Before: Bazelon, Chief Judge, Burger and Robinson, Circuit Judges, in Chambers.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and Burger and Robinson, Circuit Judges. Burger, Circuit Judge (concurring in vacating of all orders and dissenting as to all else).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
After the Court of General Sessions bound the petitioner over to the grand jury for action on a complaint charging him with the rape of an 11-year-old girl, Rudolph N. Thornton requested a preindictment mental examination under 24 D.C.Code § 301(a) (1967). The District Court ordered him committed for 60 days to Saint Elizabeths Hospital for an examination to determine not only his competency to stand trial but also whether Thornton was suffering from a mental illness at the time of the alleged offense. During that period he requested the district judge to order the hospital to permit his counsel and an independent psychiatrist to attend the staff conference that would be held before the hospital filed its report with the District Court. His motion was denied without explanation. Thornton then petitioned this Court for a writ of mandamus directing the district judge to issue such an order. Since it appeared to the Court "that further consideration of petitioner's mandamus petition will be required," we entered an interim order on July 9 directing that
Saint Elizabeths Hospital hold its staff conference concerning petitioner without awaiting the disposition of his petition, and that the Hospital record the conference on audio tape, such recording to be sealed and kept in the sole custody of the Hospital until further order of this Court.
Subsequent auxiliary orders were entered on July 9, September 20 and October 17 that are not here relevant. I
We begin with the realization that the peremptory common-law writs such as mandamus, prohibition and injunction are, when directed against judges, "extraordinary remedies * * reserved for really extraordinary causes." Ex parte Fahey, 332 U.S. 258, 260, 67 S. Ct. 1558, 1559, 91 L. Ed. 2041 (1947). The traditional function for mandamus has been "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185 (1943). The sharp restrictions thus placed upon mandamus arise partly because such writs "have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him." Ex parte Fahey, 332 U.S. at 260, 67 S. Ct. at 1559. More importantly, mandamus when sought during or before trial runs counter to the requirement of "finality [that] as a condition of review is an historic characteristic of federal appellate procedure," Cobbledick v. United States, 309 U.S. 323, 324, 60 S. Ct. 540, 541, 84 L. Ed. 783 (1940).
In its most recent encounter with mandamus in the context of a criminal trial, a unanimous Supreme Court vacated a writ issued by the Seventh Circuit Court of Appeals in an opinion richly larded with citations limiting the use of mandamus. Will v. United States, 389 U.S. 90, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967). In doing so the Court carefully narrowed the language it had employed to support a writ of mandamus in the civil case of Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964):
The Court there did note that the various questions concerning the construction of Rule 35 [of the Federal Rules of Civil Procedure] were new and substantial, but it rested the existence of mandamus jurisdiction squarely on the fact that there was real doubt whether the District Court had any power at all to order a defendant to submit to a physical examination.
389 U.S. at 104, 88 S. Ct. at 278 n. 14.
The Will decision may be distinguishable from the present proceeding in that the Government was there the party seeking a writ of mandamus. In that context the "general policy against piecemeal appeals" was strengthened by "an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense." Id. at 98, 88 S. Ct. at 275. Nevertheless, the flavor of the Chief Justice's opinion in Will must chill the enthusiasm of any intermediate court to issue such an extraordinary writ in any criminal case.
Which is not to say that a writ of mandamus may never issue in a criminal case. As the Supreme Court itself pointed out in Will, "It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution, Ex parte United States, 287 U.S. 241, 53 S. Ct. 129, 77 L. Ed. 283 (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129 (1916)." And this Court has issued such writs to compel trial judges to heed our interpretations of the Federal Rules of Criminal Procedure. See Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967); cf. Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 894, 900 (1964), cert. denied 380 U.S. 944, 85 S. Ct. 1029, 13 L. Ed. 2d 964 (1965); Jones v. Gasch, 131 U.S.App.D.C. 254, 265, 404 F.2d 1231, 1242 (1968).
