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verdict on the question of mental capacity. I should say to you that this was very thoroughly discussed in conference. One member of the other body raised objection to that provision. We adjourned our hearings in order to give that member of the Senate committee an opportunity to talk to some of the judges whom he knew, and at the next meeting this provision was left in for a very good reason.

Approximately every jurisdiction in this country has held that it is an unfair comment to a jury as to the consequences of its verdict, that the jury has a factfinding responsibility only upon evidence presented to it and should not be properly or cannot properly be concerned with the consequences of its verdict.

My own position is that this particular provision of the bill was retained because if it were not kept in, it would be grossly unfair to an accused. If a jury were told that if they found the accused not guilty because of mental incapacity to commit a crime, that then he would be put in a mental institution and maybe released the next day at the whím of some doctor; the chances are that a jury would be less likely to return a fair verdict or acquittal if they thought this person was a borderline case, if such person would walk out of the courtroom free. I think that this concern about the question of the accused got in reverse. We were really concerned about the accused when we put that provision in the bill, as was the American Law Institute so concerned.

Mr. Vinson. This is the provision that prohibits the jury being informed of the consequences of a not-guilty verdict.

Mr. WHITENER. That is right. My State has held innumerable times that a prosecutor telling the jury that if they convict a man of murder in the first degree and recommend life imprisonment, that he is automatically entitled to consideration for parole after 10 years, that that is a violation of the right of the defendant, because it would be such as to cause the jury probably to return a death penalty rather than a life imprisonment sentence if they knew that the law provided that the accused could be released in 10 years.

So, this is the theory that we had about it.
Do you

have

any comment on that? Mr. Vinson. Well, you said that a jury should not be informed that if they brought in a not-guilty verdict, that the man might be committed to a mental institution and released tomorrow. I would certainly agree with you with respect to that.

However, I see no basic problem in informing juries that if they bring in a not-guilty-by-reason-of-insanity verdict, that he will be committed to an institution. I believe the words of the District of Columbia Code, are that he be released when there is a finding that he is no longer dangerous to the community.

Mr. WHITENER. We put this in our omnibus crime bill for a reason. But now let me get right down to an elementary proposition here: What would be the proper role of a jury where a defendant raised the defense of mental incapacity?

Mr. Vinson. To determine whether, of course, he was incapacitated. Mr. WHITENER. And that is the end of their responsibility, is it not? Mr. VINSON. Yes, sir.

Mr. WHITENER. The procedural steps of what might ensue under the law is not proper for the jury, is it?

Mr. Vinson. What ensues is not necessarily a jury determination, no, but to have knowledge of what would happen in this case or that case is something else.

Mr. WHITENER. In my State, and I understand in most States, neither the court nor the counsel have the right to comment on the punishment which the statute prescribes for a certain criminal offense except in those States where the jury is given the authority to fix the punishment. The courts pretty generally have held that it is a transgression of the rights of the accused for the jury to have that information, because they are limited to the one issue: Is this defendant guilty or not guilty? Anything beyond that is prejudicial to the defendant.

I just do not understand why that one position would evoke any criticism as to our omnibus crime bill.

Let us go off the record.
(Discussion was had outside the record.)
Mr. WHITENER. Back on the record.

Mr. Vinson, do you not think that it is an aid to the jury in making a fair determination? For instance, suppose you have a particularly aggravated crime and suppose that you have a substantial question raised as to the question of insanity. The jury consists of 12 human beings; it is to society's benefit to get this fellow off the streets, whether he is insane or whether he is not insane, and presumably the evidence is overwhelming as to his guilt. Do you not think that there is a substantial danger that one who is by any standards insane could be sentenced by that jury to a correctional institution, wherever it might be, if they were not aware that there was a facility to which a defendant who is found not guilty by reason of insanity would be sent, there to be held in accordance with the crime, which is the restatement of the District of Columbia--it is the function of the jury to determine whether an individual ought to be on the street or not. I think it is a function of the jury to determine whether or not an accused has committed a crime, and then it is the function of the court to determine how long he shall be off the streets.

Mr. VINSON. Technically, that is correct.

Mr. WHITENER. You take this position, yet you say that you oppose mandatory punishments.

Mr. Vinson. Technically, you are 100 percent right. You and I, sitting here, know that that is fact which juries take into consideration.

Mr. WHITENER. But they should not. The court instructs them that they should not. The court tells the jury: “You are not to return a verdict based upon prejudice or sympathy or any other basis other than the evidence in the case under the law of the jurisdiction."

