Duane Earl Pope, born 1943, is a convicted
murderer serving a life sentence for one of the bloodiest bank
robberies in modern times, the 1965 robbery of the Farmers State Bank
in Big Springs, Nebraska.
Born in 1943, Pope grew up on a small, 160-acre
(0.65 km2) farm outside of Roxbury, Kansas, an
unincorporated town in the northeast portion of McPherson County. He
was one of eight children. Shy, quiet, and athletic as a child, Pope
grew up with a fascination for guns and tractors, neither of which is
particularly unusual for a farm boy.
He graduated in 1965 from McPherson College in
McPherson, Kansas with a degree in industrial education, although he
lacked the teaching component of that degree that would led him get a
job teaching high school industrial arts. He excelled in football but
was a mediocre student.
Pope got the idea to rob the Big Springs bank while
working in wheat fields there one summer while he was in college.
While in college, he bought several Caterpillar tractor/bulldozers and
was contemplating starting an excavation businesses but needed money
for a trailer.
In preparation for the Big Springs robbery, he
built handmade silencers for his pistols in the machine shops at his
college and experimented with them in his family's barn. He also
fashioned a breastplate out of a piece of a bulldozer blade.
Two days after graduating from college, Pope
borrowed fifty dollars from his father and said he was heading for
Oklahoma to look for work. Instead, he went to Salina, Kansas, rented
a new car, and drove to Nebraska.
Late in the morning of June 4, 1965, after circling
the bank and watching for the morning customers to clear out, Pope
conversed with a banker pretending to be a landowner seeking a loan,
and then pulled a Ruger .38 semiautomatic pistol and ordered the bank
employees to fill his briefcase with cash. After getting what he could
(about $1,600), Pope ordered the four bank workers to lie face down on
the floor, where he shot them execution-style in the back and in the
neck. Three of the victims, bank president Andreas (Andy) Kjeldgaard,
77; cashier Glenn Hendrickson, 59, and bookkeeper Lois Ann Holthan,
35, died instantly. The fourth, Franklin Kjeldgaard, 25, survived his
wounds but was paralyzed for life.
Pope made a circuitous exit from Big Springs,
spotted by several witnesses. He tossed his gun and breastplate along
the road; they were recovered by the FBI. He dropped some of the money
off at his family home, then returned the car to Hertz in Salina. He
then traveled by bus and plane to Tijuana, Mexico by way of Fort Worth
and El Paso, Texas. While holed up in San Diego, Pope discovered that
authorities had deduced he was the killer. Pope next went to Las
Vegas, Nevada, where he gambled and enjoyed himself.
Pope appeared on the FBI 10 Most Wanted List for
one day. Upon reading an appeal for him to surrender issued by the
president of his college, Pope flew to Kansas City, Missouri, where he
turned himself in. He gave a 19-page confession to Kansas City police
and was extradited to Nebraska.
Pope was tried in 1965 in U.S. District Court in
Lincoln, Nebraska in front of a jury and in 1970 in state court by a
judge in Deuel County, Nebraska. Both times, he was found guilty and
sentenced to death. His federal sentence was upheld by the Eighth
Circuit in 1967, with Judge Harry Blackmun writing the court opinion.
His sentence was commuted to life in prison by the U.S. Supreme Court
in 1972 as part of the Furman v. Georgia package of cases that
determined that the death penalty, as then practiced, was
unconstitutional. As of 2011, Pope remains in federal prison in El
Reno, Oklahoma. If he is ever granted federal parole, he will begin
serving three life sentences in Nebraska.
From 1978 to 1983, while incarcerated, Pope was
married to a college girlfriend, Ramona Lowe.
372 F.2d 710
United States Court of Appeals
Duane Earl Pope, Appellant,
United States of America, Appellee
Feb. 13, 1967, Rehearing Denied March 14, 1967
The defense on this appeal concedes that shortly before noon on Friday,
June 4, 1965, Duane Earl Pope, when armed with a gun, robbed the
Farmers State Bank at Big Springs, Nebraska, a federally insured
institution, of $1,598, and, in the course of that robbery, shot and
killed three employees of the bank and seriously wounded a fourth.
