471 F.2d 969 (D.C. Cir. 1972)
On the evening of September 8, 1967, Archie W. Brawner, Jr. spent the afternoon and evening drinking wine with his uncle Aaron Ross before attending a party at the home of three acquaintances in the District of Columbia.1 During the party several fights broke out, and at approximately 10:30 p.m. Brawner was struck or pushed to the ground, injuring his jaw.2 After the fight Brawner left the party, appeared disoriented to witnesses, pounded on a mailbox, and stated that someone was going to die that night.3 Roughly thirty minutes later he returned to the building carrying a gun, fired one shot into the ground, entered the building, and fired five shots through the closed metal door of the apartment where the party continued. Two of the shots struck and killed Billy Ford.
Brawner was arrested a few minutes later several blocks away. The arresting officer observed that Brawner appeared normal, spoke clearly, and showed no signs of intoxication.4 After the government presented its non-expert evidence at trial, the district court directed a verdict of acquittal on the charge of first-degree murder for lack of sufficient evidence of deliberation, leaving the jury to consider second-degree murder and carrying a dangerous weapon.5
At trial four expert witnesses from St. Elizabeths Hospital testified concerning Brawner's mental condition. All agreed that Brawner suffered from an abnormality of psychiatric or neurological nature variously described as epileptic personality disorder, psychologic brain syndrome associated with a convulsive disorder, personality disorder associated with epilepsy, or explosive personality.6 The experts further agreed that epilepsy is not itself a mental disease or defect but is often associated with one, that Brawner had both a mental and neurological disease, and that alcohol or a blow to the head would exacerbate the condition.7 The government experts concluded that Brawner's conduct on the night of the offense was not consistent with an epileptic seizure or explosive reaction and was not causally related to his mental condition. The defense experts reached the opposite conclusion and testified to a causal relationship between the mental abnormality and the shooting.
Brawner was convicted by the jury of second-degree murder and carrying a dangerous weapon.8 Following argument before a division of the court, the United States Court of Appeals for the District of Columbia Circuit sua sponte ordered rehearing en banc to reconsider the appropriate standard for the insanity defense.9 The court invited supplemental briefs, appointed amicus curiae, and solicited briefs from numerous organizations on questions concerning the insanity defense, productivity testimony, burden of proof, and related doctrines.
Whether the facts of the case establish the procedural and evidentiary context for reconsidering the insanity defense standard?10
The established facts must be recounted chronologically in developed paragraphs to frame the legal issues, including the events of September 8, 1967, the trial proceedings, expert testimony, conviction, and the sua sponte en banc rehearing.11
Yes. Upon arrival at the party after drinking wine with his uncle, Brawner was injured in a fight at approximately 10:30 p.m., after which he appeared disoriented, pounded on a mailbox, and declared that someone would die that night. Subsequently, roughly thirty minutes later, Brawner returned with a gun, fired shots through the closed apartment door, and killed Billy Ford.12 After trial the district court directed acquittal on first-degree murder for insufficient evidence of deliberation.13
At trial four experts from St. Elizabeths Hospital agreed that Brawner suffered from an abnormality variously labeled epileptic personality disorder or explosive personality, that epilepsy is often associated with mental disease, and that alcohol or head trauma would exacerbate the condition, yet they divided sharply on whether the mental condition was causally related to the shooting.14 Brawner was convicted of second-degree murder and carrying a dangerous weapon.15 Following argument before a division, the court of appeals sua sponte ordered rehearing en banc to reconsider the insanity defense standard, invited supplemental briefs, appointed amicus curiae, and solicited views from numerous organizations.16
The facts establish the procedural and evidentiary context for reconsidering the insanity defense standard.
Whether the Durham rule for the insanity defense should be abandoned?17
The Durham rule, which excused an unlawful act if it was the product of mental disease or defect, is abandoned because it failed to provide the jury with sufficient guidance and invited experts to testify in conclusory terms.18
Yes. The established facts demonstrate that under the Durham rule the four experts from St. Elizabeths Hospital testified in conclusory terms about whether Brawner's mental abnormality was causally related to the shooting, with government experts stating there was no causal relationship and defense experts stating there was, thereby confirming the rule's failure to guide the jury and its tendency to permit experts to usurp the jury's function.19
The Durham rule is abandoned.20
Related opinions on this issue
Chief Judge Bazelon concurs in abandoning Durham but emphasizes that the change is largely one of form rather than substance, noting that Durham's objectives remain unfulfilled because practical obstacles such as inadequate expert assistance for indigents continue to impede meaningful adjudication of the responsibility issue.