I think that, with all due respect to the position that others take, when they take their position that this language should not have been in the bill, they are not taking into account the rights of the accused. I do not think that you ought to have a runaway jury going outside of its proper role of determining guilt or innocence and considering these extraneous matters like punishment, and the like. When you took the position that you did, I thought that it was rather unusual in view of the fact that there seems to be some dedicated to the idea of not having mandatory punishments, not having other protections which would keep the criminals off the streets. I, for one, feel that a mentally incompetent person should not be put in the penitentiary because the jury thinks that person ought to be off the streets.

You mentioned the alcoholics. You state that they should not be taken into custody by the police officers unless they are both drunk and disorderly. I think that when you take that position, you overlook one of the equally important reasons for taking a drunk into custody; that is, for his own protection he should be taken into custody. And it is not only his own protection but for the protection of the public. I would dislike to see a situation develop here in Washington or anywhere else where drunks could wobble and stagger down the streets and stagger into an automobile of some law-abiding citizen and have that citizen have to spend hundreds of dollars either defending a criminal action or a civil action because some drunk staggered into the side or the front of his automobile. So, it seems seems to me that we must get the drunks off the streets.

Mr. Vinson. I quite agree with the chairman. The question possibly posed by this bill, Congressman Hagan's bill and our bill, is how you get them off the streets, who gets them off the streets.

For instance, under, I believe, either bill-certainly under ourspublic health officials could take them off the streets. The thing that we were trying to avoid was the average 30 minutes time spent by a policeman in booking and the like.

Mr. WHITENER. If it saves his life, if it saves some other person from being involved in some unpleasant mess and an injury to him, or if it saves a businessman from losing his business because a drink is hanging around his place, slobbering or weaving around, it does seem to me that it is worth while.

Mr. VINSON. I agree wholeheartedly. The only question that we raised is whether the criminal process should be the instrument for doing this or whether a civil process, such as the detoxification centers, and the like.

Mr. WHITENER. But we get to the point that an officer would have no right to take that man into custody unless he is arresting him.

Mr. Vinson. Well, it might be an arrest in the sense of Mirandacertainly, it would be restraint and detention.

Mr. WHITENER. My point is that if we take public drunkenness off the books as a misdemeanor and insert in lieu thereof that a person must be both drunk and disorderly, then we have fixed it so the officer would have no right whatever to take a drunk off the streets for the drunk's own protection.

Mr. VINSON. No, sir, I think that he would be authorized to restrain for this purpose. Actually, you are aware of the North Carolina case, in the Fourth Circuit, which was decided some time ago, and the Easter case here--it did not say that an officer could not arrest for this crime of public intoxication. It merely said that he could apply criminal sanctions.

Mr. WHITENER. That is about what we call our habitual drunkenness law, where the punishment is graduated, based upon the number of times of his being arrested for this public drunkenness. As I remember, they said that where he was an habitual drunkard, this is evidence of an illness rather than a criminal act. I do not believe that the Fourth Circuit Court dealt with the proposition of a one-time drunk who was arrested.

Mr. Vinson. That may possibly be true.

Mr. WHITENER. You know that a lot of good people get drunk once in their lives, maybe more, and that a good person who gets drunk, for his own protection, ought at that time be taken off the streets.

Mr. VINSON. I agree I agree.

Mr. WHITENER. We used to have a judge that would tell the drunkards: “This officer arrested you here in December, in the December weather, and you might have frozen to death if he had not.” And he said further, "If he had not, if you had not frozen to death, you might have seen all sorts of weird things-you might have seen snakes.'

There is a lot of truth to that. All of us have had the experience, I am sure, of folks near and dear to us who have become victims of alcohol. We all know that some good folks and good friends of ours, maybe members of our kin, who would have been done a favor if at sometime they had been locked up, not permitted to walk in front of an automobile, but brought into some place for help, rather than going into some place of business and gotten thrown out on their ear.

Here in Washington just a few weeks ago, I was in a very high-class restaurant, and I saw this drunk wobbling outside of the window, and a police officer across the street. I commented to the manager about it. He said, “What can you do? He will catch the devil for arresting him.” This fellow walked across 14th Street; we almost closed our eyes at that. We knew that he could be stricken down.

Mr. Vinson. I do not believe that either bill contemplates that the person who is intoxicated in public would be left to stand for himself. The police would have to, I am sure-they would be instructed the same as they are now—to do something. Right now they exercise their discretion. Some people are put in a cab and sent home; other people try to get somebody else to take care of them. Other people they do arrest. This would add another alternative, the civil process, where instead of arresting him and booking him and having to appear in court, this would be a case for the public health facility.

