRICAN CIVIL

LIBBRTIES UNION, AS AMICUS CURIAE

The American Civil Liberties Union, whose interest as

amicus curiae is stated in our initial brief, is filing this

Reply Brief pursuant to Rule 42 with the written consent

of both petitioner and respondent. Although we believe

that the central problems in this case are adequately dis-

cussed in the principal briefs, the Government's brief

contain’ certain arguments that, while for the most part

peripheral, require comment. We will consider these

arguments in the order in which they are presented in the

Government's brief.

(1)

ö 2

A. Standards to be Applied to Cases Arising in the District

of Columbia

We would like to make it clear that, while we agree with

the Government that in some respects this case involves

problems of considerable complexity, we do not believe that

these problems can be disposed of by application of the sort

of plain error rule that the Government appears to

believe is applicable to cases—or at least insanity cases

arising in the District of Columbia. (Govt. Br. pp. 21-23)

Neither Fisher v. United States, 328 U.S. 463 (1946), Griffin

v. United States, 336 U.S. 704 (1949), nor any other decision

of this Court establishes such a rule. Fisher did not turn

upon constitutional claims or even issues of statutory con-

struction. Rather, petitioner asked this Court to require

the District of Columbia courts to depart from the common

law and give partial responsibility instructions in criminal

eases. To this the Court replied, ‘‘The administration of

crjninal law in matters not affected by constitutional

limitations or a general federal law is a matter peculiarly of

local concern. Id., at 476. Similarly, Griffin involved only

a question of admissibility of evidence as to which the

Court of Appeals had not spoken. In remanding the case

for further consideration, this Court stated, ‘‘{T]he Court

of Appeals for the District of Columbia ought not to be

denied opportunity to formulate rules of evidence appro-

priate for the District, so long as the rules chosen do not

offend-statutory or constitytional limitations. Id., at 714.

Plainly, these caxes do not stand for the proposition that

this Court should adopt vn attitude of unique deference to

the Court of Appeals where the question is whether the

decision below does ‘‘offend statutory or constitutional

limitations.’’ Indeed, if anything, the inference is quite the

contrary. Compare Stewart v. United States, 366 U.S. 1

(1961), where this Court reversed a criminal conviction in

the District of Columbia on the ground that a question by

the prosecutor that concededly inipinged upon petitioner's

Fifth Amendment rights was prejudicial. And see the

eases listed by Mr. Justice Murphy in his dissent in Fisher in

which this Court has reviewed other issues grising in the

_ District of Columbia. 328 U.S., at 490-491.

Of course, this Court always reviews Congressional legis-

lation with great restraint’’ (Govt. Br. 23) where it is

challenged as unconstitutional. And under well established

principles of constitutional law no objection can be made

simply because Congress enacts a statute for the District of

Columbia that is different from federal legislation affecting

other jurisdictiofis, since District of Columbia problems may

well be different. But this does not mean that the Court

will or should refrain from applying its traditional stand-

ards in dealing with other corstitutional objections to such

statutes or from using ordinary principles of construetion

in interpreting then..

So far as the District of Columbia courts are concerned,

there are, to be sure, certain types of local law issues as to

which they may have special competence, just as other

Ceurts of Appeals may be thought to be in an advantageous

position in construing certain questions of state law. See,

v.g., United States v. Durham Lumber Co., 363 U.S. 522, 527

(1960). As we have indicated, we believe that many

Durham Rule !<sues normally fall in this category. Rut this

case does not raise issues concerning the scope or appli-

eation of the Durham Rule, and we fail to see why the Court

of Appeals should be thonght to be in a better position than

this Court to deal with any of the questions presented here.

Nor does the Government advance any specific reasons

supporting its generalized plea for deference.

In short, we do not believe that the District of Columbia

is some sort of enclave in which the Government can take

.&

7 4

action affecting the liberty of citizens with greater license

because this Court in scrutinizing that action will close one

eye out of ‘‘deference’’ to Congress or the District of

Columbia courts.

5 of Rule 9

As we have indicated in our principal amicus brief

(hereinafter cited as Br.“), we believe it unnecessary for

this Court to reach the question whether under Rule 9 of

the Municipal Court Criminal Rules the trial judge had any

discretion to refuse a guilty plea competently tendered,

because we believe that in any event the judge abused any

discretion he might arguably have had. (Br. p. 45) The

approach we suggest seems to us advisable because it would

avoid a construction of the Rule that might have unforeseen

ramifications.

Nonetheless, we believe it desirable to comment briefly

upon the Government’s argument with respect to the con-

struction issue. (Govt. Br. pp. 2431) The inferences the

Government draws from the course of revision of Rule 11

are nothing more than possible; and the Government's re-

liance upon the Advisory Committee’s citation of United

States v. Trinder, 1 F. Supp. 659 (D. Mont. 1932), is mis.

placed, for there is no indication that the defendants in

Trinder—who were minors, Indian wards of the Gov-

ernment, and apparently unrepresented—objected to the

court’s action in dismissing the prosecution. The same is

true of United States v. Echols, 253 Fed. 862 (S,D. Tex.

