Lynch v. Overholser

PETITIONER:Lynch
RESPONDENT:Overholser
LOCATION:United States Court of Appeals District of Columbia Circuit

DOCKET NO.: 159
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 369 US 705 (1962)
ARGUED: Jan 15, 1962
DECIDED: May 21, 1962

Facts of the case

Question

  • Oral Argument – January 15, 1962 (Part 1)
  • Audio Transcription for Oral Argument – January 15, 1962 (Part 1) in Lynch v. Overholser

    Audio Transcription for Oral Argument – January 15, 1962 (Part 2) in Lynch v. Overholser

    Burke Marshall:

    To clear up this point of the way that I worded my statement about the commission of a crime, I think that on the record, there is no challenge to the fact that the government proved in this trial all the material elements of the criminal acts except sanity and that’s all that I meant is that there’s no question but that it started with the commission of acts which would be criminal were not it for depe — for the defendant’s insanity.

    Earl Warren:

    (Inaudible)

    Burke Marshall:

    There is no record, Mr. Chief Justice.

    I think there is a presumption of regularity and, as I say, the — there is no challenge to it.

    Earl Warren:

    (Inaudible)

    Burke Marshall:

    There is no transcript of the trial proceedings.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    No, there was no suggestion by the Court of Appeals, Mr. Justice Frankfurter.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well, I do not think that, in this particular case, there’s any dispute as to what happened in the Municipal Court, any basic dispute.

    The record does show that when the case came on to trial before the chief judge of the Municipal Court, he had before him two reports from the hospital on the mental condition of Mr. Lynch.

    One was about three weeks old.

    That one said that, at that time, Mr. Lynch was incompetent, unable to understand the proceedings against him, unable to assist counsel, and that that report recommended commitment and further treatment at the time.

    The other report was dated just the day before the trial.

    That said that he had made improvement.

    That he was now able to understand the nature of the charge and to assist counsel, but that at the time the crimes were committed, he had been suffering from a mental disease, which the report diagnosed as a manic depressive psychosis, which is a very serious mental disease and that, in the opinion of the psychiatrist who wrote the report, the crimes or the criminal acts had been a product of that mental disease.

    Those two reports were before the judge.

    Felix Frankfurter:

    Are they (Inaudible)

    Burke Marshall:

    Yes, they are, Mr. Justice Frankfurter.

    Earl Warren:

    Mr. Marshall, who made — who made the decision that (Inaudible)

    Burke Marshall:

    Mr. Chief Justice, it is — the record simply doesn’t show what happened on that point.

    In fact, the record doesn’t show whether the court, on its own motion, called the psy — psychiatrist or whether the government called him or even whether or not it was on the case on — in chief.

    It does show — all that it shows is that there were these two reports before the judge and that it was in the context of those two reports that the judge rejected the plea of guilty and proceeded to trial.

    (Inaudible)

    Burke Marshall:

    At the trial, yes, Mr.–

    (Inaudible)

    Burke Marshall:

    No, it is not.

    (Inaudible)

    Burke Marshall:

    Well —

    (Inaudible)

    Burke Marshall:

    But the —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Mr. Justice Frankfurter, I’m afraid that I just can’t answer that question in general because I’m not familiar enough with the proceedings before the Municipal Court.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    I think it —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    I think that’s correct, Mr. Justice Frankfurter, but I don’t think that it raises a problem in this case because the petitioner, as I understand this case, does not really challenge anything that went on in the Municipal Court, except it —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    No, Mr. —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well, I think the point is this, Mr. Justice Frankfurter, that he was not tried on a question of sanity or insanity.

    He was tried for the commission of two criminal acts and in that trial there was evidence of his mental condition and on the basis —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Mental condition at the time of the commission of the crimes.

    Potter Stewart:

    The fact that he was tried at all raises the presumption that there was a finding that he was competent at the time of the trial, doesn’t it?

    Burke Marshall:

    Yes sir, he was competent at the time of the trial.

    The judge necessarily had to find that before he put him to trial.

    Potter Stewart:

    And, therefore, presumably he entered the trial at the time of the commitment.

    Burke Marshall:

    That’s correct Mr. Justice Stewart, but on that point, of course, there is a great difference between being competent in the sense of being triable, of being able to understand the proceedings and being under the District of Columbia rules legally —

    Potter Stewart:

    Responsible —

    Burke Marshall:

    — responsible criminally.

    Potter Stewart:

    I understand, I understand.

    Felix Frankfurter:

    Therefore, if one man before him, the testimony of the petitioner, testified regarding the responsibility (Inaudible) and make it sufficiently, implicitly (Inaudible) to what he testified, is one because you say that the commitment as of now was not without justification?

    Burke Marshall:

    Well, Mr. Justice Frankfurter, I think that I’d better clear up this confusion.

    The — Mr. Arens did not say — I did not understand him to say and there’s nothing in the record that alleges that Lynch was or was not competent at the time of the trial.