The petitioner here does not claim that the District Court has exceeded its power, but rather that it has failed "to exercise its authority when it is its duty to do so." A party seeking mandamus has, in the oft-repeated phrase, "the burden of showing that its right to issuance of the writ is 'clear and indisputable.'" Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S. Ct. 145, 148, 98 L. Ed. 106 (1953). This test, while expressive of the general appellate reluctance to issue such writs, is not a uniformly useful guide. Where the trial court is entrusted with substantial discretion, error may reside along a continuum and the appellate court can meaningfully speak of a " clear showing of abuse." Jones v. Gasch, 131 U.S.App.D.C. 254, 265, 404 F.2d 1231, 1242 (1968) (emphasis added). In other circumstances, however, the duty of the trial judge to exercise his authority cannot be rendered unreviewable "under the guise of judicial discretion." Ex parte United States, 287 U.S. 241, 250, 53 S. Ct. 129, 132, 77 L. Ed. 283 (1932). In such situations the trial court has erred or it has not, and the clearness vel non of its error may be more a catchword than an actual litmus paper. Thus, when the petitioner invokes the power of the appellate court to protect an asserted constitutional right, the right exists and merits protection or it does not. An examination of the merits of his claim is required in order to decide which is the case. But once that exercise has been completed, the appellate court can hardly assess in retrospect whether the right was "clear and indisputable" all the time.
On the other hand, however, even a constitutional claim may depend upon a factual situation the implications of which can not readily be assessed without the benefit of a full trial record. In vacating the writ issued in Will, the Supreme Court relied ultimately upon "the failure of the Court of Appeals to attempt to supply any reasoned justification of its action." 389 U.S. at 104, 88 S. Ct. at 278. To determine the propriety of a writ of mandamus, therefore, we must scrutinize the petitioner's claims in light of the requirement set by the Supreme Court for "findings of fact by the issuing court and some statement of the court's legal reasoning." Id. at 107, 88 S. Ct. at 280. To the extent that the inchoate record in this case precludes the requisite findings of fact, mandamus is an inappropriate remedy. II
The petitioner argues that the logic of Wade v. United States, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), compels recognition of his right to counsel during his staff conference at Saint Elizabeths. The Supreme Court concluded there, in holding that the accused is entitled to a lawyer at his lineup, that "the plain wording of [the Sixth Amendment] . . . encompasses counsel's assistance whenever necessary to assure a meaningful ' defence,'" id. at 225, 87 S. Ct. at 1931, and went on to elaborate,
The accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. . . . In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.
Id. at 226-227, 87 S. Ct. at 1932 (footnote omitted).
At the same time, the Court pointed out in Wade that its sweeping words did not apply to all "preparatory steps" before trial. It specifically distinguished the taking of fingerprints or a blood sample on the grounds that "knowledge of the techniques and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." Id. at 227-228, 87 S. Ct. at 1932; see also Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
It might be argued that a psychiatric examination resembles such a scientific test more closely than a lineup. In addition, such examinations might also be distinguished from lineups on other grounds. Thus, the examination at Saint Elizabeths is not prosecutorial in nature; the doctors are required to be impartial in their evaluation of the accused. Because of this, there is neither the same reason to suspect the sort of abuses which troubled the Court in Wade, see 388 U.S. at 228-239, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, nor evidence that such abuses have occurred. Moreover, the majority of pretrial examinations are, like the one in this case, requested by the defense; unlike a lineup, there is no literal compulsion involved in these circumstances.
Unfortunately, the argument that mental examinations should be assimilated to scientific tests for Sixth Amendment purposes finds scant support in the experience of this jurisdiction in administering the insanity defense. Unlike the realm of fingerprints and blood samples, there is at best small agreement among experts concerning either the theory or technique appropriate to the diagnosis of mental illness. The "variable factors" are legion.
While it is true that the examining doctors at Saint Elizabeths are in theory impartial, moreover, as a practical matter some or all of those involved normally testify for the Government when the insanity defense is raised at trial. In this case counsel for the petitioner concede that the evidence is strong that he committed the acts charged, and aver that the principal issue at trial, assuming Thornton is found competent, will be that of responsibility. If this is true, there can be little doubt that his staff conference at Saint Elizabeths will represent an important confrontation with experts likely to testify for the Government. Moreover, just as the Supreme Court argued in Wade that a witness once having identified a suspect in a lineup is unlikely to retract the identification at trial, our experience suggests that the representatives of Saint Elizabeths rarely contradict in their testimony at trial an opinion they have voiced at the staff conference. Finally, the fact that many defendants wishing to assert the insanity defense are indigents who, as a practical matter, must rely upon an examination under 24 D.C.Code § 301(a) (1967) to raise their defense calls into question the confidence with which we can conclude that requests for such examinations are truly "voluntary." III
It is thus anything but clear what guidance we should draw from Wade in this context. The task is complicated by the further factor that we cannot assume that the staff conference can be treated as a single whole in defining the petitioner's right to the assistance of counsel. The amicus curiae brief submitted by the hospital in this case and the other information available to this Court *fn1 indicate that the typical staff conference includes both an interview with the individual committed for examination and deliberations by the attending staff members at which the individual is not present. The petitioner does not distinguish between these discreet parts of the conference in demanding that his counsel or an independent psychiatrist be allowed to attend, but the issues involved may be quite different.
