The opinion of the court was delivered by: Paul L. Friedman, United States District Judge.
On March 30, 1981, John W. Hinckley, Jr. attempted to assassinate the President of the United States, Ronald Reagan, in the driveway of the Washington Hilton Hotel. He wounded the President, Presidential Press Secretary James Brady, Secret Service Agent Timothy McCarthy, and Metropolitan Police Officer Thomas Delahanty, and Mr. Brady suffered permanent brain damage. By a 13-count indictment filed on August 24, 1981, Mr. Hinckley was charged under federal law with attempted assassination of the President of the United States, assault on a federal officer, use of a firearm in the commission of a federal offense, and with attempted murder, multiple assault charges and a weapons charge under the District of Columbia Code.
After being found competent to stand trial, Mr. Hinckley filed a notice of intent to raise an insanity defense. At his criminal trial, Mr. Hinckley presented evidence that he suffered from a mental disease or defect that was responsible for his conduct on the day of the shootings, and, on June 21, 1982, a jury found him not guilty by reason of insanity on all counts of the indictment. Judge Barrington Parker thereupon committed Mr. Hinckley to St. Elizabeths Hospital under D.C. Code § 24-301, where he has remained to this day.*fn1
The matter is now before the Court on John W. Hinckley, Jr.'s petition for limited conditional release pursuant to D.C. Code § 24-501(k) and on the proposal by St. Elizabeths Hospital that Mr. Hinckley be granted a limited conditional release pursuant to D.C. Code § 24-501(e). The government opposes both Mr. Hinckley's petition and the Hospital's proposal. An evidentiary hearing on the requested relief was held on November 17, 18 and 19, 2003, and continued on November 26, 2003. Closing arguments took place on December 4, 2003. Based on the evidence and arguments presented to the Court, and for the reasons that follow, the Court denies Mr. Hinckley's petition and grants the Hospital's proposal in part and denies it in part.
D.C. Code § 24-501(k) provides that a person in the custody of a mental hospital after being acquitted by reason of insanity may seek his conditional or unconditional release from the custody of the hospital by filing an appropriate motion with the court. D.C. Code § 24-501(e) provides that the superintendent of the hospital on his own may at any time certify that the mental health of the person has sufficiently improved such that he will not "in the reasonable future be dangerous to himself or others" if conditionally released. D.C. Code § 24-501(e); see Hough v. United States, 271 F.2d 458, 461 (D.C. Cir. 1959) (for conditional release "the court must conclude that the individual has recovered sufficiently so that under the proposed conditions [or others] 'such person will not in the reasonable future be dangerous to himself or others.'"). In either case, it is for the Court to determine whether the person warrants conditional release and, if so, under what conditions. See D.C. Code §§ 24-501(e), 501(k).
In the 21 years since John W. Hinckley, Jr. was committed to St. Elizabeths Hospital, both he and the Hospital have at various times sought some form of release from the Court. In both 1987 and 1988, the Hospital requested that Mr. Hinckley be released into the community under the supervision of Hospital staff, but both requests were withdrawn after the Hospital became aware that Mr. Hinckley had withheld information from the staff and had been deceptive. See Hinckley v. United States, 140 F.3d 277, 279 (D.C. Cir. 1998); February 1999 Psychological Risk Assessment, Government's Exh. 7 ("Feb. 1999 Risk Assess.") at 17-18.*fn2 In 1987, the Hospital request was withdrawn when it surfaced that Mr. Hinckley had written to Ted Bundy and had 57 pictures of Jodie Foster hidden in his room. The night before the 1988 hearing, Mr. Hinckley revealed that he had requested a nude caricature of Jodie Foster, a fact of which the Secret Service was already aware, and the request again was withdrawn. See Feb. 1999 Risk Assess. at 17-18.