    Lynch, on his petition for habeas corpus, does not allege sanity right now.

    There is no claim that he has recovered from the mental disease which existed at the time of the commission of the crimes, but that does not mean that the court had, in order to make this commitment, make a finding at the trial that he was then insane.

    The court proceeded under the statute and the statute operates from a finding of not guilty by reason of insanity.

    Once that finding is made by a court or by a jury in a criminal proceeding, under the statute in the District of Columbia, the commitment follows as a matter of law.

    Well–

    Felix Frankfurter:

    (Inaudible) the meaning that whether that is perfectly proved that at the time of commitment, he was sane.

    He was (Inaudible) and, having no evidence or having evidence the other way (Inaudible) as he is not under the statute, but the statute is applied.

    That might make one result on the validity of the statute which gives presumption (Inaudible) mental health irresponsibility at the time of the commission of this act and write another (Inaudible)

    Burke Marshall:

    Well, I do not think, Mr. Justice Frankfurter, that on this record it could be said that there was any affirmative evidence of sanity at all, of any court — of any kind at any point, but I don’t want to give the impression that the court found him to be insane at the time of his trial because that would be a misstatement of what the court did.

    William J. Brennan, Jr.:

    But you do say, I gather, that the court did find him insane at the time of the commission of the offense that — or that the verdict implies an affirmative finding of insanity at the time of the commission of the offense.

    Do you say he —

    Burke Marshall:

    No, Mr. Justice Brennan, I don’t say that.

    The — under the Davis case in the federal system and under the Tatum case in the District of Columbia, once the evidence of insanity is introduced, put in issue at all, either by the government or by the defense, then there is a burden on the government to prove sanity at the time of the commission of the offense beyond a reasonable doubt.

    William J. Brennan, Jr.:

    So that all that we actually have here then, indeed we have no finding of any kind on this record that at the time of the commission of the offense, he was in fact insane.

    All that we have is that there is a reasonable doubt of his sanity which is implicit in the verdict and also is all that we’re to take the finding of the judge to mean.

    Burke Marshall:

    That’s right.

    That’s the only finding, Mr. Justice Brennan.

    On the other hand, as I say there is no allegation of sanity either at the time of the commission of the offense or at the time of trial or now.

    He does not on this record, raise the question of insanity.

    What is the date of the offense being charged?

    Burke Marshall:

    I believe that the offenses were in October and the trial was in December.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    That’s I think correct, Mr. Justice Frankfurter, and I think the —

    William J. Brennan, Jr.:

    Well, that isn’t true that that’s not the premise, Mr. Marshall, as I understood it.

    The premise is not that there was any finding of insanity in October.

    Felix Frankfurter:

    There is.

    Burke Marshall:

    No —

    William J. Brennan, Jr.:

    But, Mr. Marshall had just said that there it is not.

    Burke Marshall:

    Mr. Justice Frankfurter, the effect of the finding of not guilty by reason of insanity is to find that there was — the government has not proved his sanity at the time of the commission of the offense.

    It is not an affirmative finding under the statute of insanity.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well, with that amendment, I think that your statement is correct that the carryover, the time lag, between what — the finding that the court did make as to mental competence was from October which was the time of the commission of the offense until December.

    Felix Frankfurter:

    But, I might have a different case.

    I might have a different case if the crime for which he has been charged and as to which he was indicating (Inaudible)

    Burke Marshall:

    That’s right, Mr. Justice Frankfurter.

    Burke Marshall:

    Of course, unless he disappeared or something, there would normally not be a —

    Felix Frankfurter:

    But there might be a finding that (Inaudible)

    Burke Marshall:

    That’s right.

    Earl Warren:

    Mr. Marshall, from the standpoint of procedural due process finding the evidence here (Inaudible), when does the record show that he first had not been (Inaudible) for his sanity.

    Burke Marshall:

    Well, Mr. Chief Justice, the first knowledge, I suppose, that he had — that he was actually going to try — trial was when the court rejected the plea of guilty.

    Now, that —

    Earl Warren:

    That’s on the day of the trial.

    Burke Marshall:

    That’s on the day of trial, Mr. Chief Justice.

    Of course, I would not accept that characterization of what went on.

    The trial court did have before it, when it was faced with this defendant in this case, it did have before it these two psychiatric reports which indicated — which really constituted overwhelming, I think, evidence of his innocence at that time.

    The psychiatric reports showed that it was the opinion of the psychiatrist who examined him that at the time of the commission of the offenses, he was the victim of a manic depressive psychosis which is a very serious mental disease in any terms and that, as a result of that, he did what he did which was the criminal acts and, so that, it was in that context that that was the situation the trial judge was faced with and —

    Earl Warren:

    Do you mean the trial judge prejudged him before the he got to trial?

    Burke Marshall:

    No.