A 6-count indictment was returned on June 22 charging Pope with
violations of the bank robbery statute, 18 U.S.C. 2113(a), (b), (d),
and (e). He entered a plea of not guilty. The trial consumed most of
the month of November 1965. After deliberating for two days the jury
convicted Pope on all six counts. The verdict on the last three counts,
which charged the killing of the respective bank employees, directed,
as 2113(e) permits, that the defendant be punished by death. Judge Van
Pelt imposed concurrent sentences of 20, 10 and 25 years, respectively,
on the first three counts, and a sentence of death on each of the last
three counts. This court stayed execution of the death sentences
The evidence. There is no conflict as to the basic facts. Many of them
were conceded by the defense's Judicial Admission filed just prior to
Duane, at the time of the offense, was 22 years of age. He had
graduated the preceding Sunday from McPherson College, a
denominational school at McPherson, Kansas. He was one of eight
children born of farm parents. He attended elementary and high school
in Roxbury. He led the normal life of a farm boy. He was an ordinary
student and perhaps less of a disciplinary problem then the average
boy. He was very active in both the athletic and extracurricular
programs of his high school. He engaged in football and basketball for
four years and in track and baseball for three. He participated in
band, glee club, chorus and dramatice. He was president of his senior
class. He was a member of the student council for two years. He was
captain of the basketball team and co-captain of the football team his
Duane was encouraged by the high school faculty to go to college. He
enrolled at nearby McPherson. He received student loan assistance
there and participated in a work program. At college he was an average
student and a fine athlete. He was placed on scholastic probation at
times but was able to emerge from it. In his last year he was
cocaptain of the football team and was named all-conference defensive
end by members of opposing teams.
There is evidence to the effect that at his father's work shop and at
the college laboratory he worked on silencers for guns; that he
designed and constructed at least two of these devices; that on May
15, 1965, he purchased a revolver to which he affixed one of the
silencers; that he tested it in his father's barn and found it not to
be effective; that on May 27, with a down payment he purchased a .22
Ruger automatic pistol; that he welded a coupling to this gun so that
a silencer could be attached to it; that he described this coupling as
something else to his father and an instructor; and that he made a
breast plate out of a tractor blade.
On Wednesday, June 2, following his graduation, Duane was at home. His
parents were there. He went upstairs and dropped a rifle out the
window and then went outside, picked it up, and put it in his 1939
Buick. He had already placed the Ruger and the silencer in the
automobile. He borrowed $50 from his father, told his parents that he
was going to Oklahoma to look for work, and departed. He drove north
some 30 miles to Salina, Kansas, where he registered in his own name
at a motel. The next morning he rented a 1965 Chevrolet from the Hertz
Agency and eventually drove it to Ogallala, Nebraska, where he
registered in his own name at a motel. That evening, after dark, he
drove the few miles to Big Springs, rode around the bank there, and
He arose early the next morning, placed the gun in his brief case, and
drove as far as Brule on the way to Big Springs. There he turned off
the highway and checked a back road south of Brule which he used after
the robbery. While on this road he removed the automobile's license
Duane then drove to Big Springs, and went by the Farmers State Bank.
He passed it slowly a second time, noticing that customers were there.
He approached it again shortly after eleven a.m. This time only
employees were inside. He parked by the bank, took his brief case
containing the Ruger and the affixed silencer, and entered. He
inquired of Andreas Kjeldgaard, the president, about a land
development loan. Mr. Kjeldgaard told him that the bank did not make a
loan of that kind but went to get a telephone book to find the number
of another area bank which might make the loan. Duane came around the
end of the counter into the employees' area, drew out the gun, and
told Mr. Kjeldgaard to put the bank's money in the brief case.
Employee Franklin Kjeldgaard, the 25-year-old nephew of the president,
came to assist his uncle. They removed the money from the cash drawer
under the counter and put it in the brief case. Duane then ordered
employee Lois Ann Hothan to get money out of the vault. She entered
the vault, brought out some one dollar bills, and placed them in the
brief case. A fourth employee, Glen Hendrickson, was sitting at a
table while all this was happening.
Duane then ordered all four persons to lie on the floor face down. All
complied. He shot the elder Kjeldgaard in the back and at the rear of
the head. The gun jammed. He unjammed it and then shot each of the
other three in the back and again in the neck or head. Franklin
Kjeldgaard did not lose consciousness. He was able to see and hear
what took place. The other three died at the scene.
After Duane left the building, Franklin was able to sound a burglar
alarm. Franklin survived and testified at the trial.
When he left the bank Pope drove to the main highway and then took the
back road running south of Brule. He traveled southeast at high speed.