In 1996, Mr. Hinckley petitioned the Court for conditional release under D.C. Code 24-301(k) to allow him 12-hour per month unsupervised visits with his parents off Hospital grounds. See United States v. Hinckley, 967 F. Supp. 557, 560-61 (D.D.C. 1997). The government called Dr. Raymond F. Patterson as an expert witness to testify at the evidentiary hearing with respect to this petition. Dr. Patterson opposed Mr. Hinckley's petition and disagreed with the Hospital's view that Mr. Hinckley would not be dangerous to himself or others if allowed unaccompanied visits with his parents. See id. at 560. Dr. Patterson referenced Mr. Hinckley's conduct with respect to the then-Chief Pharmacist at the Hospital, Commander Jeanette Wick, which was described by Dr. Patterson as bearing "striking similarities" to the pattern of behavior evidenced by Mr. Hinckley towards Jodie Foster prior to the attempted assassination of President Reagan.*fn3 Dr. Patterson viewed this "stalking" behavior as similar to Mr. Hinckley's prior history of stalking President Carter, President Reagan and Jodie Foster, and his obsessive infatuation with Ms. Foster. Id. at 561. This conduct, along with Mr. Hinckley's "past and continued propensity for deception and secretiveness, especially to those responsible for treating him," led Judge June Green to deny Mr. Hinckley's petition. Id.
Later in 1997, the Hospital notified the Court that it was approving a six-hour outing off Hospital grounds for Mr. Hinckley to visit his parents and his then-girlfriend, Leslie DeVeau, in the company of Hospital staff. The government objected, and after an evidentiary hearing, Judge Green ruled that Mr. Hinckley would not be permitted to leave the Hospital grounds because of Mr. Hinckley's "criminal conduct and his conduct at the Hospital since his admission in 1982." United States v. Hinckley, 984 F. Supp. 35, 37 (D.D.C. 1997). On appeal, however, the court of appeals concluded that the proposed outing was not a "conditional release" within the meaning of D.C. Code § 24-301(e) because Mr. Hinckley would be in the custody of Hospital personnel; the district court therefore did not have jurisdiction to either approve or reject the Hospital's proposal. See Hinckley v. United States, 163 F.3d 647, 652-55 (D.C. Cir. 1999).
The Hospital granted Mr. Hinckley "B" city privileges in 1999 which allowed him to participate in trips away from the Hospital grounds under the supervision of Hospital staff. See Transcript of November 2003 Evidentiary Hearing ("Tr."), Vol. I at 38 (Dr. Binks). On March 10, 2000, the Secret Service informed the Hospital that Mr. Hinckley had approached and examined several books at bookstores while on "B" city excursions that the Secret Service believed could be relevant to Mr. Hinckley's clinical assessment and treatment. See March 10, 2000 Letter from Secret Service, Defendant's Exh. 4 ("Secret Service Letter"). Mr. Hinckley's treatment team reviewed the correspondence and interviewed Mr. Hinckley, but concluded that Mr. Hinckley's interest in the materials was "significantly different" from his fascination with the violently-themed materials he had been reading at the time of the assassination attempt. March 14, 2000 Progress Note, Defendant's Exh. 5.
Because of the success of the "B" city visits, and despite the questions raised by the Secret Service, on March 31, 2000, the Hospital submitted a Section 301(e) proposal recommending that the Court allow Mr. Hinckley a limited conditional release by which he would be permitted unsupervised day visits with his parents in the Washington, D.C. area. See March 31, 2000 Letter from D.C. Commission on Mental Health Services, Government's Exh. 14 ("March 31, 2000 Letter"). Prior to the hearing on the Hospital's proposal, the government subpoenaed the bank statements and credit card records of Ms. DeVeau. See July 10, 2000 Report of Dr. Teresa Stathas, Government's Exh. 12 ("Stathas Rep.") at 1. After becoming aware of the subpoenas, Mr. Hinckley reported that there were several books he had read that might be significant. He produced a list of the titles and was placed on ward hold as the titles were reviewed. See id. Ms. DeVeau then informed Dr. Stathas that she had purchased a book on Jodie Foster in 1998, and the treatment team discovered that Mr. Hinckley recently had learned about Ms. DeVeau's purchase of the book but had not disclosed his knowledge of the book to anyone on the treatment team. See id. at 1, 3.*fn4 The Hospital was concerned about Mr. Hinckley's deceptive tendencies and his relationship with his treatment team since he revealed his list of reading materials only after learning of the subpoenas. See id. at 9. The Hospital therefore withdrew the conditional release proposal it had made to the Court, but determined that Mr. Hinckley should not lose any of his then-current privileges as a result of the incident. See id. at 10.