    I — Mr. Chief Justice, I mean that when the court — when the trial judge came in and was faced with this change in plea in the entrance of a plea of guilty, he had before him these two psychiatric reports and the psychiatric reports I think, as I say, indicated to the trial judge really very, very strong evidence of innocence, of innocence of the crimes with which this man was charged.

    So that, the court was faced with a position of having to accept, if he did what the defense counsel wanted to do — him to do, accept the plea of guilty under situation when he knew that the man who was pleading guilty was not in fact guilty or at least, Mr. Chief Justice, he is — he had overwhelming reason to believe that from what was plainly in front of him at that time.

    I think that it’s in that context that we have to look at the — at the propriety of what the trial judge did.

    Earl Warren:

    Mr. Marshall, are you sure (Inaudible) the only — the only thing that got to my mind is, is the procedure that he’d gotten.

    The one that should and can be followed in the federal cases in order to deprive the man (Inaudible) he had the burden of proving beyond a reasonable doubt (Inaudible) defense?

    Burke Marshall:

    Well, Mr. Chief Justice, I would — I don’t know what would happen in that case.

    I don’t know what would happen either at the trial court or, even more importantly, at the time of the release procedures under the statute.

    There is no doubt that the statute covers all kinds of crime.

    I mean, the mandatory commitment statute of the District of Columbia covers crimes that are brought — are charged by indictment and crimes that are charged by information and crimes that are brought before the juvenile court, so that there isn’t any limitation in the statute based upon the magnitude of the crime, but we are dealing with a series of procedures that starts with the trial judge.

    Now, the trial judge, in considering a plea of guilty in the Municipal Court of the District of Columbia has, under the rules of that court an area of discretion.

    In this case, with the evidence before him, which was not a very minor mental aberration but of a very serious mental disease and with the crimes before him — that were before him, exercised his discretion in that case in the way that he did.

    I think it’s very difficult to tell how a trial judge would exercise his discretion in another case.

    And —

    Earl Warren:

    (Inaudible) in this case have accomplished his purpose if he had said that this is probably a minor offense.

    To me (Inaudible), he’s mentally ill.

    I’m not going to try him this time for this crime.

    We’ll dismiss this proceeding and I’ll instruct (Inaudible) simple insanity proceeding against him.

    Earl Warren:

    And then, if on that jury, he was found to be not mentally ill, then the prosecution who will give the charge for this (Inaudible)

    Burke Marshall:

    I think Mr. Chief Justice that no that course of action was not opened to the trial judge.

    Earl Warren:

    Why?

    Burke Marshall:

    Because I don’t think that the trial judge has the authority or power just to dismiss a criminal proceeding when the government has proof that the man did it — did the act.

    I don’t think that that was a course.

    Now —

    Earl Warren:

    Suppose the judge had offered a dismissal.

    Burke Marshall:

    No, Mr. Chief Justice, I don’t.

    I think that the judge has to proceed to trial if the government wants to bring it to trial.

    Potter Stewart:

    That’s — you’re getting into the next case.

    [Laughter]

    Burke Marshall:

    Well, I’m not acquainted with the next case, Mr. Justice.

    [Laughter]

    Maybe that’s fortunate.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well —

    Felix Frankfurter:

    I know —

    Burke Marshall:

    We don’t have a Burge’s law, Mr. Justice Frankfurter, in this case.

    I can answer the question in terms of this case.

    I can’t answer it in terms of every criminal trial in the District of Columbia because I don’t know, it may vary.

    But, in this case, the psychiatrists that testified were all clearly independent witnesses in the sense that their testimony in any normal case would’ve been contrary to the best interest of the prosecution.

    They testified — usually if the government calls a psychiatrist, it does so in rebuttal and it does so to rebut defense testimony of other psychiatrist who says that a man is insane.

    The testimony in this case, though it is not in the record, I think, presumably must be of all had been to the effect that the defendant was insane at the time of the commission of the offenses.

    Potter Stewart:

    Mr. Marshall, while we’re little a field, we’re dealing here of course with a statute applicable only to the District of Columbia.

    Am I right in understanding that the generally applicable federal statutory scheme provides that in the — in criminal cases tried anywhere in the United States, except the United — District of Columbia, that if a person pleads not guilty by reason of insanity and is acquitted by the judge or by the jury upon that plea, that he walks right out of the courtroom and that the district judge has no duty and no power to do anything about it.

    Burke Marshall:

    That, I think, Mr. Justice Stewart is a necessarily — necessary result of the federal system, except in the District of —

    Potter Stewart:

    Because these are matters of state concern —

    Burke Marshall:

    That’s right.

    Potter Stewart:

    — and not federal concern.

    Burke Marshall:

    That’s right.

    Burke Marshall:

    It’s — the District of Columbia is, as this Court has recognized, is a peculiar mixed jurisdiction —

    Potter Stewart:

    Yes.