He unscrewed the silencer from the Ruger and threw it out the window
of the car. Farther on, he stopped the car, got out, and threw the gun
into a field. He continued traveling fast, hit a bump and punctured
his gas tank. He purchased gas at Wauneta and attempted to plug the
hole with a rag. The station attendant refused to accept his expired
credit card or his check and Pope drove off after giving a false
address. He later purchased gas for cash and put the license plate
back on the car. He eventually reached Salina and registered at the
same motel in his own name. He obtained his 1939 Buick. He went to bed
but at two a.m. he got up, returned the rented automobile to Hertz,
and then drove his own Buick to his parents' home. He did not go into
the house but left $150, together with a note, in the mail box. The
note advised his father that he was returning the $50 he had borrowed
and asked that he deposit the other $100 in the defendant's bank
He went on to Wichita where he abandoned the Buick. He bought a bus
ticket to Enid, Oklahoma, and then proceeded by bus to Oklahoma City,
by plane to El Paso, and by bus to San Diego where he arrived June 6.
He placed money and and another gun he was carrying in a storage
locker and went to Tiajuana, Mexico. He attended a bull fight. He
returned to San Diego and checked into a hotel under a false name. On
June 7 he bought a used car under another name. While purchasing the
car he saw a newspaper and read of the Big Springs robbery. His car
broke down. He took a bus to Las Vegas where he gambled and amused
himself until Thursday night, June 10, when he read in a newspaper a
message from the president of McPherson College appealing to him to
turn himself in. He decided to take this advice. On the morning of
June 11 he flew to Kansas City, Missouri, and checked into a hotel
under a false name. He telephoned the McPherson president and then the
Kansas City police.
At the trial teachers, staff and classmates of his high school and his
college years and businessmen and employers at Roxbury and McPherson
testified that Duane's conduct in their experience was exemplary. His
high school superintendent could not recall any problem of discipline
or behavior with respect to Duane. His Roxbury employer considered him
'the best man I ever hired'. His college football coach described him
as cooperative and as giving him 'the least trouble of anybody that I
had'. His harvest employer said that he did his work 'better than
anyone else'. His home town banker, from whom he had borrowed money,
described his attention to his credit responsibilities. The McPherson
buildings and grounds superintendent, under whom Pope had worked
during his college years, said he was 'the best of any of them'.
Except for parking tickets and one minor traffic violation, there is
no evidence that Duane Pope had ever been in difficulty with law
The defense's seven basic points on appeal concern: (1) two
confessions; (2) a court-ordered psychiatric examination; (3) the
selection of the jury, and, specifically, (a) the Nebraska selection
system, (b) the exclusion of persons with scruples against capital
punishment, and (c) the court's refusal to inquire as to political and
religious beliefs; (4) the limitation of evidence as to mitigation and
rehabilitation; (5) a refused instruction as to the jury's authority
not to impose the death penalty; (6) a refused instruction that a
finding of not guilty would result in hospitalization until cured; and
(7) instructions as to criminal responsibility.
1. The confessions.
Two written confessions were taken from Duane Pope at Kansas City and
were offered by the prosecution and received in evidence. The defense
claims that the trial court committed prejudicial error in denying its
motion to suppress these statements and in admitting them.
An initial word as to the content of the statements is appropriate. It
is fair to say, we think, that the great bulk of the confessions'
recitals is of no real significance, so far as proof of the case is
concerned, for the material was otherwise proved by the prosecution or
conceded by the defense's Judicial Admission and is not contested.
The first confession is one of six pages. It contains only narrative
matter, such as Pope's driving to Big Springs, the robbery, the
shootings, and his disposal of the weapon. None of this is probatively
unique in the record.
The second confession as one of nineteen pages and is much more
detailed than the first. While it, too, contains a great amount of
factual material which is otherwise proved, it does embrace recitals
as to purpose and motive. It mentions Pope's making the silencer 'to
reduce the noise when I fired' the gun. It says that Pope 'had been
thinking about using this gun in a robbery of the bank at Big Springs,
Nebraska'. It further states, 'My plan was to rob the bank and then
kill everyone in the bank so they would not be alive to identify me as
the robber'. It tells of Pope's arrival at Big Springs late in the
afternoon of June 3 after the bank was closed, 'so I did not rob the
bank that day as I had planned to do'. It recites that he shot the
four employees 'as I had planned to do to be sure they were killed so
that they would not be alive to identify me as the bank robber'.