Mr. Hinckley currently enjoys "D" privileges, which allow him unsupervised access to the Hospital grounds and "B" city privileges which involve trips into the community supervised by Hospital staff. See Tr., Vol. I at 28, 35 (Dr. Binks). He has participated in over 200 "B" city outings without incident. See Tr., Vol. IIa at 45 (Dr. Keisling). These have included trips with other patients to bowling alleys, malls, the theater, restaurants, the beach and bookstores, as well as excursions with his parents, which have included meals at restaurants and visits to Leslie DeVeau's house. See Tr., Vol. I at 40-41 (Dr. Binks). Mr. Hinckley is not currently permitted to leave the Hospital without the supervision of Hospital personnel.
Mr. Hinckley is petitioning the Court under D.C. Code § 24-501(k) to release him into the community under the supervision of his parents for five 12-hour day visits at their home, outside the Washington, D.C. area, unsupervised by Hospital personnel, followed by five 36-hour overnight visits at his parents' home, also unsupervised by Hospital personnel. See Motion for Limited Conditional Release at 1.
The Hospital opposes Mr. Hinckley's petition and has submitted a more gradual release proposal under D.C. Code § 24-501(e). The Hospital proposes that Mr. Hinckley be allowed two 12-hour visits with his parents in the Washington, D.C. area on either Saturdays or Sundays, followed by two 32-hour overnight visits with his parents in a hotel in the Washington, D.C. area, also on weekends. If those visits are successful, then the Hospital proposes six overnight, 36-hour visits on weekends at his parents' home outside the Washington, D.C. area. See August 5, 2003 Letter from D.C. Department of Mental Health, Defendant's Exh. 7 ("Aug. 5 Letter"); November 25, 2003 Letter from D.C. Department of Mental Health, Defendant's Exh. 11 ("Nov. 25 Letter").*fn5
The government opposes both Mr. Hinckley's petition and the Hospital's proposal.
A person who has been confined to a hospital for the mentally ill after having been acquitted of a crime by reason of insanity has two means of achieving conditional release. He may file a petition with the court seeking his conditional release. See D.C. Code § 24-501(k). Alternatively, if the superintendent of the hospital where the person is confined believes that the patient is in a condition to be conditionally released under supervision, the superintendent may file a certificate with the clerk of the court so indicating. See D.C. Code § 24-501(e). The letters of August 5, 2003, and November 25, 2003, from the Hospital express the belief that Mr. Hinckley has recovered sufficiently from his mental illness to be granted a limited conditional release under Section 501(e). See Aug. 5, 2003 Letter; Nov. 25, 2003 Letter. Whether the court is considering a patient's petition or the superintendent's certificate, unless the request is uncontested or the outcome plain, the court must hold a hearing to determine the present mental condition of the person and whether, if released, he will be a danger to himself or others in the reasonable future. D.C. Code §§ 24-501(e), (k).