    Burke Marshall:

    — and the matters that we’re dealing with in this case are matters of District of Columbia law and it’s —

    Potter Stewart:

    So, the answer to my question is yes.

    My understanding is correct, he walks right out —

    Burke Marshall:

    That’s correct.

    Potter Stewart:

    — a freeman subject of course to any commitment procedures which anybody might want to invoke under this applicable state law.

    Burke Marshall:

    That’s right.

    Potter Stewart:

    Now —

    Burke Marshall:

    I believe that, normally, it is the practice to refer the matter to the state civil authorities to — for a commitment proceeding, but there is no — nothing under the statute and I’m not sure that there is anything constitutional that the federal government could do in those circumstances.

    Potter Stewart:

    Let me ask you another question.

    Is there any — is there any state statute which is like this District of Columbia statute which makes commitment absolutely inflexibly imposable —

    Burke Marshall:

    I believe —

    Potter Stewart:

    — and doesn’t allow the judge any discretion at all.

    Burke Marshall:

    I believe, Mr. Justice Stewart, that there are 11 states that have mandatory commitment statutes that are like this and the British statute is like this.

    There are other statutes where, although they do not require a present finding of insanity, leave the judge — the trial judge some discretion.

    If you add it up, the states which have either an inflexible mandatory commitment law or a commitment law which does not in by its terms, require a present hearing and finding on the issue of insanity, I think there are about 29 or 30 states like that.

    As I say, that’s the British practice.

    Before this statute was —

    Earl Warren:

    (Inaudible)

    Burke Marshall:

    Where there is a finding of not guilty by reason of insanity, which is what we have here, that either the statute requires commitment right then and there, as does this statute which is 11 states, or it permits the trial judge to commit him without any intervening hearing, but as a matter of discretion and not as a mandatory matter, as is true under this statute.

    That’s a general summary, Mr. Chief Justice.

    There may be minor variations in it.

    Earl Warren:

    (Inaudible)

    Burke Marshall:

    There are, Mr. Chief Justice.

    There are some that require a full hearing.

    I think that’s only three states, but there are about 18 additional states which require some kind of an intervening hearing.

    I think that in this case, speaking to the Municipal Court’s discretion and his exercise of discretion, that he did — that the existence of the statute in the District of Columbia affected the exercise of his discretion in that he did have a statute before him.

    The statute had been passed by Congress in a specific situation by reason of the developments of the Durham rule.

    The intent of the statute to apply to acquittals by reason of insanity was very specific and I think that, as I say, in exercising his discretion under the rule, he did have to take into account this congressional intent in the statutory situation.

    Burke Marshall:

    In addition, it seems to me that it is in a way remarkable that we have the petitioner and we have the American Civil Liberties Union, here, arguing for a rigid rule of law, a rigid rule of law that would require a trial judge faced with this kind of a situation to ignore evidence of insanity, which is evidence of innocence, and proceed to accept a plea of guilty.

    In fact, the cases — some of the cases in the District of Columbia, in this area, have suggested that that — it would be an abuse by the trial judge to accept a plea of guilty under the — those circumstances, that failure of trial counsel to raise the point under those circumstances would be an ineffective assistance of counsel.

    William J. Brennan, Jr.:

    Well, as I understand it, Mr. Marshall —

    Burke Marshall:

    Now, I am speaking —

    William J. Brennan, Jr.:

    It goes even beyond this, doesn’t it?

    Do I correctly understand the District of Columbia cases to say that if the prosecution has knowledge of facts which might indicate mental disability at the time of the offense, the prosecution is bound to follow that contention in the case?

    Burke Marshall:

    Well, Mr. Justice Brennan, I think that that would be the duty on government prosecution.

    William J. Brennan, Jr.:

    Well, my question was —

    Burke Marshall:

    But —

    William J. Brennan, Jr.:

    — is there anything in any of the District of Columbia cases which suggest that that is the view?

    Burke Marshall:

    I was going to go on and say I don’t know — I don’t know that to be true in the District of Columbia cases.

    I may be wrong about that, but I don’t know of any statement to that effect, but I must say that I think it would be unconscionable on the part of the government not to bring evidence of this nature to the attention of the trial judge.

    We are talking at this point simply of his discretion in doing what he did.

    Thurman Arnold, when he was on the Court of Appeals here, said that it offended the collective conscience of our society to impose a punishment where we could not impose blame.

    If this rule of law is — that is being contended for were to operate it would be a necessary result of it.

    The trial judges would not have discretion but would be required by this Court to accept plea of guilty and to impose punishment where it could not impose blame or at least where it would have overwhelming reason to believe that it should not impose blame.

    Earl Warren:

    But, Mr. Marshall (Inaudible) and he’s only charged with a misdemeanor, shouldn’t either the court or the prosecution notify at the trial it is not going to contend his guilt but only the fact that he is insane, thus, giving him an opportunity to prepare his defense to get the witnesses, that he needs to get the psychiatrist that he needs, and then (Inaudible) but the prosecution couldn’t get to court in the abnormal way.

