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March 7, 1977


The opinion of the court was delivered by: ROBINSON, JR.

 AUBREY E. ROBINSON, Jr., District Judge.

 In a bifurcated jury trial the defendant, Thomas L. Robertson, was convicted of second degree murder, assault with intent to kill while armed and carrying a pistol without a license. After a hearing to determine whether an insanity defense should be raised over defendant's objections, this Court resolved that question in the negative. On appeal, the case was remanded to supplement the record by hearing evidence supporting and in opposition to the imposition of the insanity defense. United States v. Robertson, 165 U.S.App.D.C. 325, 335-6, 507 F.2d 1148, 1158-59 (1974).

 On December 4, 1974, (six weeks after the decision of the Court of Appeals) defendant, through counsel, for the first time advised the Court that he wished to assert the insanity defense in his own behalf. Additional evidence was taken on March 17 and 18, 1975. By memorandum filed November 21, 1975, this Court found that there was an evidentiary basis for the insanity defense, and further stated that:

Since the defendant, with the assistance of his present counsel, now vigorously asserts his desire to present an insanity defense, this Court respectfully suggests that the question whether or not the defense should have been imposed sua sponte is now moot and this case should be remanded for a new trial.

 On January 23, 1976, in its Supplemental Opinion on Remand, the Court of Appeals agreed with this Court and remanded the case for a new trial. It left to this Court the exercise of its discretion to determine whether or not to limit the new trial to the issue of criminal responsibility. At a status hearing on February 20, 1976, defendant, through counsel restated and reaffirmed his desire to assert the insanity defense and this Court determined that the new trial would be limited to the issue of criminal responsibility. The trial was set for April 26, 1976.

 During the voir dire of the jury panel on April 26, 1976, defendant, through counsel, announced at a bench conference that it was then his desire not to raise the insanity defense. The voir dire was completed, the jury selected and sworn and preliminary instructions were given to the jury and the Court then recessed for lunch. After consultation with counsel for the Government and for the defendant and after questioning of the defendant by the Court with respect to his abrupt change, the trial was recessed until April 27, 1976.

 Defendant was fully advised by the Court concerning the ramifications of his decision to forgo the assertion of the insanity defense. After being advised, defendant continued his refusal to assert the insanity defense or to permit his counsel to do so. In light of defendant's decision, and since, in the eventuality that the Court decided to raise the defense sua sponte, new counsel would have to be appointed as amicus curiae, defendant, through counsel, moved for a mistrial. The Court granted defendant's motion.

 This course of proceeding left for resolution the issue whether or not the Court, sua sponte, should impose the insanity defense over the objection of defendant. The Government objected to the raising of the defense and its request was granted to augment the record of the March 17 and 18, 1975 hearings with the testimony of Dr. Elizabeth Strawinsky, a psychiatrist who had examined defendant on two occasions but who had not testified during the March 1975 hearings.

 On May 14, 1976, Dr. Strawinsky, a psychiatrist and Director of Forensic Programs at St. Elizabeth's Hospital prior to her retirement in July 1974, testified that she had chaired the staff conference resulting from defendant's admission in October 1971 for pre-trial examination. She conducted a mental examination as it would be done in a conference setting. She found the defendant to be polite, cordial and comfortable. His speech was not pressured or irrational nor was there a loss of conversational controls. He seemed to have a good memory, was oriented as to time, place and person, comprehended her remarks and questions, was alert, seemed of average intelligence and was neither hallucinating or delusional. He emphasized his maleness and borrowed heavily from ideas of "Black Power" and "Black Muslims." Robertson considered himself a "Black Leader" who did not think it was murder to kill Aleshire because he was a "White Honky" and not human and who viewed the shooting of Hart as an attempt to put an "underling" in his place.

 In June 1972, Dr. Strawinsky had re-examined Robertson, had seen no significant differences in him and had reaffirmed her earlier diagnosis. Her opinion with respect to both of her earlier diagnoses remained unchanged.

 In addition to the testimony of Dr. Strawinsky, this Court received in evidence defendant's grades and letters from defendant's former teachers at Federal City College. The letters characterized defendant as a "serious student," "conscientious and enthusiastic," possessing a "quick and independent mind," and a man of "good character and judgment." A letter from Pride, Inc., defendant's former employer, described him as a man of worthwhile character as an instructor in their Continuing Education Department.

 This Court is aware of the holding of the Court of Appeals in Whalem v. U.S., 120 U.S.App.D.C. 331, 346 F.2d 812 (1965) that when there is a sufficient question as to a defendant's mental responsibility at the time of the crime, that issue must become a part of the case. This Court is further mindful of its own conclusion on November 21, 1975, that "there is sufficient evidence of a serious mental illness which substantially affected defendant's mental and emotional processes and behavioral controls such as to require a determination of his criminal responsibility." However, in light of defendant's subsequent reversal of his decision after appeal to pursue an insanity defense, this Court has reconsidered its ...

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