When the matter comes before the court on a petition under D.C. Code § 24-501(k), "the person [seeking release] shall have the burden of proof," and the court must find "by a preponderance of the evidence" that the person is entitled to conditional release. D.C. Code § 24-501(k). By contrast, the statute does not make clear who carries the burden of proof in a hospital-initiated release proposal. See D.C. Code § 501(e). Judge Wilkey's opinion in United States v. Ecker indicates that in a hospital-initiated proceeding, there is "no assignable burden of proof;" rather, these are "truly investigatory proceedings," and the court, the hospital, the patient and the government all "share an obligation to elucidate and explore all the relevant facts." United States v. Ecker, 543 F.2d 178, 193 (D.C. Cir. 1976). Judge Lumbard, concurring, would have placed the burden of proof on the hospital to demonstrate by a preponderance of the evidence that conditional release would not endanger others. Id. at 201 (Lumbard, J., concurring). Judge Wright, in his dissent, noted that it would be strange to place the burden of proof on the hospital where the government (perhaps technically representing the hospital) may itself be opposing the motion, that Judge Wilkey's opinion "seems clearly to place the burden of persuasion on the patient or perhaps the hospital," and that hospital certification "must mean that the hurdles are not as high as if [the patient] sought conditional release on his own motion." Id. at 202-03 & n.5 (Wright, J., dissenting) (emphasis in original). The court of appeals later noted, with respect to a Section 301(k) petition filed by Mr. Hinckley seeking conditional release that was denied by the district court, that Mr. Hinckley would not bear the burden of proving his case by a preponderance of the evidence "if the Hospital had supported his conditional release and gone to the district court on his behalf." United States v. Hinckley, 140 F.3d at 282.
Regardless of who bears the burden of proof or persuasion, it is clear to this Court that the Hospital's proposal under D.C. Code § 24-501(e) should only be approved if the evidence shows that the proposed conditional release is appropriate under the standards set forth in the statute by a preponderance of the evidence. See United States v. Ecker, 543 F.2d at 188 (district court must make an "affirmative finding that it is at least more probable than not" that the patient will not be violently dangerous in the future); DeVeau v. United States, 483 A.2d 307, 310 (D.C. 1984) (preponderance standard endorsed).
In considering either a hospital-initiated or a patient-initiated request for conditional release, the district court is obligated to make its own independent judicial determination regarding the patient's dangerousness. See United States v. Ecker, 543 F.2d at 184. The function of the court is to determine whether the facts as shown by the evidence offered "measure up to the statutory standards for release." Id. at 185. In order to grant release, the court must determine that the patient, under the proposed conditions, "will not in the reasonable future be dangerous to himself or others." Hough v. United States, 271 F.2d at 461; see also United States v. Ecker, 543 F.2d at 187. Under this standard, the existence of "a substantial problem of danger in the reasonable future provides an adequate basis for the continued detention and confinement of an insanity acquittee" who has committed a violent act. United States v. Ecker, 543 F.2d at 188. If, on the other hand, the evidence shows by a preponderance of the evidence that the patient will not be a danger under the proposed or other reasonable conditions of release, then the court must grant the petition for conditional release.*fn6
As the government points out, in receiving and considering the evidence, a court is not required to accept the opinion of any expert witness, or even the unanimous opinion of all the experts, but must consider all relevant evidence including "the patient's hospital file, the court files and records in the case, and whatever illumination is provided by counsel." United States v. Ecker, 543 F.2d at 184-85; see also id. at 190 ("the issue of 'dangerousness' presents the district court with a difficult mixed question of law and fact, and the court is under no obligation to accept the experts' opinions on questions of law"). The court must independently weigh the evidence and decide for itself the ultimate question whether if released under appropriate conditions the patient will not in the reasonable future be dangerous to himself or others. See id. at 187. The court must take care, however, to base any denial of release on the evidence itself, and not substitute its own opinion for the evidence presented by the parties. See id. at 185 & n.20.
The government argues that Mr. Hinckley has failed to carry his burden under Section 501(k) of the statute and that the Hospital's proposal fails to satisfy the requirements of Section 501(e). The government believes that Mr. Hinckley still poses a substantial risk of danger and that he cannot safely be released from the Hospital for limited periods of time under the supervision of his parents even under the conditions proposed by the Hospital.