    We must concede that it’s abnormal for the prosecution to offer evidence in sanctity of the penalty in this case in chief.

    Wouldn’t the offense, in the nature of the prosecution, given that notice of (Inaudible) prepare if he wanted to contest the question of his insanity?

    Burke Marshall:

    Well, Mr. Chief Justice, if there were any suggestion here, any allegation, that the defendant had been in — had been prejudiced by this or if the — his lawyer had asked for a continuance at the time that the re — plea of guilty was rejected, I think that maybe the Court of Appeals for the District of Columbia might have reversed if the trial court had refused to grant a continuance, but this came up in a context where the man had been confined in the District of Columbia General Hospital for observation.

    He really had no — there is no suggestion at all that he hadn’t done these acts that were defined as being criminal in the District of Columbia Code and I just think that the possible prejudice of that sort is not presented in this case and, as I say, it was not raised.

    There is no suggestion of that raised in the trial court.

    Earl Warren:

    May I ask you what (Inaudible) if the petitioner did prevail in this case and which position he was released from custody to Saint Elizabeths Hospital from the authorities that the hospital thought that he was still insane.

    Could they then initiate (Inaudible)?

    Burke Marshall:

    I believe, Mr. Chief Justice, that under the District of Columbia law when he is confined in a hospital, including Saint Elizabeths, because of mental illness, that the superintendent of that hospital can initiate civil commitment proceedings.

    Earl Warren:

    (Inaudible)

    Burke Marshall:

    I’m not fully acquainted with all the procedures under the civil commitment, but I think that would certainly be a basic and maybe the relevant difference in this case.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    The —

    Felix Frankfurter:

    Are you suggesting that (Inaudible)?

    Burke Marshall:

    No, I don’t think so, Mr. Justice Frankfurter.

    He did make the point about not having enough time to prepare.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    But I don’t think that Chief — Judge Fahey’s basic point was that the commitment was unlawful.

    Felix Frankfurter:

    I know, but he said that what was an unfair — an unfair trial turning a proceeding for a commitment.

    Burke Marshall:

    That’s right.

    Felix Frankfurter:

    Now, in that case (Inaudible) case, but that issue is not handled (Inaudible)

    Burke Marshall:

    That’s right.

    He states the opposite, I believe.

    Felix Frankfurter:

    Yes.

    Now on that assumption or assuming that (Inaudible) and I hope you’d say something as to what this Court would do assuming that this, otherwise, mean that (Inaudible)

    Burke Marshall:

    Well, Mr. Justice Frankfurter, if — if it were solely a question of his not having time or something, I believe in the district, he could’ve raised that question by appeal.

    His petition for habeas —

    Felix Frankfurter:

    I’m not talking about how to correct an error.

    I guess you say what the judge did here all points (Inaudible)

    Burke Marshall:

    Well, if we pass that point and pass the peculiarity of the question of time and whether or not he had time to prepare or to meet the government’s case here, I think we are straight up against the provisions in the constitutionality of the District of Columbia Statute of Section 301.

    That statute does provide for mandatory commitment.

    It does apply to anyone who has been acquitted by reason of insanity on any charge for any offense in the District of Columbia, whether by indictment or by information or in the juvenile court.

    The basic con —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    On its face, Mr. Justice Frankfurter, irrespective of the timeline as well.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well, Mr. Justice Frankfurter, the District of Columbia statute is really in two parts, one part dealing with the commitment procedures and the other part with release procedures.

    How you get out once you’re in?

    The part dealing with commitment procedures in my judgment does not have any leeway on this point.

    It is a mandatory commitment statute and it applies to anyone acquitted by reason of insanity, and I don’t know of anything in either the language of the statute or in the history of the statute that the court could rely on to say that it didn’t apply to everyone acquitted by reason of insanity.

    Felix Frankfurter:

    (Inaudible)

    Earl Warren:

    Mr. Marshall, is it making any difference at all under the presentation of the Court of Appeals had put on this statute whether the trial is two months or two years after the commission of the offense because, as I understood you to say a little earlier, the finding of the court is not (Inaudible) at the time of trial.

    The finding is what it was at the time of the commission of the offense.

    So, no matter how long after the offense, the evidence can still be insane or the finding insane as to what his mental condition was at that moment.

    Earl Warren:

    Is that right?

    Burke Marshall:

    That’s correct, Mr. Chief Justice.

    Felix Frankfurter:

    hat does not meet my point that if a finding of his mental condition at the time of the offense is a week before the time of the trial, the statute may indulge the presumption of continuity which it might not (Inaudible) here.

    Burke Marshall:

    Mr. Justice Frankfurter, the experience under this statute, as far as I know, there is no case where it has proved to be the fact that someone committed under the statute was in fact not insane at the time that he was committed.