Whether the American Law Institute test should be adopted as the standard for criminal responsibility?21
The ALI test is adopted because it better focuses on the cognitive and volitional aspects of the defendant's mental state, provides the jury with a workable standard, and permits experts to testify without usurping the jury's function.22
Yes. The established facts show that the ALI test, requiring lack of substantial capacity to appreciate the wrongfulness of conduct or to conform conduct to the law as a result of mental disease or defect, will allow the jury to evaluate the conflicting expert testimony on Brawner's explosive personality disorder and its relation to the shooting without being dominated by conclusory productivity opinions.23
The American Law Institute test is adopted as the standard for criminal responsibility.24
Related opinions on this issue
Judge Leventhal joins the adoption of the ALI test and adds that jury instructions must clarify that mental disease or defect are legal concepts and that even a defendant with mental disease remains responsible if he retains substantial capacity to appreciate wrongfulness or conform conduct to law.25
Whether the McDonald definition of mental disease or defect should be retained when applying the ALI test?26
The McDonald definition of mental disease or defect as any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls is retained and engrafted onto the ALI test to supply the missing definition and guard against undue expert dominance.27
Yes. The established facts illustrate that the four experts agreed Brawner had an abnormal condition variously described as epileptic personality disorder or explosive personality that substantially affected his mental processes and impaired behavior controls, demonstrating that the McDonald definition supplies the necessary legal content for applying the ALI test to the evidence.28
The McDonald definition is retained when applying the ALI test.29
Whether the burden of proof on the insanity issue should be shifted to the defendant?30
The burden of proof on the insanity issue remains on the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the offense; the suggestion to shift the burden to the defendant is rejected.31
Yes. The established facts contain no indication that the prosecution failed to meet its burden under the existing allocation, and the court explicitly rejects any shift because the prosecution must prove every element, including sanity, beyond a reasonable doubt.32
The burden of proof on the insanity issue is not shifted to the defendant.33
Related opinions on this issue
Judge Burger dissents from the overall approach and would retain the Durham rule or alternatively adopt a rule that more clearly places the burden on the defendant to prove insanity, arguing that the ALI test will not solve the problems of expert battles and jury confusion.34
Whether expert testimony concerning abnormal mental condition should be admissible on the issue of specific mental elements required for certain crimes or degrees of crime?35
Expert testimony of abnormal mental condition is admissible when it bears on the existence of a specific mental element necessary for a crime or degree of crime, such as premeditation in first-degree murder, provided the testimony is grounded in sufficient scientific support and would aid the jury.36
Yes. The established facts show that the district court directed acquittal on first-degree murder for lack of sufficient evidence of deliberation after the government's non-expert evidence, and the new doctrine permits expert testimony on Brawner's abnormal mental condition to be considered on the issue of premeditation or other specific intent elements even if it does not establish a complete insanity defense.37
Expert testimony concerning abnormal mental condition is admissible on the issue of specific mental elements required for certain crimes or degrees of crime.38
Whether the introduction of past criminal and antisocial conduct should be admissible as evidence of mental disease without accompanying expert testimony?39
The introduction or proffer of past criminal and antisocial actions is not admissible as evidence of mental disease unless accompanied by expert testimony, supported by a showing of the concordance of a responsible segment of professional opinion, that the particular characteristics of these actions constitute convincing evidence of an underlying mental disease.40
Yes. The established facts contain no proffer of past criminal conduct by Brawner, and the rule ensures that any such evidence would require supporting expert testimony to prevent misuse while still allowing the broad presentation of relevant evidence under the ALI test.41
Past criminal and antisocial conduct is not admissible as evidence of mental disease without accompanying expert testimony.42
Whether the case should be remanded to the district court to determine whether a new trial is appropriate under the new standard?43
The case is remanded to the district court to determine whether a new trial is appropriate in the interest of justice because the trial judge has a superior vantage point for assessing whether there is a substantial possibility that the jury, if instructed under the new rule, would have found the defendant not guilty by reason of insanity.44
Yes. The established facts show that Brawner was convicted under the Durham standard and that the benefit of the new ALI test cannot be wholly withheld from the defendant in whose case it was established, yet the appellate court lacks the trial judge's vantage point to decide whether the jury might have acquitted under the new standard.45
The case is remanded to the district court to determine whether a new trial is appropriate under the new standard.46