Mr. WHITENER. There are some other things that we could go into, but I know your time is important. You have given us the ideas of the Justice Department, and we certainly appreciate your coming up, Mr. Vinson. You know I am a long-time friend of yours and respect you highly. You and I have differences of opinion about the law and the proper application of it. I don't know that we have as many differences as the members of the Supreme Court have with each other in reaching conclusions.

Mr. Vinson. I have enjoyed being with you this morning.

Mr. WHITENER. We will make the letter of April 10, 1967, to the chairman of the committee from the Attorney General of the United States a part of the record at this point. (The letter referred to follows:)

DEPARTMENT OF JUSTICE,

April 10, 1967. Hon. John L. McMILLAN, Chairman, District of Columbia Committee, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on H.R. 826, a bill “Relating to crime and criminal procedure in the District of Columbia."

As indicated in your letter, H.R. 826 is identical to H.R. 5688 which was passed by the 89th Congress and vetoed by the President. It, therefore, suffers from the defects pointed out by the President in his statement of disapproval. Four of the six titles pose serious constitutional questions and in the words of the President will “provoke litigation,” and “add endless complications and confusion to an already complex situation.”

We share a common concern in seeking a legislative course of action which will aid police and prosecutors in coping with crime. In this light I comment on the specific provisions of H.R. 826 hoping to develop some common ground in our effort to secure civic order and social justice.

TITLE I

The problems of police questioning and admissibility of confessions at trial are extremely delicate ones. The Department of Justice has carefully studied interpretations of United States v. Mallory, 354 U.S. 449 (1957) and their effect on police investigation. We have a duty to see that these rules are adequate to the public need. We have concluded that many problems raised by Mallory may have been mooted by Miranda v. Arizona, 384 U.S. 436 (1966) and that there are risks at this time in superimposing legislative prescription on the practices which are developing under Miranda. The Metropolitan Police Department has modified its regulations since Miranda and gives opportunity for questioning under proper safeguards for the accused which permit full cognizance of the accused's right to presentment without unnecessary delay. A proper balance appears to be developing and a flexible situation should be maintained.

Title I does not offer either balance or flexibility. When read with Title III, it creates a situation in which an accused may be held for four hours without arrest and then questioned for six additional hours exclusive of interruptions. These provisions which may result in 10 hours of detention are in conflict with at least the Federal Rules of Criminal Procedure and greatly exceed the average amount of time which the police customarily use in interrogation in the District of Columbia. 1

1

TITLE II

The insanity defense was for many years a matter of considerable controversy in the District of Columbia, but the questions which were once raised no longer need legislative resolution. In the course of 13 years lawyers, courts and juries have learned to deal with the Durham rule ? and the Department of Justice finds nothing to compel change in that rule as modified by McDonald v. United States, 312 F. 2d 847 (D.C. Cir. 1962). In fact, this position which we developed in our correspondence with you on May 16, 1963, has now been generally supported by the District of Columbia Crime Commission. Their findings show that insanity qustions no longer loom large in either numbers or percentages.

We, of course, continue to urge enactment of provisions like subsection 201(c) (2) of H.R. 826, which requires notice of the insanity defense. A provision of this type is included in Title IX of the District of Columbia Crime Reduction Act, H.R. 7327.

TITLE III

The detention of suspects as proposed in Title III raises many questions. Although it appears that detention must be based on the type of probable cause required for an arrest, it specifies that the detention shall not be recorded as an arrest. It also appears to postpone presentment for at least four hours and it may allow four hours of interrogation without warnings and without opportunity for counsel. Although the relationships, if any, between Titles I and III are not clear, Title III appears to abrogate the rights to which an accused is entitled upon arrest.

As indicated in prior correspondence, the Department of Justice is of the view that these detentions are arrests. We oppose the creation of a nonarrest or investigative status. The law presently permits the police to make preliminary inquiry without an arrest, but a four hour period of detention for preliminary inquiry is of doubtful constitutionality and can only lead to futile litigation.

TITLE IV

I believe that we share a common interest in clarifying the law of the District of Columbia concerning material witnesses. It is our view, however, that witnesses should be accorded treatment at least as favorable as accused persons. Title IV does not do this. There is no provision for prompt presentment of a witness before a judicial officer and the witness is required to post pond or collateral without the

"A sampling of Metropolitan Police Department Form 163A for the month of December, 1966, indicated a median interrogation time of about 30 minutes.

? Durham v. United States. 214 F. 2d 862 (D.C. Cir. 1954).

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