The government argues that release should be denied on the following grounds:
(1) Mr. Hinckley has a long history of violence, and the damage he caused to President Reagan, Mr. Brady and his other victims on March 30, 1981 was enormous; (2) Mr. Hinckley's narcissism is not in remission and his psychosis could return without being noticed promptly, as evidenced by his stalking of Commander Wick in 1995; (3) Mr. Hinckley's long history of deception goes back to the early 1980's and is reflected in his lies about his lack of interest in Jodie Foster to Dr. Miller in 1987 and to Dr. Patterson in 1988, his withholding of information with respect to Commander Wick in 1995, his failure to disclose Ms. DeVeau's purchase of the Jodie Foster book in 2000, and his failure to fully identify the books he was reading prior to 2000; (4) Mr. Hinckley is intentionally attempting to keep mental health professionals in the dark about what he is thinking by ceasing his prolific reading and writing activities, thus making the data available too limited to properly evaluate him; (5) Mr. Hinckley's psychological tests are elevated for controlled hostility and indicate that he is defensive and guarded; (6) mental health professionals at the Hospital, having become advocates for Mr. Hinckley, have failed to grasp the impact of his ongoing narcissism, have downplayed his deceptiveness, and have failed to recognize the serious concerns raised by the books he has read and examined; and (7) Mr. Hinckley's parents are not adequate custodians because they are elderly and could not physically control him if doing so became necessary, they do not believe he is currently mentally ill or dangerous and thus lack insight into his problems, and they will not know what to do if problems develop while he is away from the Hospital under their supervision.
In examining the evidence, the Court notes that Mr. Hinckley's petition under Section 501(k) is opposed not only by the government, but also by the Hospital and the majority of the testifying experts. The Court also notes that major portions of the Hospital's proposal for conditional release under Section 501(e), as amplified by its letter of November 25, 2003, are supported by all of the experts called to testify both by Mr. Hinckley and by the government. None of the experts believes that Mr. Hinckley would pose a danger to himself or others if released on appropriate conditions to the supervision of his parents.
At the evidentiary hearing, counsel for Mr. Hinckley called as witnesses: (1) Dr. Sidney W. Binks, a PhD psychologist specializing in neuropsychiatric disorders, who has been a member of Mr. Hinckley's treatment team and his treating psychologist since 1999; (2) Dr. Robert Keisling, a psychiatrist and former Medical Director of the Forensic Inpatient Service at John Howard Pavilion at St. Elizabeths Hospital, who was Mr. Hinckley's treating psychiatrist from mid-1998 until September 1999; and (3) Mrs. Jo Ann Hinckley, Mr. Hinckley's mother. The government called as witnesses: (1) Dr. Robert Phillips, a psychiatrist and former Director of Forensic Services for the State of Connecticut Department of Mental Health, who examined Mr. Hinckley at the request of the government in both 2000 and 2003; and (2) Dr. Raymond F. Patterson, a psychiatrist, former Medical Director and former Acting Associate Superintendent at St. Elizabeths Hospital, former Commissioner of Mental Health in the District of Columbia, and former Forensics Director for the State of Maryland, who examined Mr. Hinckley in 1996 and 1997 and testified in opposition to his conditional release at the 1997 hearing before Judge Green. See Tr., Vol. IIb at 27, 33 (Dr. Phillips); Tr., Vol. III at 39-40 (Dr. Patterson). When the hearing reconvened, counsel for Mr. Hinckley called as a rebuttal witness Dr. Paul Montalbano, Pretrial Chief at the Forensic Services Unit at John Howard Pavilion at St. Elizabeths Hospital, who conducted psychological risk analyses of Mr. Hinckley in 1999 and 2003. See Tr., Vol IV at 5, 11 (Dr. Montalbano).
