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
Two years ago, this matter came before the Court on Mr. Hinckley'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). After an evidentiary hearing, at which all of the experts agreed that conditional release was appropriate, the Court issued an Opinion and Order which denied Mr. Hinckley's petition and granted in part and denied in part the proposal submitted by St. Elizabeths Hospital. The Court granted Mr. Hinckley six local day visits within a 50-mile radius of the Hospital (Phase I) and two local overnight visits (Phase II) both under the supervision of his parents, but without Hospital accompaniment. The Court also imposed a series of stringent conditions on the preparation for the visits, the visits themselves and the debriefing after the visits.*fn2 By all accounts, these visits were entirely successful, Mr. Hinckley and his parents complied with all the conditions imposed by the Court, and the visits were very therapeutic.
Last year, this matter again came before the Court on Mr. Hinckley'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). Mr. Hinckley's Section 501(k) petition and the Hospital's Section 501(e) proposal each asked that Mr. Hinckley be allowed to have visits at his parents' residence outside the metropolitan Washington, D.C. area, though differing in the specifics of the proposed visits. The government, the Hospital, and the majority of testifying experts opposed Mr. Hinckley's petition. The Hospital's proposal for conditional release under Section 501(e) was opposed by the government and the government's expert witnesses. Based on the evidence and arguments presented to the Court, as well as the evidence presented at the 2003 hearing and the entire record in this case, the Court denied Mr. Hinckley's petition and rejected the Hospital's proposal, citing particular concerns with the relationship between Mr. Hinckley and his former girlfriend, Leslie DeVeau. The Court did, however, allow Mr. Hinckley continued Phase II local overnight visits identical to those already successfully completed. See United States v. Hinckley, 346 F. Supp.2d 155 (D.D.C. 2004) ("Hinckley II").
This matter is now before the Court on John W. Hinckley, Jr.'s petition to enlarge the terms of his conditional release pursuant to D.C. Code § 24-501(k) and on the proposal by St. Elizabeths Hospital that Mr. Hinckley be granted an enlarged limited conditional release pursuant to D.C. Code § 24-501(e). Mr. Hinckley's Section 501(k) petition asks that he be allowed to have a series of six conditional release visits at his parents' residence outside the metropolitan Washington, D.C. area. Mr. Hinckley's petition proposes that the first visit be for two nights, with an additional night added to each visit until the last of the six visits is of seven nights in duration. He further requests that there be no more than three weeks between each visit. Mr. Hinckley's petition incorporates all the conditions set by the Court in its previous December 2003 and November 2004 orders, with any necessary modifications to accommodate the expanded privileges and any other conditions that the Court deems fit to set, including that the Secret Service notify local law enforcement of his presence in the area.
The Hospital opposes Mr. Hinckley's Section 501(k) petition and has submitted a different proposal for expanded conditional release. Under the Hospital's Section 501(e) proposal, Mr. Hinckley initially would be permitted three visits of three nights in duration to his parents' home outside the metropolitan Washington, D.C. area. These visits would take place on weekends, from a Friday at 9:00 a.m. to Monday at 1:00 p.m. If deemed successful by the treatment team and the Hospital Forensic Review Board, Mr. Hinckley would be allowed additional ongoing visits of four nights in duration, starting on a Thursday at 9:00 a.m. to the following Monday at 1:00 p.m. The proposal places no numerical limit on the number of visits Mr. Hinckley would be allowed. The Hospital further requests that there be at least a six week period between each visit to allow the Hospital opportunity for a full evaluation of each visit and an opportunity to plan for the next visit. The government opposes both Mr. Hinckley's petition and the Hospital's proposal.
The Court held an evidentiary hearing on the requested relief on September 19, 20 and 21, 2005. Closing arguments were heard on September 27, 2005. On September 29, 2005, the Court requested supplemental information from the Hospital which was submitted in writing on October 14, 2005. The government responded on October 21, 2005, and Mr. Hinckley filed a reply on October 26, 2005. The Court notes that this year all of the testifying experts, including the government's experts, support some form of expanded conditional release for Mr. Hinckley. The majority of the experts, including one of the two government experts, supports the Hospital's 501(e) proposal. Based on the evidence and arguments presented to the Court, as well as the evidence presented in the hearings of the past two years and the entire record in this case, 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).
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. See 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). The statute does not make clear who carries the burden of proof in a hospital-initiated release proposal. See D.C. Code § 501(e). Regardless of who bears the burden of proof or persuasion, 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 178, 188 (D.C. Cir. 1976) (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).*fn3
In considering either a hospital-initiated or a patient-initiated request for conditional release, the 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.*fn4
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 and n.20.