It is therefore apparent that, from the defense side, the confessions
could be really critical only as to the expressions of planning and of
reasons for killing contained in the second statement. All the rest is
not contested. And even as to these possibly critical areas, we must
bear in mind that Pope took the stand and that defense psychiatrists
testified. Pope and these psychiatrists explained directly to the jury
what they felt about motivation. If, as claimed, the written
statements contain factual errors as to motive, the defense, through
this testimony by Pope himself and by his psychiatrists, possessed the
opportunity, and availed itself of it, to explain away these alleged
errors. Thus, any trial significance of the statements fades
considerably and prompts one to wonder why their introduction was felt
necessary or advisable. Nevertheless, we examine the facts as to the
taking of the two confessions.
Pope called the Kansas City police from his hotel room in that city in
mid-afternoon on Friday, June 11. He said that he understood he was
wanted for the robbery at Big Springs and that he wished to give
himself up. He gave the name of his hotel and the number of his room.
When the police arrived the door to his room was open. The officers
entered, found Pope seated, identified themselves, told Pope he was
under arrest, and asked him to stand. He did so and 'immediately
turned around and put his hands up on the wall of the room'. He was
searched and handcuffed. As the handcuffs were being placed, the
officers advised Pope that he did not have to make any statement; that
he had a right to counsel; and that if he did say anything it could be
used against him. Pope replied, 'I know about that stuff'. He was then
taken to the Kansas City police station to be turned over to the FBI.
He was never booked by the police.
Two agents of the FBI came immediately to headquarters. They
identified themselves. The defense brief states, 'It is agreed that
the defendant was warned about the Fifth Amendment and that he had a
right to consult a friend or an attorney before making any statement'.
Special Agent Harman testified that Pope said that he had surrendered
because he had read he was wanted for the robbery of the Big Springs
bank; that he asked Duane if he understood that three persons had been
killed in that robbery; that Pope acknowledged he did; that he asked
Pope if he realized that the person responsible for that robbery could
be given the death penalty; that Duane said he did; that he was asked
whether he was willing to make a statement; and that Pope said he was.
In the room at the time were two FBI agents and two Kansas City
detectives. Agent Harman reduced the interview to writing. The room
was not locked. During the interview persons opened the door. Pope was
offered cigarettes and coffee and his request for water was honored.
Agent Harman testified that when the statement of June 11 was written
he showed it to Pope and explained that it was his and not the agent's
statement, and that they read it together and out loud. At one time
Duane put his face in his hands. One correction was ordered by Pope.
He initialed it and each page. He wrote a final paragraph in his own
hand reciting, 'I have read the above six page statement and it is
true to the best of my knowledge and belief', and signed. The
statement acknowledges that it was made voluntarily to identified FBI
agents; that he had been advised he would not have to make a statement;
that any statement could be used against him in court; that he could
consult a friend or attorney before making a statement; and that if he
could not afford an attorney, one would be provided for him by the
court free of cost to him.
Pope was then taken before a United States commissioner who testified
that the defendant appeared to be 'alert and calm'. The commissioner
advised Pope that he had a right to a preliminary hearing and to
counsel but made no reference to providing counsel free of charge;
that he could not be compelled to testify; and that if he did it could
be used against him. The charge then pending was only for bank robbery.
When the commissioner asked the United States attorney for his
recommendation as to a bond, he was told in Pope's presence that three
people were killed during the robbery. Bond was set at $100,000. The
matter was continued pending the arrival of a certified copy of the
complaint and warrant.
The next day, Saturday, June 12, Harman and another agent again
interviewed Pope in the sheriff's office at the county jail. He was
advised that he did not have to make any statement; that if he did it
could be used against him; and that he could see a friend, relative or
attorney before talking to them. This interview was also reduced to
writing by Agent Harman. This second statement of June 12 also makes
the preliminary recitals about identification of the agents, the
possible use against him of any information he gave, the right to
consult a friend or an attorney before making a statement, the right
to a court-appointed attorney free of charge, and the absence of
threats or promises. The robbery, the shootings, the departure from
the bank, and the disposal of the silencer and gun are all described.
Pope again called for a number of corrections, initialed them, added a
closing paragraph, and signed. During this interview the agent went
out and brought back a gun which Pope identified. It was also
interrupted for Pope and the two agents to have lunch.
We are aware, of course, of the ever tightening standards being
promulgated with respect to the use of confessions in a criminal trial.
We are particularly aware of the reversal of a conviction in Escobedo
v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977
(1964), where a statement was obtained after general inquiry had
ceased and investigation had focused on the particular suspect in
custody, and where the suspect was denied access to his existent and
available counsel and had not been warned of his right to keep silent.