Insofar as the petitioner's appearance before the staff conference is concerned, the Sixth Amendment claim can not be resolved without reference to the privilege against self-incrimination. The Supreme Court disposed of that issue in Wade on the ground that no "evidence of a testimonial or communicative nature" was extracted by a lineup. 388 U.S. at 221-223, 87 S. Ct. at 1929; see also Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). This argument can hardly do service in the context of a psychiatric examination, however, where the words of the accused are critically important in determining his mental condition. The few cases that have considered this issue have rejected the claim, but their reasoning has been less than satisfying. The Fourth Circuit, for example, reasoning from the premise that the Government in all federal cases bears the burden of proving the sanity of the accused beyond a reasonable doubt once the issue has been properly raised, Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895), has concluded that "if the government is required 'to shoulder the entire load,' it cannot be denied access to the only reliable means of ascertaining the truth concerning a defendant's sanity." United States v. Albright, 388 F.2d 719, 724 (4th Cir. 1968); see also Alexander v. United States, 380 F.2d 33, 39 (8th Cir. 1967); Pope v. United States, 372 F.2d 710, 720-721 (8th Cir. 1967), vacated on other grounds 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968). But this argument from necessity, however compelling, no longer justifies interrogation of the defendant without regard for the Fifth Amendment concerning his participation in the acts charged, where the Government of course must also "shoulder the entire load." Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). There may be sound reasons to distinguish between criminal acts and the accompanying mental state of the actor in measuring the scope of the self-incrimination privilege. But since the Government must prove both a "vicious act" and a "vicious will," we cannot simply assume a distinction between the two insofar as the privilege against self-incrimination is concerned. *fn2
It has also been suggested that the defendant waives whatever self-incrimination privilege he might otherwise enjoy when he requests the Government to provide a mental examination. *fn3 This argument has force insofar as a psychiatric examination is involved. But the petitioner here raises no question concerning the general procedures followed during the period of his temporary commitment to Saint Elizabeths Hospital for examination. His claim relates only to the staff conference to be held before the hospital submits its report to the District Court, which represents a much more formal confrontation. One report dealing with procedures followed at Saint Elizabeths, with which the amicus curiae brief of the hospital is in accord, states that
The staff conference is attended by the following personnel with the indicated frequency: senior staff psychiatrist (always); staff physicians (often); psychologist (always); social worker (often); psychiatric residents in training (often). *fn4
While a defendant may agree to speak freely to an examining doctor when he requests an examination, it is not immediately clear that he consents to a similar waiver of his privilege against self-incrimination before the staff conference. Sound medical practice may make the culminating staff conference inseparable from the underlying examinations and interviews by a single doctor. *fn5 But without a showing of such a compelling nexus between the two, we are reluctant to conclude that a waiver of the self-incrimination privilege regarding one must entail a corresponding waiver concerning the other. *fn6
To the extent that the self-incrimination issue arises when the individual is interviewed by the assembled battery of experts at his staff conference, the argument for a right to counsel during at least that part of the conference becomes more compelling. The standard justification for excluding counsel from the examining room is that because of "the intimate and personal nature of the examination . . ., the presence of a third party, in a legal and non-medical capacity, would severely impair the efficacy of the examination." United States v. Albright, 388 F.2d at 726. This reasoning also loses much of its force when a staff conference is involved. A lawyer is undeniably a "third party" to the doctor-patient relationship. As such, physicians may feel he is a fatally disruptive influence. But the staff conference is hardly as private and as individualized an encounter. The individual under examination faces a number of staff members, most of whom he has never seen before. The argument that a lawyer will prove a fatally disruptive influence at such a hearing is not compelling. *fn7 IV
A considerably different problem is posed by that part of the staff conference which the defendant does not attend. At that stage no issue of self-incrimination can arise, and there is no direct confrontation between the accused and potential Government witnesses. But these considerations do not sap the petitioner's claim that his counsel should be allowed to attend of all strength. The ability of defense counsel to cross-examine Government witnesses is crucially important not only on the issue of competency to stand trial but also when the insanity defense is raised at trial, as this Court has often pointed out. See Henderson v. United States, 123 U.S.App.D.C. 380, 385, 360 F.2d 514, 518-519 (1966) (concurring opinion); Rollerson v. United States, 119 U.S.App.D.C. 400, 406, 343 F.2d 269, 274-275 (1964); Jackson v. United States, 118 U.S.App.D.C. 341, 346, 336 F.2d 579, 584 (1964).