B. Relationship with Leslie DeVeau
The focus of last year's hearing was on Mr. Hinckley's 22-year relationship with his former girlfriend, Leslie DeVeau. The government argued strenuously that it was not certain how Mr. Hinckley was handling the end of his romantic relationship with Ms. DeVeau and that his potentially adverse reaction was a major risk factor in a relapse of his mental illnesses. Furthermore, the lack of clarity in the ongoing friendship between Mr. Hinckley and Ms. DeVeau, and the fact that Mr. Hinckley may not have been forthcoming regarding his continuing friendship with Ms. DeVeau, were pointed to as matters of concern expressed by both of the government's expert witnesses, Dr. Robert Phillips and Dr. Raymond Patterson. The Hospital's failure to address the nature of the relationship and its impact on Mr. Hinckley's mental state was also of concern to Dr. Phillips and Dr. Patterson. See Hinckley II, 346 F. Supp.2d at 160-65, 168-70. In an effort to address these concerns, the Hospital made contact with Ms. DeVeau through her attorney during the hearing. Id. at 171-74.*fn5 At a meeting between the treatment team and Ms. DeVeau, accompanied by her attorney, Ms. DeVeau discussed the nature of her relationship with Mr. Hinckley and the change it had undergone, from a romantic relationship to friendship, beginning around 2000. Id. at 172. Ms. DeVeau indicated at that time that she might be open to becoming more involved in Mr. Hinckley's therapeutic process and meeting with his treatment team, outside the presence of her attorney. Id.
The Court agreed with the government's experts that the hasty, eleventh hour meetings with Ms. DeVeau in an effort to address the Court's and the government's experts concerns was not an appropriate method of evaluating Ms. DeVeau's relationship with Mr. Hinckley, the impact it had on his mental state, the possibility of continued deceptiveness by Mr. Hinckley, or the potential for dangerousness that the change in that relationship could create in him. See Hinckley II, 346 F. Supp.2d at 177, 179. In addition to noting the "circus-like tenor" of last year's hearing, the Court noted that the Hospital had done itself no favors in ignoring Mr. Hinckley's relationship with Ms. DeVeau until it became critical that it respond to the concerns raised at the hearing. Id. at 179.
II. THE 2005 EVIDENTIARY HEARING
At this year's evidentiary hearing, Mr. Hinckley called three witnesses: (1) Dr. Sidney W. Binks, a Ph.D. 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 Medial 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) Dr. Paul Montalbano, Pretrial Chief at the Forensic Services Unit at John Howard Pavilion at St. Elizabeths Hospital, who has conducted six psychological risk analyses of Mr. Hinckley since 1999, most recently in July 2005 for the an updated assessment to present to the Court at this year's hearing. 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 2000, 2003, 2004 and 2005; 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 testified in opposition to Mr. Hinckley's conditional release at the 1997 hearing before Judge June Green, testified in support of his conditional release at the 2003 hearing before this Court, and testified in opposition to Mr. Hinckley's increased conditional release request at the 2004 hearing. The government recalled Dr. Montalbano at the end of its expert's testimony to clarify further the meaning of one of the diagnostic tests he administered to Mr. Hinckley.
All of the experts who testified had access to six psychological risk assessments of Mr. Hinckley conducted by Dr. Paul Montalbano in 1999, 2003, 2004 and, most recently, July 2005, in addition to numerous other materials including hospital records, letters between Ms. DeVeau's attorney and the Hospital, and other relevant materials. Each of the government's expert witnesses interviewed both Mr. Hinckley and Mr. Hinckley's parents in preparation for their testimony.
A. Diagnosis and Areas of Concern
1. Mr. Hinckley's Diagnosis
The experts for both Mr. Hinckley and the government were in substantial agreement about Mr. Hinckley's current diagnosis. All agree that he is currently mentally ill and suffers from two Axis I disorders: psychotic disorder, not otherwise specified ("psychotic disorder NOS") and major depression. All the experts agree that there have been no active symptoms or symptoms of any significance of these Axis I disorders in a number of years. All experts describe Mr. Hinckley's psychotic disorder NOS and major depression as being in full remission.
All the experts also agree that Mr. Hinckley suffers from an Axis II disorder: narcissistic personality disorder. Dr. Montalbano describes Mr. Hinckley's narcissistic personality disorder as significantly attenuated. Dr. Patterson described it as reduced in intensity, but added that Mr. Hinckley continues to have outlets for it. At this year's hearing, Dr. Binks, in contrast to last year's testimony in which he also described this Axis II disorder as significantly attenuated, stated that in his professional opinion Mr. Hinckley's narcissistic personality disorder now is in remission. Dr. Keisling, as he did last year's hearing, described Mr. Hinckley as having had no symptoms of narcissistic personality disorder since 1998. Dr. Keisling noted in his testimony this year that even if Mr. Hinckley does continue to have the disorder, it alone would not make him violent. He further stated that he knew of no person who had ever been involuntarily committed for narcissistic personality disorder alone.
Dr. Phillips and Dr. Patterson agreed with the Hospital's doctors, except with respect to Dr. Binks' view about the Axis II disorder. Dr. Patterson stated that Mr. Hinckley's narcissistic personality was reduced but that he still had some elements of it, such as guardedness, defensiveness, isolativeness, and judgment issues, particularly in interpersonal relationships. While Dr. Patterson agreed that the Axis I disorders were in full remission, he stated that it was "absurd" to say that Mr. Hinckley showed no symptoms of mental illness during the 1990's. There are, however, no suicidal or homicidal indicators.
The Hospital's doctors noted that Mr. Hinckley remains on 1mg of Risperdal per day. According to them, the Risperdal is purely prophylactic and is intended to prevent a relapse of his psychotic disorder. Dr. Patterson does not agree that the Risperdal is purely prophylactic, testifying that the medication is helpful to reduce the likelihood of decompensation. Dr. Keisling testified at the 2003 hearing that 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. Dr. Keisling ...