1918) (where again there is no fiotation of appearance by

counsel for the defendant). And in United States v. Byso-

zoski, 144 F. Supp. 806 (D. N. J. 1956), the court held that

the indictment did not charge an offense under the proper

statute, but indicated that if a new indictment were brought

the defendant could renew his guilty plea. Finally, the

only other federal case cited by the Government, Tomlinson

5

v. United States, 93 F.2d 652 (D.C. Cir. 1937), is plainly

not in point, since it dealt with an attempt to change a

plea from not guilty to guilty, a matter which is, of course.

entrusted to the court’s diseretion.“ See Rule 32(d), F. R.

Crim. P.

C. Abuse of Discretion

With respect to the question whether the trial judge

abused his discretion in refusing to accept the guilty plea

(assuming arguendo that he had such diseretion), we wish

to comment only upon the Government's reliance 888

certain authorities.”

The cases cited in our prior brief in which courts have

ruled that only the defendant may raise an insanity defense

are particularly relevant, as we pointed out, because they

were rendered in jurisdictions that have mandatory commit?

ment statutes. (Br. pp. 48-50) In contrast, the Texas

decisions relied upon by the Government (Govt. Br. pp.

29-30) were rendered in a jurisdiction in which, so far as

we have been able to discover, there was at the time no pro-

vision at all for commitment after acquittal on grounds

of insanity, much less for mandatory commitment.“ Where

While we considered it advisable to point out the irrelevance of

Tomlinson, we do not believe that the Government's use of the case sug-

gests it is relying upon it. (Govt. Br. pp. 30-31) It hardly could,

in view of its concession that petitioner's initial pleas of not gui!ty in

the case at bar should be disregarded because they were apparently en-

tered when petitioner was without a lawyer and, although he waived

counsel . . . there is serious doubt that he was competent at the time.”

(Govt. Br. pp. 23-24)

2 While the Government does not eite these authorities in connection

with this issue, we believe they are relevant sinee tiey deal with the

defendant's right to control the introduction of the insanity defense,

and this in turn has a direct bearing upon the trial judge's decision to

aceept or reject the guilty plea.

3 Under the statute in effect today, there is no commitment unles< the

jury finds that the defendant is “insane at the time of trial.“ Tex. Code

Crim. Proe. Ann., art. 932b, §1 (Supp. 1958). The predecessor statute,

whieh was the same in this respect, dated only from 1937. Acts 1937,

45th Leg., p. 1172, ch. 466.

*

the defendant's interests are vitally affected, the Texas

courts have taken quite a different attitude. In Ex parte

Hodges, 314 S. W. 2d 581 (Tex. Cr. App. 1958), under a

newly established procedure, the state had secured from the

court, over the defendant’s objection, a pre-trial determi-

nation with respect to sanity. The jury found him sane at

the time of the offense but insane at the time of the hearing,

and consequently the trial was postponed. The appellate

court held that conducting this hearing over the defendant’s

objection, entered by advice of counsel, deprived him of the

right to a speedy trial and the right to assistance of counsel.

The Government also contends that Davis v. United

States, 160 U.S. 469 (1895), stands for the rule that the .

insanity defense ay be raised by the prosecution or the

court against the wishes of the defendant. (Govt. Br. pp.

36-37) Entirely apart from the consideration that the

appellant in Davis was not subject to a mandatory commit-

ment law, the fact is that Davis simply does not stand for

the rule advanced by the Government. In Davis the defend-

ant had raised the insanity defense and had relied upon it

heavily, and the issue decided by this Court was simply

whether the trial judge had correctly instructed the jury

with respect to that defense. The entire opinion was

written within those terms of reference, and we are con-

vinced that not even by the most prodigious straining can

Davis be read to support the Government’s position. And

if the ‘‘rule prevailing in the federal courts’’ is that in-

sanity ...can be raised by either the court or the prosecu-

tion’’ (Govt. Br. p. 36), we can say only that Davis does not

establish the rule, the Government cites no other cases in

which it has been applied, and we know of none outside the

District of Columbia.