Saint Elizabeths Hospital has argued in its amicus curiae brief that the defense attorney can adequately cross-examine its staff members who may testify for the Government on the basis of the reports and files it will make available to counsel. However, the hospital has not displayed an enthusiasm to make such reports available to the defense. As recently as last year it refused to allow a defense psychiatrist access to the reports of its staff psychologist. See Washington v. United States, 129 U.S.App.D.C. 29, 32, 390 F.2d 444, 447 (1967). And whether the failure is due to the inability of defense attorneys to obtain or to interpret hospital files, our experience has made it all too clear that trial counsel are frequently unable to cross-examine government witnesses with sophistication. The problem, moreover, is hardly unique to this jurisdiction. *fn8 Ideally, there should be a specialized, experienced bar skilled in legal problems revolving about mental illness. There is not, however, and realistically there probably never will be such a legal corps. The lawyer appointed to represent an indigent defendant who may be incompetent to stand trial or who may have been mentally ill at the time of his alleged offense may have had little if any exposure to such problems. His skills as a lawyer may enable him to educate himself concerning the legal issues at stake. But even the most determined appointed attorney will have difficulty learning even a sufficient smattering of psychiatry to intelligently cross-examine Government witnesses, let alone prepare his defense. Much greater attention must undoubtedly be devoted to the discovery of devices whereby this lack of sophistication on the part of the bar can be combatted. An obvious starting point in the search is the hospital where the defendant receives a psychiatric examination. Certainly the lawyer struggling to inform himself not only about the mental condition of his client but also about the abstrusities of forensic psychiatry is entitled to expect the fullest cooperation from the hospital. If he does not receive any, he may fairly ask the court to exercise its authority to compel the cooperation of the hospital. V
The petitioner's claim that the logic of Wade v. United States should apply to his staff conference at Saint Elizabeths Hospital is therefore anything but frivolous. If his right to cross-examine the witnesses against him can be protected in no other way, his argument is of constitutional dimensions. Moreover, our responsibility for the administration of the insanity defense in the District of Columbia may require the exercise of our supervisory power. But the complexity of the issues involved and the uncertain factual matrix within which they must be resolved persuades us that a solution should not be attempted in the context of this petition for a writ of mandamus.
Even could we conclude the petitioner is constitutionally entitled to further protection of his rights at the staff conference, we cannot be certain that the presence of counsel is the appropriate remedy. It may be that alternative devices such as recording some or all parts of the staff conference may satisfy the Constitution at less cost to the effectiveness of the staff conference. The broad range of the alternatives to be considered can better be evaluated with the aid of a full factual record in a post-trial proceeding. Saint Elizabeths Hospital argues in the amicus curiae brief submitted at the Court's invitation that the hospital records and reports available to the defense already enable the attorney to adequately cross-examine the Government witnesses from the hospital. Thus, the hospital brief assures us that not only can the defense obtain copies of the medical staff conference report, but also the lawyer for the accused can examine all the material in the hospital records considered at the staff conference and discuss the case informally with all hospital personnel whose observations are included in the patient's file. The full record available to this Court after trial will enable us to better judge both the adequacy of these alternative sources of information and how, if such material as presently made available is not adequate, our responsibility to protect the constitutional rights of the accused and promote the efficient administration of justice can best be carried out.
In so concluding we well recognize the powerful argument in favor of resolving this petitioner's claims today. The alleged offense was committed in March 1968. The insanity defense revolves, of course, upon whether he was then mentally ill and if so whether the criminal acts if committed were the product of that illness. If he is convicted and succeeds in an eventual appeal challenging his examination at Saint Elizabeths Hospital, his victory may prove pyrrhic. At that future date a fresh examination directed toward his mental health last March will be sorely tardy. But the Supreme Court has often stated that hardship in individual cases is not an appropriate ground for mandamus. See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964). The policy against the issuance of such extraordinary writs as mandamus roots in broad considerations of judicial administration and must prevail against the seeming logic of prompt relief in the individual case.
The Orders of this Court previously issued in this case to avoid delay of the appellant's examination and trial during our consideration of the petition for a writ of mandamus are vacated insofar as they might require any future action by the participants, since we have concluded that mandamus does not offer an appropriate remedy. *fn9 Our disposition does not, of course, preclude the trial judge from reconsidering the original motion of the petitioner Rudolph N. Thornton in light of the illumination cast by this opinion. Since the issues discussed in this opinion may well play a part in any subsequent appeal if the petitioner is found competent to stand trial and convicted, we assume the hospital will not destroy the tape recordings it has made of the staff conference recently conducted.
United States Court of Appeals For the District of ...