    That is, the experience under the statute, I think, has been such that there has never been an instance where the timeline was so great.

    And you can see, in a way, why that would be so because under normal situations, unless the defendant can’t be found, he would be brought in and if he’s incompetent to stand trial at that time, he’d be submitted to the hospital for treatment.

    The treatment of these diseases takes an appreciable amount of time.

    It isn’t like getting over something with a defined beginning and defined end like measles.

    The time that it takes normally in order to make improvement requires hospitalization and treatment.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well, Mr. Justice Frankfurter, I don’t think there would be that long a delay unless the defendant was, in the meantime, in a hospital receiving treatment until he became mentally competent to stand trial.

    William J. Brennan, Jr.:

    As a matter of fact here, Mr. Marshall, but for the fortuitous circumstance that within two months, the psychiatrist would say he had improved after he had been confined on a conclusion that he was not competent to stand on trial, he might still have been there and not been brought to trial.

    As of today, nobody knows and that period might have been much longer than two months that have been factored in.

    Burke Marshall:

    That’s correct — that is correct —

    William J. Brennan, Jr.:

    And that (Voice Overlap)

    Burke Marshall:

    — Mr. Justice Brennan, but, under all that time, he would be under the treatment of doctors and the doctors during all that time would be faced with a statutory responsibility of informing the judge — informing the court as soon as he became competent to stand trial.

    The hospital is, of course, very crowded and the staff of the hospital is conscious of this statutory duty.

    He isn’t — the way that it is set up, I think that it is not — it’s at least unlikely that he would sit there because of inertia on the part of the hospital staff.

    William J. Brennan, Jr.:

    No, I’m not suggesting that but I assume there must be some instances of commitment that this one was made initially because they felt he was not competent to stand trial where a long period of treatment, hospitalization is required before there is a certification.

    Well, now, he is competent to stand trial.

    Burke Marshall:

    But my point, Mr. Justice Brennan, is that I don’t think that would affect Mr. Justice Frankfurter’s concern because if the delay was by that reason, it would all the time be delay while he was in a hospital and while doctors were watching him to see if he became competent to stand trial, so that the delay between the time of that finding and the trial itself would be very short.

    Felix Frankfurter:

    (Inaudible) the question might not be raised.

    Burke Marshall:

    Well, it is possible, Mr. Justice Frankfurter, that in some case in the district for some reason or another, that if he left the jurisdiction that there might be a substantial period of time between the commission of the crime and the trial on that charge and —

    Felix Frankfurter:

    When was the statute first passed?

    Burke Marshall:

    It was passed in 1955.

    The Durham rule was — was handed down in the District of Columbia in 1954 by the Court of Appeals.

    Felix Frankfurter:

    Are you now defending the constitutionality of the (Inaudible) on the ground that there were numerous (Inaudible) where ever they were committed at the time that the defendant (Inaudible)

    Burke Marshall:

    I think that the experience under the statute, as I know of, Mr. Justice Frankfurter, was relevant to your question which was —

    Felix Frankfurter:

    (Inaudible) in the administration here —

    Burke Marshall:

    I think that —

    Felix Frankfurter:

    (Inaudible) it was happening here, giving through judgment by declaration or judgment by experience.

    Burke Marshall:

    Well, I think judgment by experience in this instance, Mr. Justice Frankfurter, is relevant because the challenge to the statute — this part of the statute is upon the basis that it was irrational, irrational for Congress to make the judgment.

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    And, I would — I do not have them firmly in my head but I think there must have been —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    There are a large number — there are a large number of them.

    I would — there are over 200 or 300, Mr. Justice Frankfurter.

    They all appear in some hearings in Congress last year and I can get you that figure.

    I can get you a figure.

    Felix Frankfurter:

    (Inaudible) without seeing how the statute actually operates.

    Burke Marshall:

    On the operation of the statute and the general context of the statute, the context in which it is — was passed, I think that it is also relevant and that the Court should give some weight to the fact that it is in opposite or a result, a consequence, as a matter of legislative history of the Durham rule.

    The Durham rule, the direction of the Durham rule, the movement of the Durham rule was in treating mentally ill as being mentally ill and not as being insane.

    I think that that movement is generally accepted as having been a good one.

    It is a result, one consequence of that, necessarily, is that more people are acquitted by a reason of insanity under the District of Columbia than they would be under the tests of insanity or criminal responsibility that are applied in other jurisdictions, and another consequence of it is that the consequence of having been tried that — the consequence of this rule of criminal administration is a treatment rather than imprisonment and it’s a corollary of that or another consequence of the Durham rule and the statute that followed the Durham rule that the length of time which someone might spend in confinement is not necessarily related to the — to the magnitude of the offense with which he is charged.