In this connection, it is noteworthy that the Government

distinguishes Rex v. Oliver, 6 Cr. App. 19 (1910), on the

ground that the language from that case cited in our brief

. 7

‘*was uttered in a case in which insanity had been raised as

a defense by the defendant....’’ (Govt. Br. p. 38) For some

reason the Government apparently thinks that considera-

tion not important with respect to Davis. Moreover, as a

reading of these two cases will disclose, the language from

Oliver is unequivocally addressed to the issue here involved,

whereas the Davis opinion does not even purport to deal

with that issue.“

D. Construing the Statute Not to Apply Where the De-

fendant Does Not Raise the Insanity Defense or

Alternatively Where He Attempts to Plead Guilty

With respect to this issue, we believe it necessary to com-

ment only upon the Government’s response to our argument

that a literal reading of the statute would not sustain the

Government's position because under such a reading an

affirmative finding of insanity would be a prerequisite to

4 We find unexceptionable, for example, the language quoted by the

Government—“whenever the condition of the prisoners mind is put in

issue by such facts proved on either side” (Govt. Br. p. 36)—since all

that this means, in the context of a case -in which the defendant relied

upon the insanity defense, is that he was entitled to take advantage of

relevant evidence introduced by the Government. —

We are obliged to note that, like the Government, we have t searched

the English cases thoroughly. (Govt. Br. p. 30 n. 13) We ¢, how-

ever, that the Royal Commission did. Still, we must call to the Court's

attention a very recent case in which one justice, in dicta, indicated that

he would not abide by the traditional rule. Bratty v. Attorney General

for Northern Ireland, 3 Wkly. L.R. [1961] 965, 980. His remark was

made, however, in connection with the question whether, if the accused

defends on grounds of “automatism” (involuntarism), the prosecution

ean urge that his evidence relates to insanity and not to failure of the

prosecution to prove that the act was voluntary. See Regina v. Kemp,

[1957] 1 Q.B. 399. The difference is considerable, since m England the

burden is on the defendant to establish insanity. See Bratty v. eu

General for Northern Ireland, pra, at 981. This factor, it

noted, makes the English general rule particularly

petitioner, since where the defendant must prove insanity

substantial factual basis for commitment after acquittal on grounds of

insanity than there is in the District of Columbia.

—

„

8

commitment. (Br. pp. 51-52) While it is not clear to us

whether the Government denies that a literal reading would

lead to this result, the Government does, at any rate, assert

that Congress was ‘‘well aware of existing practice in the

District of Columbia’’ (that a reasonable doubt as to sanity

sufficed for acquittal) and consequently used the words

‘acquitted solely on the ground that he was insane’ to mean

‘found not guilty -by reason of insanity,’ which of course

means not guilty because there was a reasonable doubt as

to the accused’s sanity. (Govt. Br. p. 44 n. 31) We are

not advised as to why the Government is so confident about

the nature of Congress’ information,“ nor why, whatever

that information was, it is clear that Congress intended

language that seems to say one thing to mean something

else. At any rate, the e dae argument hardly

counters ours, which was simply that the question could

not be settled on the basis of a literal reading of the statute.*

f

Halleck, The Insanity Defense in the District of Columbia-—A

L.J. 294, 307 (1960) (The language used in the

indicates that Congress was laboring under the pre-

sumption that “a verdict of ‘not guilty by reason of insanity’ in the Dis-

Columbia in 1955 represented an affirmative finding by the jury

defendant was in fact insane.”)

Government also asserts that the literal construction we describe

produce an “absurd” result. (Govt. Br. p. 44 n. 31) Given the

adjective, we are not sure what it is that the Government

since a number of states have commitment procedures that de-

upon a finding of insanity at the time of commitment, as we pointed

in our principal brief. (Br. p. 31 n. 20) Moreover, it is perhaps

altbough the Court of Appeals has rejected the construction

statute we helieve to be suggested by a literal reading, Ragsdale v.

Orerbolser, 281 F.2d 943, 947 (D.C. Cir. 1960), at least one district judge

expresed a contrary view. See United States v. Naples, 192 F. Supp.

23, 40 (D. D.C. 1961).

i

7

epetdbaes

aA

1

9

E. Construing the Statute Not to Apply Where the Crime

Charged Is a Non-Violent Misdemeanor

The Government urges first that the Court should not

consider whether the commitment statute should be con-

strued not to apply to non-violent misdemeanors because

this argument was not made by petitioner in his habeas

vorpus petition, nor to the Court of Appeals, nor to this

Court in the petition for certiorari. (Govt. Br. pp. 44-45)

We submit that refusal of the Court to consider the issue

would not be appropriate under the circumstances of this

case for the following reasons: (1) The issue is one of law

and consequently no fact-finding hearing in the District

Court was necessary. (2) The District. Judge would have

been bound by tle decision of the issue adversely to peti-

tioner in Overholser v. Russell, 283 F.2d 195 (1960). (3)

The issue was considered and decided by both majority and

minority in the Court of Appeals in this case. (R. 37, 41-44)

(4) Consequently, to tell petitioner to begin all over would

be to subject him to the futility of relitigating an issue

already decided against him in the lower courts—if, indeed,

those courts would entertain a successive petition for habeas

corpus raising this question and if they would permit an in

forma pauperis appeal—without in any way benefitting this

Court in disposing of the question. This Court has even

waived its Rule concerning timeliness of: petitions for

certiorari in order to avoid this type of ‘‘ wasteful eireuity.

