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September 23, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Fred B. Ugast, Motions Judge)

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Appellant, confined to St. Elizabeths Hospital pursuant to a judgment of not guilty by reason of insanity, filed a motion for release from the Hospital pursuant to D.C. Code § 24-301(k) (1989). *fn1 He had a lengthy hearing and was denied release in an extensive written opinion. We deal principally with appellant's contention that the trial court improperly placed the burden of proof on him to show his entitlement to release.

An insanity acquittee who has either regained his sanity or is no longer a danger to himself or society may no longer be confined in a mental institution pursuant to the insanity judgment. Jones v. United States, 463 U.S. 354, 370, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983). Our statute explicitly places the burden of proof on the insanity acquittee seeking release to prove his right to release by a preponderance of the evidence. *fn2 Nonetheless, appellant claims that such a requirement must be held unconstitutional under the Supreme Court's decision in Foucha v. Louisiana, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992). We find no merit in this contention.

In Foucha, the Court had before it a state law that permitted an insanity acquittee to be held in a mental institution until he was able to demonstrate that he was not dangerous, even though he no longer suffered from any mental illness. The state did not contend that Foucha was still mentally ill in any respect, only that he had an "antisocial personality." Foucha, supra, 112 S. Ct. at 1784. The Court said that such a condition was insufficient to permit further custody in a mental institution under the original insanity judgment. The Court thus struck down the law "which permitted the indefinite detention of insanity acquittees who are not mentally ill but who do not-prove they would not be dangerous to others." Id. at 1787.

The Foucha opinion, however, proceeds from the postulate of a conceded recovery from mental illness. We see nothing in the Foucha ruling which mandates a ruling that the statutory placement of the burden of proof on the insanity acquittee to demonstrate his right to release in the first instance is unconstitutional. *fn3 To the contrary, in Foucha the Court relies heavily on its prior opinion in Jones, supra, a case which was taken on certiorari from our court to address a due process challenge to the statutory scheme for insanity acquittees in the District. The Jones Court upheld that scheme insofar as it permitted indefinite custody until the acquittee was no longer mentally ill or dangerous. 354 U.S. at 370.

In Reese v. United States, 614 A.2d 506 (D.C. 1992), we had occasion to consider Jones in connection with a challenge to the allocation of the burden of proof in the criminal commitment context. That appeal addressed the application of civil commitment standards to an insanity acquittee. In rejecting the claim with regard to the burden of proof, we quoted from our Conclusion in Jones v. United States, 432 A.2d 364 (D.C. 1981), aff'd, 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983), that it was

entirely rational for the District to require an acquittee to prove his entitlement to release where he was the one to advocate the fact of his past insanity . . . . As mentioned above, the presumption that a mental condition continues is a reasonable one and it is also reasonable to require the person who raised the presumption to refute it by affirmative proof.

Reese, supra, 614 A.2d at 514 (quoting Jones, supra, 432 A.2d at 374). We noted further that in affirming our Jones decision, the Supreme Court had specifically held that the Constitution permits the government to confine a defendant in a mental institution on the basis of the insanity judgment until such time as he has regained his sanity or is no longer a danger to himself or society. Id. at 514-15. While Jones did not deal directly with the question of the burden of proof in subsequent release motions, we see nothing in its reasoning nor in the narrow holding of Foucha which fairly calls into question the constitutionality of the statutory allocation of the burden in a section 24-301(k) proceeding. "Where the evidence weighs equally in favor and against release of the acquittee, the court must deny release in order to protect the public's safety." DeVeau v. United States, 483 A.2d 307, 314 n.16 (D.C. 1984); see also, e.g., Overholser v. O'Beirne, 112 U.S. App. D.C. 267, 274, 302 F.2d 852, 859 (1961) ("'reasonable medical doubts or reasonable judicial doubts are to be resolved in favor of the public'") (quoting Ragsdale v. Overholser, 108 U.S. App. D.C. 308, 312, 281 F.2d 943, 947 (1960)). *fn4

Appellant also invokes Foucha in asking us to consider the question whether appellant's "anti-social personality disorder" found by the trial court would in itself suffice to warrant further custody at the Hospital. Such an inquiry, however, is unnecessary in this appeal. The trial court in addition found that appellant is still suffering from an "Axis I major mental illness" (residual schizophrenia) to which his dangerousness is attributable, which alone justified the denial of appellant's motion for release. *fn5


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