    As I say, that seems to me to be a necessary and inevitable consequence of a rule in the District of Columbia which permits the advance in the administration of criminal justice by the use of psychiatrists, by the recognition that insanity and responsibility is not necessarily related to specific or certain mental diseases.

    And, I think that it is the frustration with this fact, the frustration with the fact that the treatment for someone who is mentally ill is not necessarily related at all to the length of imprisonment which he would suffer if he had been found guilty.

    It’s that frustration which gives rise to this case.

    Earl Warren:

    Mr. Marshall, if we were — if were to hold in this case that the statute itself would require (Inaudible) by insanity was constituted but that the rights of this particular defendant had been violated (Inaudible)

    Burke Marshall:

    I think, Mr. Chief Justice, the answer to that is that in no practical way would it be injured.

    I think it would injured in that — I think in no practical way that would be injured, I think that it would be sort of unrelated to the contentions advanced by the petitioner in this case.

    Earl Warren:

    Yes but you’re representing this man (Inaudible)

    Burke Marshall:

    Well, Mr. Chief Justice, I agree with you about that but I just, as I say, don’t think that it’s raised in this case.

    He — the defendant, if he had asked for a continuance, if he had asked for more time, if he had — if he now even claimed that he could’ve proved sanity at that time, which is not a claim that he makes on the record, if any of those things were true, I don’t think this case would’ve come to the Supreme Court of the United States.

    I think that that kind of error and I think it might have been an abuse of the discretion of the trial judge, not to grant a continuance, but the trial judge was not asked for a continuance.

    Earl Warren:

    (Inaudible)

    John M. Harlan II:

    Could I put a question to you, this concession which perhaps has been answered before the white light or red light goes on.

    Bearing in mind that our duty is to construe this statute if we can avoid constitutional question on the basis of our constitutional evidence, I wish you would explain to me what the insurmountable obstacles are to construing the statute as not applied or as applying only in the case where a plea of insanity has been imposed?

    Burke Marshall:

    A plea of insanity has been imposed?

    John M. Harlan II:

    Has been interposed by the defendant?

    Burke Marshall:

    Well, the statute, Mr. Justice Harlan, reads as follows.

    Burke Marshall:

    It says when any person tried upon an indictment or information —

    John M. Harlan II:

    Literally, I agree with you.

    You don’t have to take time on that, but are we excluded from reading the statute in a way to avoid constitutional questions by — is this statute so inconsistent, so impermissible, so inconsistent that instruction is impermissible?

    Burke Marshall:

    I think, Mr. Justice Harlan, the best I can say — the best way I can answer that is that — is that it would — it has no basis at all in the statutory language.

    The statutory language talks about people who are acquitted by reason of insanity.

    It does not talk about it in terms of whether or not there was a defense imposed and the law in the District of Columbia and the law in the federal system at that time was that the issue of insanity could be raised by evidence introduced by either side.

    John M. Harlan II:

    In other words, if there was a gap construing the statute, as I suggest that it might be construed, if there was a gap in fulfilling — left a gap in fulfilling the congressional purpose, I would say that was impermissible.

    But, as I understand the type of operation of this, if the statute was construed as I’m now hypothesizing and the man were sent to Saint Elizabeths and the superintendent looked him over and said “well, this no — man is no longer insane.

    He has recovered.”

    It would be his duty to release him.

    Now, if the judge, faced with that kind of a limited construction of the statute, said “well, alright, there’s been no plea of insanity here but I’ve looked at this man and he seems to be very insane and I will send him to prison, as I have to do, and tip off the warden.

    He better take a look at him” and, the warden sends him over to Saint Elizabeths for examination and Saint Elizabeths said “we believe that the man is not insane at the moment” and out he goes.

    What’s the difference between the two things as a practical result?

    What gap is left in the administration of the statute?

    Burke Marshall:

    Well, Mr. Justice Harlan, the principal gap that would be left in the procedure that you suggested is that the time for his treatment in the hospital would necessarily be related to the punishment, the length of punishment for the offense that he’s been cre — he committed.

    The — among other things —

    John M. Harlan II:

    I’m hypothesizing in both instances that the man — the only justification that under either procedure the war — the — Saint Elizabeths who have obtained with or above the sentence would be if he is found then un-recovered from his insanity both instances if they found him sane at the time, even though insane at the time of his — at the time of the commission of the offense or would it be duty to release?

    Burke Marshall:

    Well, of course, that’s — Mr. Justice Harlan, if he found him ins– found him sane at the time that the sentence would’ve expired, it’s his duty to release him under this statute.

    John M. Harlan II:

    I’m talking before the sentence expired.

    Burke Marshall:

    Well, it is a duty — it is the duty of the superintendent of the hospital to certify him as ready for release whether — if he has a 99-year sentence and he recovers in 9 months, he gets released under the statute.

    John M. Harlan II:

    Exactly.

    Burke Marshall:

    And, I’m afraid I haven’t grasped your question.