Heflin v. United States, 358 U.S. 415, 418 m. 7. (5) Finally,

the suggested construction of the statute would avcid

complicated constitutional questions, and under such cir-

cumstances the Court has based its disposition of a case

upon issues raise] by neither party at any time, even in the

briefs in this Court. See, e.g., Machen v. Mendoza-Martinez,

362 U.S. 384 (1960). ees

Next, the Goveriment maintains that at any rate only

10

subsection 301(d) (the commitment provision) is before the

Court, not subsection 301(e) (the release provision), and

that the language of the former provides no basis for the

suggested construction since the reference to ‘‘dangerous-

ness’’ is found only in the later. (Govt. Br. pp. 46-47) We

discuss infra pp. 16-19 whether this Court should consider

questions relating to subsection 301(e). If we are correct

in our view that it should, then, as we have pointed out, this

Court could adopt the position of the dissenters below by

holding that, whatever might be said about petitioner’s

initial commitment, there is no basis for retaining him in

custody because 301(e) applies only to persons committing

a crime different from the petitioner’s and-the Government

has not instituted civil commitment proceedings on the

basis of the mental examination made pursuant to the

301(d) commitment. (Br. pp. 53, 55 n. 32) ;

But even assuming that only the 301(d) commitment is in

issue, it is our position, as we have stated, that the same

standard of ‘‘dangerousness’’ should apply. We will not

repeat our argument, except to state our belief that it is

more sensible to read the two subsections as reflecting the

same criteria for commitment and release than to read them

as embodying disparate standards, since under the latter

view persons would be committed who would most probably

be able to secure their release hut upon whom would be

imposed the burden of seeking habeas corpus at some

undefined time when the médical examination could be

deemed sufficiently complete.”

™ The Government contends that the statutory language of subsection

ite) does sot imply that a person way be eommitted only for a

offense because it requires release release when “the ‘person will nof

in the reasonable future be

added), rather than when the persen will

Br. p. 47) This assumes that in some

insanity could amount to a finding that the defendant was in fact danger

ous. Of course it could not. ‘

11

8 F. Constitutionality of Subsection 301(d)

This question is fully discussed in our brief and hence we

will restrict ourselves to commenting upon a few specific

points made by the Government.

1. With respect to the Government 's discussion of the

basis for a subsection 301(d) commitment, we would like to

make only two observations. First, the Government errs—

no doubt inadvertently—in ‘Stating that the individual who

is committed after an acquittal is an ‘accused person

confined to a hospital for the mentally ill.“ (Govt. Br. p.

49) (Emphasis added.) This category of persons—those

not yet tried—is dealt with in subsection 301(b), and nat-

urally their commitment involves questions of an entirely

different order than those raised in the case at bar. Second,

the Government does not indicate what basis it has for

asserting that the individual involved... may very well

continue bis harmful conduct unless treated.“ (Govt. Br.

p. 52) There is no finding to that effect and there is no

record of the trial testimony—even assuming contrary to

fact that this testimony would be relevant in a ease like

this where the commitment was based ypon the command

of the statute rather than the discretion of the trial judge;

and, as the Government concedes elsewhere (Govt. Br. p.

55), all that can be inferred from an acquittal on grounds

of insanity ix that there was a reasonable doubt as to

whether the defendant had a mental disease or defect that

caused the criminal act. The Government appears to have

lapsed into the same error with respect to the factual basis

for a subsection 301(d) commitment that is contained in

the Committee Reports. (See Br. p. 27 n. 18)

2. So far as decisions in other jurisdictions are concerned,

we adhere to the summary in our prineipal brief. As we

there state, we have discovered only one case outside the

Distriet of Columbia squarely upholding a mandatory com-

!

12

mitment law, Ex parte Clark, 86 Kan. 539, 121 Pac. 492;

and in the jurisdiction concerned, Kansas, the release pro-

cedures are apparently much more liberal than in the

District of Columbia. (See Br. p. 31 n. 20) The other cases

cited by the Government (except State v. Burris, 169 La.

520, 125 So. 580, which arguably falls in the Clark-eategory)

are either Kansas cases or involve discretionary commit-

ment statutes that require a determination as to present

mental condition as a basis for commitment.“ 2 Br. pp.

54 n. 38, 55 n. 42)

® Nor is this the only factor distinguishing these cases, as the following

brief description of some of them indicates:

Under the statutory procedure involved in People ex rel. Peabody v

i

|

1

171

f

2

1

i

1

had the right to introduce during the tris! evidenee of his present

The statute that was attacked in Ex parte Slaybeck, 209 Cal. 480, 288

Pae. 769, did not provide for commitment except by regular civil pro-

cedures if “it shall appear to the court that the defendant has fully re-

covered his sanity.” Moreover, the statute applied “Where a person

not guilty by reason of insanity.”

oe Be gt Deven, 0 Wek 160, 81 Pac. 552, the statute that was

upheld did not provide for commitment unless the court deemed discharge

to be “manifestly dangerous to the peace and safety of the community.”