We are also aware of the reversal of convictions in Miranda v. State
of Arizona, and in two companion cases, 384 U.S. 436, 467-477, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), setting out current requirements for the
evidentiary use of confessions. And we are aware of what may be a
trend toward the elimination of all written confessions in criminal
Duane Pope's trial, however, took place in November 1965; the verdict
was returned December 3. The trial thus occurred after Escobedo but
before Miranda. As everyone knows by now, Escobedo and Miranda are not
retrospective in their application. Johnson v. State of New Jersey,
384 U.S. 719, 733-735, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Each
applies only to the case where the trial begins after the decision was
announced. Accordingly, Excobedo is applicable here but Miranda is not.
We are therefore primarily concerned with deprival of counsel rather
than failure to provide it.
It is at once obvious that the Pope facts fall far short of the
extreme facts of Escobedo. It is true that, as in Escobedo, inquiry
had focused upon Duane Pope but, in contrast to Escobedo, Pope had not
been refused an opportunity to consult with counsel and there was no
absence of advice as to his right to keep silent.
Pope voluntarily gave himself up in response to his college
president's broadcast appeal and telephone conversation. Pope's was
not a forced surrender. He traveled from Las Vegas to Kansas City for
this purpose and on his own initiative. He called the Kansas City
police and advised them of his whereabouts. Second, Pope concedes that
upon his being arrested and handcuffed the police advised him of his
basic rights. Third, his statement at the time of this arrest
demonstrated an awareness of these rights. Fourth, the FBI agents, at
the time of his being turned over to them by the Kansas City police,
advised Duane of his rights. He acknowledged to them an awareness of
the killings during the robbery and that the person responsible could
be given the death penalty. Fifth, the United States commissioner,
prior to the taking of the second statement, advised Duane that he
need not make a statement, that he had a right to counsel, and that
any statement could be used against him. Sixth, Duane was an adult and
a college graduate and was not a person of subnormal intelligence.
Seventh, there is not the slightest intimation of abuse or undue
pressure by the police or the FBI.
The trial court's finding that both confessions were voluntarily
given thus has ample support in the record. Indeed, the record
contains little, if anything, which would support a finding of
involuntariness. Even under Miranda's particular 'heavy burden'
imposed on the government to demonstrate a knowing and intelligent
waiver, p. 475 of 384 U.S., 86 S.Ct. 1602, that burden could be said
to have been met here.1
We are readily satisfied, however, that the strict but lesser
standards of Escobedo and Johnson v. Zerbst, 304 U.S. 458, 464, 58
S.Ct. 1019, 82 L.Ed. 1461 (1938), were clearly met.
We therefore hold that the record adequately supports the trial
court's conclusion that the statements in question were voluntarily
given by Duane Pope after he had been properly advised of his rights.
Their introduction in evidence at the trial was not error. See
Golliher v. United States, 362 F.2d 594, 598-599 (8 Cir. 1966).
II. The court-ordered psychiatric examination of Pope.
When defense counsel were promptly appointed by the federal court in
Nebraska they moved for a continuance of the arraignment. This motion
was granted and arraignment took place in July. Pope pleaded not
guilty to all six counts of the indictment.
On the day of the arraignment the defense moved for the issuance of
subpoenas pursuant to Rule 17(b), Fed.R.Crim.P., to two psychiatrists
and a psychologist. The defendant's supporting affidavit recited that
these witnesses would be expected to testify that the defendant on
June 4, 1965, 'did not have the capacity to control his behavior and
to choose between alternate courses of action'. This motion was
granted and the subpoenas were issued, with payment of expert witness
fees to be made by the United States. The defense of insanity was thus
On August 27 the government responsively moved the court for an order
'permitting psychiatrists and psychologists selected by the plaintiff
to conduct examinations of the defendant as to his mental condition at
all times material to this action'. This motion was opposed by the
defense; the court denied it 'at present'. During the trial, after
Pope had taken the stand and the defense had offered expert testimony
as to Pope's mental condition, the motion was renewed. When so renewed
it was granted. Defense motions that it be furnished a transcript or
recording of the Government examination were denied. The court
recessed over the Thanksgiving weekend to allow time for the
examination. After the recess, the government examiners were called as
witnesses. One of them, Dr. Groves Blake Smith, testified:
'As this developed on the 27th of May when he got this interest in
guns there were periods apparently that he had had and these had been
raised during the period that he had been studying criminology as to
shooting people. This shooting people, however, was usually associated
with the fact that this was a part of robbery, and that the robbery
was the means to an end by which a person who committed a robbery
would gain financial benefits from it. This was one of the things that
I think was the means by which subconsciously he felt that this was
the means of getting money that he could not get-- borrow from his
father, that he could not get from loans, or that he didn't have the
ability to do sufficient work to build it up, but he did want to when
Melinda came back have the possession of money that would allow him to
feel that he could provide for her in the way that he wanted to. Now,
this was, I think, a definite mechanism with the fact that he still
feels the depth of love for Melinda was the motivating factor for his
desire to get money together.'