    John M. Harlan II:

    Where is this gap?

    Felix Frankfurter:

    Mr. Marshall, I do not —

    Burke Marshall:

    The gap occurs, Mr. Justice Harlan, as to prisoners who would — whose term had not expired.

    If — if the court handed down a rule of law which would forbid a — yes, sir?

    Felix Frankfurter:

    I’d like to (Inaudible)

    Burke Marshall:

    Well —

    Felix Frankfurter:

    And, thereby, (Inaudible)

    Burke Marshall:

    Mr. Justice Frankfurter, I don’t know what kind of a choice that would leave the trial judge in this circumstance.

    Burke Marshall:

    Now, if the trial judge accepted the plea of guilty, he could do what Mr. Justice Harlan suggests, and that is that he could sentence him and then suggest to the warden that the man ought to be looked at and, perhaps, sent to Saint Elizabeths.

    But, if he did that, he did that, he would be finding a man whom the government and the court and defense counsel, all knew to be innocent and he would be imposing a finding of guilty and imposing a sentence, a con — a sentence of conviction under those circumstances.

    On the other hand, if he proceeded to do what I would think would be his duty as a judge and under conscience, which would be to take in the evidence of insanity, then — and have a trial and not accept the plea of guilty, then the man would — the defendant would be acquitted on the grounds of insanity and there would be no commitment statute in the District of Columbia that would be applicable to the case, which I think would defeat the intent of Congress.

    Felix Frankfurter:

    You worry about this situation.

    That is what I’m worried about.

    I’m worried about the statute being unconstitutional against a man (Inaudible) and you would think —

    Burke Marshall:

    Well —

    Felix Frankfurter:

    (Inaudible)

    Burke Marshall:

    Well, I think a very few of them, Mr. Justice Frankfurter, but there was an implication in your question which I would like to remove and that is that you said I believe that if necessary to change — to save the constitutionality of the statute.

    Of course, I do not think such a construction is necessary to change — save the constitutionality of the statute.

    I think that the statute is a rational act of Congress in equating treatment of the mentally ill —

    Felix Frankfurter:

    (Inaudible)

    Earl Warren:

    (Inaudible)

    Burke Marshall:

    That’s correct.

    Earl Warren:

    Even if these two affidavits before him as to the competency of the defendant, the judge would’ve said, could he not, “I’m going to determine whether in my own judgment this man is competent to stand trial” could be all the difference?

    Burke Marshall:

    Well, Mr. Chief Justice, I suppose that he could have, as a matter of procedure and power, but he would’ve been doing something for which there would be no justification in fact.

    I do not think anyone contends, starting with Mr. Lynch and on to the government or the court that Lynch was not at that time competent to stand trial.

    He was competent to stand trial in that he understood the nature of the charges against him and he was competent to talk to his lawyer and tell his lawyer what had happened.

    The — that is very different from not — from being responsible in the criminal law sense.

    Earl Warren:

    Mr. Arens.

    Richard Arens:

    Mr. Chief Justice and may it please the Court.

    In summarizing what I’ve already said, may I state the question emerging in this case, is not essentially whether an insanity defense may be forced upon a recalcitrant and competent defendant with a view of spearing him life or loss of liberty.

    The question is whether an insanity defense may be forced upon a recalcitrant and competent defendant with the view to depriving him of his liberty without adequate safeguards and I respectfully submit that the safeguards emerging from the situation confronting this Court were not adequate.

    The government concedes that there was no formal notice.

    The opportunity to defend effectively, in terms of psychiatric assistance was nonexistent and the standard of proof was clearly and explicitly that of reasonable doubt, and reasonable doubt alone.

    There was no finding that petitioner was insane as of the time he was committed and, when committed, he was committed under circumstances that made his release subject to an onerous oppressive and, I submit, unconstitutional standard, a matter which is not all together relevant in considering his present plight.

    The hypothetical situation applied by the Chief Justice strikes me as precisely the situation which would become common place if the Lynch rule were to be maintained.

    We’ve suggested that the application of the Lynch doctrine would enable the prosecution to assert by no means implosively that almost any traffic violation was attributable to the tension generated by a mild and perhaps a very widespread mental disorder.

    Such assertion backed by evidence presenting no more than a reasonable doubt concerning the mental health of a defendant as of the time of that violation would result in the commitment of that defendant to Saint Elizabeths Hospital for an indefinite period of time and one might add without any assurance of adequate treatment because the Court of Appeals in Auburn against Overholser declared the question of the adequacy of psychiatric treatment at Saint Elizabeths to be a matter of legislative and not a judicial concern.

    I conclude, with the observation of a legal publicist, undoubtedly known to this Court, Aristotle observed long ago that punishment is a sort of medicine.

    Richard Arens:

    We have considerable cause today to observe that medicine can be a sort of punishment sans due process of law.

    The use of medicine as punishment now calls for the correcting hand of this Court.