The opinion of the court was delivered by: HOLTZOFF
On February 1, 1960, the petitioner, Stanley V. Robertson, threw a brick through a drugstore window, reached for some of the contents of the store and stole seven watches which he was able to grab through the opening. He was indicated on charges of housebreaking and larceny, and was found not guilty on the ground of insanity on April 12, 1961. As is required by the mandatory provisions of the local statute, he was forthwith committed to Saint Elizabeths Hospital for the mentally ill, D.C.Code, Section 24-301(c). He has filed a petition before this Court for a writ of habeas corpus, alleging that he has recovered his sanity and that the Superintendent of Saint Elizabeths Hospital, in refusing to certify and recommend him for release, is acting arbitrarily and capriciously. A writ was issued, a return filed and testimony has been taken at length.
In connection with the hearing on the writ, the Court caused the petitioner to be examined by the Legal Psychiatric Service of this Court and later referred the matter for an advisory opinion to the Commission on Mental Health of this Court. The reports of these various examinations, as well as the oral testimony of the psychiatrists who conducted them, are before the Court.
Before discussing the testimony it seems desirable to recapitulate the principles of law that must govern this Court in disposing of a case such as this. As heretofore stated, the District of Columbia Code, Section 24-301(c), provides that whenever a person charged with a criminal offense is acquitted solely on the ground that he was insane at the time of its commission, that fact should be set forth by the jury in their verdict; and subsection (d) prescribes that in such an event the Court should order such person to be confined in a hospital for the mentally ill. It is further provided in subsection (e) that if the Superintendent of the Hospital thereafter certifies that such person has recovered his sanity, that in the opinion of the Superintendent such person will not in the reasonable future be dangerous to himself or others, and that in the opinion of the Superintendent the person is entitled to his unconditional release, such certificate shall authorize the Court to order the unconditional release of the person; but that the Court may hold a hearing, on the basis of the certificate, at which evidence as to the mental condition of the person may be submitted. It is further provided that if the Court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or to others, the Court shall order such person unconditionally released. There are also provisions for a conditional release, under supervision, on the recommendation of the Superintendent of the Hospital. To summarize these provisions, a person who has been found not guilty of a criminal offense on the ground of insanity may not be released unless the Superintendent of the Hospital certifies that he has recovered his sanity and that in the Superintendent's opinion such person will not in the reasonable future be dangerous to himself or others and that the person is entitled to an unconditional release. However, the Superintendent, in determining whether to make or refuse to make such a certificate, does not have uncontrolled and unbridled discretion. There is no room in our governmental institutions for any official with an unbridled or uncontrolled discretion. The discretion of the Superintendent in failing to certify such an inmate for release is subject to judicial review if it is claimed to be arbitrary or capricious.
By arbitrary or capricious is not meant that the refusal must be in bad faith. These words are not used in their popular opprobrious significance. They are words of art and they mean merely that there must be a reasonable or rational basis for the action of the Superintendent.
The Superintendent may not act according to his personal notion or whim, no matter how well intentioned or bona fide his action may be. The Court of Appeals has held this to be the law, and the fact that Congress so intended is emphasized by subsection (g) of Section 24-301, which provides that nothing contained in the Act shall preclude the person confined from establishing his eligibility for release by a writ of habeas corpus. This perhaps is surplusage because the right to a writ of habeas corpus is a constitutional right, but it has a place in the statute for the purposes of emphasis.
The burden of proof is, however, on the petitioner. In order to sustain his burden of proof he must show by a preponderance of evidence, first, that he has recovered his sanity; second, that he will not in the reasonable future be dangerous to himself or others by reason of any mental disease or mental defect; and, finally, that the failure or refusal of the Superintendent of the Hospital to certify him for release is arbitrary or capricious, in the legal significance of that term.
This brings the Court to a consideration of the evidence in order to determine whether the petitioner has sustained this burden. The respondent's return to the order to show cause why a writ should not issue alleged, among other things, that the petitioner had been admitted to Saint Elizabeths Hospital on April 12, 1961, after having been found not guilty by reason of insanity on charges of housebreaking and larceny. It is further averred that the petitioner has not recovered from his abnormal mental condition, which was diagnosed to be 'anti-social reaction with psychotic reaction'. At common law the return to a writ of habeas corpus, insofar as it contained statements of facts, had to be traversed, and unless a traverse was filed the allegations of the return were considered as admitted. Traverses have fallen into disuse and they are no longer employed in this District. Consequently the allegations of fact contained in the return will be deemed denied, except those that the matters of record in the files of this Court. This procedure is parallel to that under the Federal Rules of Civil Procedure which no longer require a reply to an affirmative defense.
A junior psychiatrist on the staff of Saint Elizabeths Hospital was called as a witness. Probably to the surprise of Government counsel, and certainly to the surprise of the Court, he repudiated the diagnosis contained in the return and testified that in his opinion the petitioner was suffering from a chronic undifferentiated type of schizophrenia. No testimony whatever was offered to support the diagnosis contained in the return. That in itself, standing alone, is somewhat unreasonable. The psychiatrist who was apparently assigned by Saint Elizabeths Hospital to give testimony in this matter, in addition to giving his diagnosis, referred to the fact that the petitioner escaped from the Hospital in May 1962, was gone about seven months, and was apprehended and returned in January 1963. On being further interrogated, the psychiatrist testified that in recent months the petitioner had not displayed any overt symptoms of his mental disorder. To use the witness' words, 'He has gone into remission and is in partial remission now.' The witness further admitted that the petitioner's most recent flare-up was in 1962. Consequently, for almost a year or more the petitioner, according to the psychiatrist of Saint Elizabeths Hospital, had not displayed any symptoms of a mental disease. He has had no hallucinations or delusions, for example.
The witness, however, expressed the opinion, without giving any basis for it, that if the petitioner were released his illness would flare up again and he might become 'assaultive' -- meaning that the might assault other persons -- and that he might turn on his alleged persecutors. This is negatived by the actual fact that during the seven months when the petitioner was away from the Hospital due to an escape he seemed to get along, earn his own living in a modest way and not get into any serious trouble.
The Court realizes that these seems to be a view that an escape from a mental hospital is in itself a symptom of a mental disorder. The Court emphatically disagrees. The fact that a person escapes from confinement is not a sign of insanity. One might perhaps refer to the celebrated Egan case
in which the patient who had been committed to the hospital erroneously, escaped in order to hire an outside psychiatrist to prove his sanity.
The Court, as heretofore stated, referred the petitioner to the Legal Psychiatric Services of this Court for an impartial examination. Dr. Lanham of that Service filed a report and gave oral testimony. In his report he stated:
'It is my opinion that the said Stanley Robertson continues to suffer from a mental disorder, i.e., sociopathic personality disturbance, anti-social reaction. Although he no longer exhibits psychotic symptoms while in the hospital, in my opinion he would be dangerous to himself and others if given an outright release at this time.'
In his oral testimony Dr. Lanham repeated this diagnosis and stated that it was at variance with the official diagnosis of Saint Elizabeths Hospital. He also testified that the petitioner no longer exhibits any symptoms of a mental disorder and that during the seven months during which he was at liberty by reason of his escape, the petitioner did not commit any serious crime while roaming around the country until he was finally apprehended in Lincoln, Nebraska.