A. Expert Testimony and Reports
The expert witnesses for both Mr. Hinckley and the government were in substantial agreement concerning Mr. Hinckley's current diagnosis. All agree that he currently is mentally ill and suffers from psychotic disorder, not otherwise specified ("psychotic disorder NOS"); major depression; and narcissistic personality disorder. Both the psychotic disorder NOS and the major depression disorder, his Axis I disorders, were described by all the experts as being in full remission. Although the experts disagree as to the exact number of years that Mr. Hinckley's Axis I disorders have been in full remission, they all concur that he has been asymptomatic for a significant period of time. See Tr., Vol. I at 21-22 (Dr. Binks); Tr. Vol. IIa at 18 (Dr. Keisling); Tr., Vol. IIb at 34 (Dr. Phillips); Tr., Vol. III at 43 (Dr. Patterson).*fn7 As to Mr. Hinckley's Axis II disorder, narcissistic personality disorder, Dr. Keisling opined that Mr. Hinckley is no longer displaying overt signs of narcissism, which could include a grandiose sense of self-importance; the patient's belief that he is special and unique; a sense of entitlement; interpersonal exploitation; a lack of empathy; and arrogance. See Tr., Vol. IIa at 28-29 (Dr. Keisling).
The doctors noted that Mr. Hinckley currently is self-medicated on 1mg of Risperdal per day. See Tr., Vol. I at 59 (Dr. Binks). The Risperdal is purely prophylactic and is intended to prevent a relapse of his psychotic disorder. If Mr. Hinckley were to miss the medication, there would be no immediate physiological change, and he would probably have to miss several weeks before the lack of medication would be physiologically significant. See Tr., Vol. IIa at 26-27, 39 (Dr. Keisling).*fn8
Since the withdrawn conditional release proposal of 2000, Mr. Hinckley has not violated any of his privileges. He has never tried to elope (that is, escape) and he has not been violent or aggressive at the Hospital or on the "B" city trips. All the experts agreed that Mr. Hinckley would present a very low risk of danger to himself or others should the Hospital's request for conditional release for local, unsupervised day visits with his parents be granted, and all except Dr. Phillips have the same positive view of overnight trips with his parents in a hotel in the Washington, D.C. area. See Tr., Vol. III at 28 (Dr. Phillips).*fn9 The majority of the experts and the Hospital believe that Mr. Hinckley's proposal under Section 501(k) is not appropriate at this time. See Report of Dr. Robert Phillips, Government's Exh. 2 ("Phillips Rep.") at 52; Report of Dr. Raymond Patterson, Government's Exh. 4 ("Patterson Rep.") at 23; Aug. 5, 2003 Letter.*fn10
All the experts who testified had access to four psychological risk assessments of Mr. Hinckley conducted by Dr. Paul Montalbano in 1999 and 2003 based on a battery of psychological tests administered by Dr. Montalbano. The most recent tests indicated that Mr. Hinckley has a consistently elevated "K" scale, which is indicative of defensiveness or guardedness. See August 4, 2003 Psychological Testing Update, Government's Exh. 10 ("Aug. 2003 Risk Assess.") at 6. Dr. Montalbano expressed the concern that Mr. Hinckley "overcontrolled hostility" and, as a result, may rigidly deny hostility or anger. Id. at 7. Dr. Montalbano expressed the view, with respect to the incident in 2000 when Ms. DeVeau told Mr. Hinckley that she had purchased a book about Jodie Foster and Mr. Hinckley did not inform his treatment team, that Mr. Hinckley exercised "poor judgment" and "deliberately withheld important information from the treatment team." January 22, 2003 Psychological Risk Assessment Update, Government's Exh. 9 ("Jan. 2003 Risk Assess.") at 17. When Dr. Montalbano interviewed Mr. Hinckley on this topic, Mr. Hinckley was "vague" and "evasive." Id. Dr. Montalbano's most recent risk assessment ...