The court observed that the defendant “was tried before a jury, to whom

he himself submitted the issue that he was insane when the erime was

committed.” 81 Pac., at 553.

State v. Saffron, 146 Wash. 202, 262 Pre. 970, involved a statute under

— -

13

3. While we have no way of knowing whether ‘‘criminal

defendants who are acquitted on grounds of insanity are

nearly always committed to mental institutions“ (Govt.

Br. p. 53) / we would like to point out that the only authority

cited by the Government is a statement in a Comment

(Releasing Criminal Defendants Acquitted and Committed

Because of Insanity: The Need for Balanced Administra-

tion, 68 Yale L. J. 293 (1958) ), which in turn appears to rely

solely upon the fact that practically all jurisdictions in this

country have some sort of statutory commitment procedure.

Since only in eleven states do these procedures provide for

mandatory commitment (Br. p. 31 n. 20), the basis for the -

assertion in question appears most dubious.’

4. The Government appears to argue that, assuming

arguendo the commitment under 301(d) is constitutionally

infirm, nonetheless the existence of the release provisions of

301(e) preclude relief here because the petitioner is not to

be discharged for defects in the original arrest or commit-

ment, citing Ekiu v. United States, 142 U.S. 651 (1892).

(Govt. Br. p. 54) Wholly apart from the invalidity of the

release provisions (a matter we discuss infra), the Ekiu

principle cannot be applied in this case. Where the Gov-

ernment, by thé time of the habeas corpus proceeding,

establishes its right to custody of the applicant (as it did in

Ekiu by having the*appropriate official make the necessary

findings under the alien exclusion statute), relief must of

course be denied. But in this case the Government estab-

lished no right to custody aside from the mandate of the

conmuitment statute; and surely the Ekiu principle cannot

The court held that this procedure did not deprive the appellant of any

of his constitutional rights “because appellant himself raised the issues. .

262 Pae., at 972.

In our summary of state legislation in our initial brief, we inad-

vertently neglected to include Hawaii among the mandatory commitment

states. See Hawaii Rev. Laws, 1955, § 258-38. :

14

de construed to impose upon the applicant, ence he haus-

demonstrated the invalidity of the commitment, the duty to

prove that the Government could not establish such a right.

To put the matter baldly, the Government, if we read its

argument correctly, is asking this Court to hold that, though

persons may regularly be committed to St. Elizabeths

under an invalid statute, nonetheless they cannot secure

their release unless they affirmatively demonstrate at a

subsequent time that they qualify for release under the

standards established in other sections of the statute. The

implications of such a holding in other areas of the law are

obvious, and we are convinced that no authority can be cited

in support of the argument.

5. It is somewhat different to argue, as the Government

apparently also does (Govt. Br. pp. 54-55), that the ‘‘ public

interest’’ demands that the ‘‘preliminary action’’ of com-

mitment not meet any formal requirements.’’ But the

only case cited by the Government involving personal liberty

that seems to us plainly to apply this principle is

Hirabayashi v. United States, 320 U.S. 81 (1943); “ and it

takes no extended argument to demonstrate that the ques-

tion whether under the war power a curfew could be imposed

on persons of Japanese ancestry in a critical area during a

period of extreme national emergency is wholly different

from the question presented in the case at bar. The burden

of our argument, of course, is that the commitment pro-

cedure in question here is wholly unjustified. In other

words, we do not quarrel with the principle of Hirabayashi,

but say only that the extension of that principle in time of

peuee to a deprivation of liberty of the magnitude of con-

finement in an insane asylum would be entirely unwarranted

and extremely dangerous.

RSS -

in Yakus v. United States, 321 U.S. 414 (1944), the relevant issue

of the validity of a price control regulation was constitutional.

ma

15

6. The Government saggests that the alternative of a

post-trial hearing might reasonably be rejected by Congress

because ‘‘ psychiatrists would not have had a reasonable

opportunity to subject [the person] to observation and

examination and to report their findings, eitinx Ragsdale

v. Overholser, 281 F.2d 943 (D.C. Cir. 1960). (Govt. Br.

p. 57) In some cases they might, in others they might not.

The point is that a hearing would permit the trial judge to

determine whether or not there was safficient basis for a

decision. If at least this were required, commitment for

further examination where the judge deemed that advisable

would not raise problems as serious a- those presented in

this case. We repeat, the availability of simple and equally

E ag alternatives is relevant to the constitutional issue. -

7. The Government contends that commitment on the

3 ‘of a reasonable doubt as to sanity at some prior time

is appropriate because that ic the standard upon which the

person has been acquitted. (Govt. Br. b. 56) This seems to

us but another way to state the quid pro quo argument,

which, as we have pointed out, is unavailable to the Govern-

ment in this ease. (Br. pp. 40-41)

8. The Government urges that commitment may be

justified upon the basix of an inference, based upon the

acquittal, that the defendant ‘‘ may still be mentally ill and

therefore may repeat hi- anti-social conduct if not treated;

that this presumption is clearly reasorable; and that peti-

tioner has erroneously assumed the Government must argue

that acquittal supports a presumption that the defendant

„is in fact mentally ill at the time of the commitment.“

(Govt. Br. p.@1) While the Government correctly describes

the nature of the inference that can be drawn from an ac-

quittal (giving the word may a very broad meaning and

assuming the evidence at the trial does not counter the in-

ference), it fails to come to grips with the veal problem.

Basically, our view is that it ix wholly unreasonable to

f

1

16

ground commitment upon such an inference alone because

it is wholly unreasonable to turn such a tenuous inference

into an irrebuttable presumption. (Br. pp. 26-27)

9. Finally, the Government says that petitioner’s ergu-

ment ‘‘suffers from the fatal assumption that Congress [in

this area] is required to duplicate civil commitment proceed-

ings.’’ (Govt. Br. p. 59) As our discussion of possible al-

ternatives evidences, we do not believe a procedure with

some characteristics not present in civil proceedings would

necessarily be unconsfitutional. All that we say is that

there is no adequate basis for the existing differences

between the statutes.

G. Constitutionality sof the Release Standards

The Government argues, first, that the constitutionality

of the release standards applied under the statute, as con-

strued by the Court of Appeals, is not properly before this

Court. As one reason, the Government maintains that

petitioner attacked his detention ‘‘solely upon the ground

that his commitment was invalid.“ (Govt. Br. p. 63) We

believe that the brogd-gauged attack of the petition for

habeas corpus upon the validity of the section 301 pro-

cedures nnder which petitioner was being held encompassed

the claim that the statute’s release standards were invalid,

at least if they were relied upon by the Government." And

1! See, ¢.g., the following portion of the application :

.. , Section Wi... — on {its face and ss csn-

strued and applied . . . in that — 7

4, fection 901(4), property aeg apie only to defendants

who affirmatively raise the insanity defense.

“2. Section 301 . . fails to papvide that a judicial finding must

be made . . that a defendant is at the time of the trial

mentally ill and dangerous . . « ov im the alternative, re-

quiring an immediate back to the Court with a full bearing

within 2 few days after an automatic qommitment for a judicial —

17

„

the Government did rely upor those standards, for it con-

tended that petitioner had to meet them in order to secure

his release. (R. 8, 11) Thus, it seems to us that from the

start the question whether petitioner could constitutionally

be required to meet the release standards imposed by the

statute has been properly in the case.

In any event, the constitutionality of these provisions is

necessarily before this Court for a wholly. independent

reason, i. c., the Government’s concession that the constitu-

tionality of the commitment provision depends in large part

upon the existence of a habeas corpus remedy ‘‘with

constitutionally sufficient standards governing burden of

proof.“ (Govt. Br. p. 63) Surely the Government cannot

be permitted to take the position that petitioner's attack

upon his commitment must fail because of the existenee of

constitutionally acceptable release provisions and at the

same time block petitioner’s attempt to demonstrate the

constitutional infirmity of those provisions.

If we understand the Government correctly, its argument

is based upon the premise that the release standards are

capable of constitutional application in at least some

instances, and that consequently it cannot be said that, had

petitioner made an appropriate offer of proof with respect

to his mental condition, the standards would have been

invalidly applied. Under this view, petitioner’s argument

finding of present social dangerousness requiring further treat-

ment and deprivation of liberty ig a mental institution.“ (R. 5)

By describing the standard he maintai

Seither an initial or at least an ultimate

12 Of course, it would have heen fufile for petitioner to devote much time

in the lower courts to an attack upon the release standards, since the Court

of Appeals had already rejected that attack in the past. Indeed, the

argument on this point in our principal brief is based entirely upon the

release provisions as they have been construed by the Court of Appeals.

7

18

must be regarded as an attack upon the release standards

as they might be applied to others, and this is not per-

missible under the rule of United States v. Raines, 362

U.S. 17 (1960).

Such an argument misses the mark in all respects. Peti-

tioner’s argument is that the release standards that have

* been clearly delineated by the Court of Appeals are wholly

invalid on their face and are incapable of constitutionally

acceptable application in any case. If he is correct, then

plainly he cannot be expected to make an offer of proof,

si are no constitutionally valid statutory standards

. that offer could be measured. Surely the

courts below could not have fashioned a new standard for

release out of whole cloth, and consequently petitioner

could not be required to make an offer of proof measuring

up to some standard that he (or a court) might consider

valid had Congress enacted it. To put it another way, if the

statutory standards governing release, as construed by the

Court of Appeals, are invalid, then the commitment pro-

cedure is invalid (as the Government implicity concedes)

and there is no warrant for petitioner’s continued detention.

Thus the Government’s concern about the possible inability

of petitioner to satisfy any appropriate standard’’ is

irrelevant (Govt. Br. p. 63); the question is simply whether

petitioner can be held in custody when the only standard

established by Congress, as construed by the lower courts,

is constitutionally invalid. In short, petitioner is attack-

ing the constitutionality of the release provisions as they

affect him, i.e., as they impose upon him constitutionally

— 3 for the securing of his freedom."

13 Our 3 of sociopathie personalities (Br. p. 36) was 8

only to assist in understanding the nature of the standards as defined br

the Court of Appeals. At no point have we argued that petitioner should

secure his release though not a sociopath because “it may be thought to be

4

19

Thus this case is entirely different from the two cases cited

by the Government—Raines, where state officials challenged

the consitutionality of a Civil Rights Act provision because ‘

it might be unconstitutional if applied to private citizens,

and Liverpool, N. F. & P. S. S. Co. v. Commissioners, 113 U.S.

33 (1885), where the Court remanded the case in order to

ascertain whether the statute that was attacked was in fact

applicable to the parties under the cireumstances.

a On the merits of the issue, we would like to add only a

few remarks to what we have already said. In the first

place, in cur view Leland v. Oregon, 343 U.S. 790 (1952).

which involved only questions relating to the latitude a

state has in determining the conditions upder which erimi—

nal responsibility will be fixed upon its citizens, can hardly

be regarded as controlling with respect to the questions in

the ease at bar. All that can be Said‘is that Leland estab-

lishes that imposition of a ‘‘beyond a reasonable doubt“

burden of proof, upon an individual is not in all cireum-

stances decisive of the constitutional question. With this,

of course, we agree. (Br. p. 35) Moreover, it might be

added that Leland is not as far-reaching as the Government

appears to believe even with respect to the issues decided

there. It is not true that this Court affirmed the conviction

even though the State had imposed upon the defendant the

‘burden of proving beyond a reasonable doubt the absence of

one of the essential elements of murder, i.e., that the defend-

ant had a mind capable of committing that offense.“ (Govt.

illegal to subject a sociopath to continuing confinement for failure to

_Satisfy the requirements of the release statute.” (Govt. Br. p. 64)

It may be noted also that, while we attack the statute “on its face” and

“as applied,” throughout we are speaking, on the standards that affect

petitioner directly. The “as applied” diseussion is designed to afford a

narrower basis for disposition, i.e., the provisions are invalid at least where

the individual objected to the raising of the insanity defense and where the

crime with which he was charged was a non-violent misdemegnor. (Br.

pp. 40-43)

Br. p. 71) Or, at any rate, this reading of state law was

explicitly rejected by the majority.“

Nor are we impressed with the Government’s contention

that the courts should defer to the St. Elizabeths’ authorities

because they have the individual under daily supervision

and because ‘‘[cJourts...are not well-equipped to make

medical findings.’’ (Govt. Br. p.73) To be sure, judges are

not experts in the field of psychiatry, any more than they are

experts with respect to a great many other problems that

come before them. But they are experts in viewing in

proper perspective the claims of narrower disciplines, and

they are experts in making decisions that may run against

the tide of popular opinion but that are demanded by the

injunctions of the Constitution that has heen entrusted to

their care, In so acting, they are protected by the wisdom

of the Founding Fathers, who, recognizing the necessity for

placing the ‘‘Thou Shalt Nots’’ that safeguard our liberty

in the hands of decision-makers possessing full independ-

ence, freed the judiciary from the claims of a volatile public

opinion through the provisions of Article III of the

Constitution. The staff members of St. Elizabeths, on the

other hand, not only cannot be expected to share the judi-

ciary’s type of expertise, but do not share the judiciary’s

independence of decision." In our view, a due regard for

14 “Although a plea of insanity was made, the prosecution was required to

prove beyond a reasonable doubt every element of the crime charged,

ineluding, in the case of first degree murder, premeditation, deliberation.

malice and intent.” Id, at 794. See aleo id., at 798.

15 See, e. g., Krush, The Durham Rule and Judicial Administration of the

Insanity Defense in the District of Columbia, 70 Yale LJ. 867, 947 n. 214

(be hospital authorities are conservative about recommending release

because of concern over public criticism in the event that the defendant

commits another offense. The superintendent of St. Elizabeths Hospital

has stated that, In the ease of persons who have been Grrested, particularly

if charged with serions offenses, a greater degree of conservatism must be

practiced in the matter of release, in consideration of the attitudes of the

public.” Overholser, The Present Status of Release of Patients from

Mental Hospitals, 29 Psychiatric Quarterly 372 (1955).”)

21

these considerations compels the conclusion that the release

provisions in effect in the District of Columbia depart

radically from the allocation of decision-making power that

is necesary to insure the preservation of fundamental

freedoms.

H. Deprivation of Right to Counsel

Although we felt obliged to bring the issue of deprivation

of counsel to the Court’s attention after we discovered it in

the record, we believe, as we have stated, that there are more

appropriate grounds for disposing of the case. Nonethe-

less, we feel compelled to deal at least in summary fashion

with the Government’s argument on the merits of the issue.

(Govt. Br. pp. 75-77)

First, since the Government seems not to urge with

determination the contention that the Sixth Amendment

right to counsel does not extend to misdemeanor cases, we

will content ourselves with the observation that, as the

Court of Appeals for the District of Columbia has recog-

. nized, there is nothing in the Sixth Amendment or in this

Court's opinions to suggest that counsel may be denied

a defendant who may be sent to jail for a year on a mis-

demeanor charge (in the instant case, for two years on con-

secutive sentences). Evans v. Rives, 126 F.2d 633 (1942).*

We are aware of no decision to the contrary, nor does the

Government cite any.” ;

1 See, e. g., Bute v. Illinois, 333 U.S. 640, 660 (1948) (“The practice in

the federal courts as to the right of the accused to have the assistance of

counsel is derived from the Sixth Amendment, which expressly requires’

that, in all criminal prosecutions in the courts of the United States, the

' aceused shall have the assistance of counsel for his defense.“); Foster v.

Illinois. 332 U.S. 134, 136-137 (1944) (“By virtue of [the Sixth

Amendment] . . . counsel must be furnished to an indigent defendant

prosecuted in a federal court in every case, whatever the cireum-

stances.”). See 2

None are cited in the secondary source referred to by the Government.

(Govt. Br. p. 75 n. 68)

— —

Next, we adhere to our position that in federal cases (and

in state capital cases) no specific prejudice need be shown

if assistance of counsel is not provided. ‘‘The right to have

the assistance of counsel is too fundamental and absolute to

allow courts to indulge in nice calculations as to the amouht

of prejudice resulting from its denial.’’ Glasser v. United

States, 315 U.S. 60, 76 (1942). Nor do we understand how

the Government can read Hamilton v. Alabama, No. 32, O. T.

1961, to the contrary, for there the Court specifically stated

that it would ‘‘not stop to determine whether prejudice

resulted. (Slip Op. p. 3)

This does not mean, of course, that denial of assistance of

counsel at any point after an accusation is necessarily a

violation of the Sixth Amendment. It must be determined

whether denial occurred at an important stage of the pro-

ceedings. See Hamilton v. Alabama, supra. In Canizio v.

New York, 327 U.S. 82 (1946), and in the other cases cited by

the Government, practically all of which involved absence of

counsel at arraignment, the proceeding in question was not

of sufficient importance to warrant invocation of the general

rule. (For a contrary view, see Evans v. Rives, 126 F.2d

633, 641 (D.C. Cir. 1942); Michener v. Johnston, 141 F.2d

171, 174 (9th Cir. 1944); and Robinson v: Johnston, 50 F.

Supp. 774, 778 (N.D. Cal. 1943).) Under such circumstances,

a showing of specific prejudice is necessary, but nat

otherwise.

In the case at bar, we believe that failure to furnish -

counsel occurred at a critical stage of the proceedings.

Coneededly, counsel could have objected at the trial to the

hospital report’s containing a finding ag to petitioner’s

sanity at the time of the crimes and to the fact that the

report was submitted by the Assistant Chief Psychiatrist.

However, it was at the arraignment that the court ordered

the mental examination, and consequently it was at that

time that counsel would be called upon to object that there

23

was insufficient warrant for such examination. It was at

arraignment that counsel might also have attempted to

plead guilty, and the trial judge might have been more

amenable to receiving such a plea at that time. (We do not

know whether, when petitioner attempted to enter a guilty

plea subsequently, the trial judge treated it as an initial

plea under Rule 9 or as an attempted withdrawal under

Rule 20(d).) And it was at arraignment or immediately

thereafter that counsel might have advised petitioner not

to cooperate with the examining physician, at least with

respect to matters relating to his sanity at the time of the

crime. See Krash, The Durham Rule and Judicial Adminis-

tration of the Insanity Defense in the District of Columbia,

70 Vale L. J. 867, 911-912 (1961) (*‘ [E]ffective protection of

the privilege against self-incrimination may also require

that no accused person be examined who is not represented

by counsel. Further, the rights of the accused would seem

to require that he be advised that he need-not cooperate

with the government’s psychiatrists, at least so long as

he does not interpose an insanity plea.’’). See also id., at

918-921. Under these circumstances, whatever may be the

proper view of the significance of arraignment under other

circumstances, where action is taken by the trial judge

under section 301 at that time it seems clear that this is

a stage in the criminal proceeding at which assistance of

counsel is required by the Sixth Amendment.

For the foregoing reasons, as well as for the reasons given

in our initial brief, it is our view that the judgment of the

Court of Appeals for the District of Columbia Circuit

should be reversed and that the case should be remanded

with directions that respondent be ordered to discharge

petitioner from custody forthwith.

Faaxces M. Suna,

734 Fifteenth Street, N. V.,

Washington, D. C.

Lawrences Speier,

1612 I Street, V. W.,

Washington, D. C.

' Attorneys for Amicus Curiae.

>.

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