Error is claimed to exist, first, in the court's requiring the
defendant to submit to this at all and, second, in the court's
refusing permission for a transcript of the examination. The claim on
this issue centers primarily in Dr. Smith's quoted testimony.
The defense asserts that no power exists in the court to order the
examination; that, as a result, government psychiatrists testified as
to Duane's motive for the crime, namely, that 'he did it for Melinda',
by 'relating admissions supposedly made by' the defendant; that this
is testimony 'in essence that the appellant did the killing because he
wanted money for Melinda'; that such inferences should, instead, have
been developed in cross-examination of Pope and 'not from a star
chamber proceeding'; that the Melinda motive was not evident from the
FBI testimony of from Pope's; that, contrarily, the whole of the
defense case 'was based on the fact that there was no ostensible or
rational motive for the crime, but only a motive based on an
unknowable, unconscious desire to kill'; that even when one is ordered
to testify under an immunity statute he does so in court and in the
presence of his counsel; that the only analogous procedure is that in
Rule 35, Fed.R.Civ.P., which changed pre-existing law and which has no
application to criminal cases; that that rule has no counterpart in
the Criminal Rules; that even under the 18 U.S.C. 4244 procedure for
determination of competency to stand trial, the statute proscribes the
use in evidence of any statement made by the accused in the course of
examination; that the motivation statement elicited in the government
examination and the one in the second confession constitute the only
evidence which established any rationale for the offense; that 'Neither
came from the appellant's lips', and 'both were suggested by other
persons who are authority figures'; and that Pope was compelled to
testify 'by hearsay at trial through the mouth of a hostile witness'.
We note initially that there is no contention here as to the
insufficiency of the evidence if the government's psychiatric
testimony is admissible. We also note that the defense position that
motive is suggested only by the second confession and by Dr. Smith's
testimony, may not be completely accurate. The defense's principal
contention, of course, is that Pope had absolutely no motive or reason
for the robbing and killing. Absence of motive is used by the defense
to substantiate its claim that Pope was indeed insane and thus not
criminally responsible. The defense suggests that the only explanation
for Pope's action is that he was suffering from the schizophrenic
reaction indicated by the defense psychiatrist-witnesses.
There is, however, some evidence of motivation in the testimony of
others. Kansas City police detective Harlow testified that during the
interrogation on June 11 Pope said, 'I done it because I was in debt'
and that the debt was 'around $1300'. Police detective Smith testified
that among Pope's personal effects there was a photograph which Duane
described as that of his fiancee. FBI agent Harman testified that Pope
stated that he needed money because of his substantial debts, his
desire to go into farming and his desire to get married. On the other
hand, the defense introduced evidence that the defendant's total
indebtedness was about $900; that Pope was prompt in settling his
debts; that the amount of his debts in June 1965 was not unusual for
him; and that it was less than his debts had been at other times. The
defense contends that these debts were not bothering the defendant;
that he had no such pressing need for money as would prompt him to rob
a bank; that his only reason for going to the bank was to kill as the
result of a schizophrenic breakdown; and that the robbery was
In rebuttal the government presented Gerald Johnson, who knew Pope
while he worked during the 1964 harvest season in the Big Springs,
Nebraska, area. Johnson testified that he had a conversation with Pope
and another person while they were sitting on a curb one day in Big
Springs; that the conversation was about the details of a bank robbery
there six or seven years before when robbers stole about $15000; and
that Pope started the conversation by asking if the bank had ever been
There are, thus, intimations of motive apart from the second
confession and Dr. Smith's testimony.
So far as counsel and we have been able to ascertain, there is no
federal case precisely in point in this area. We note, however, that
in the habeas corpus case of Early v. Tinsley, 286 F.2d 1, 3 (10 Cir.
1960), cert. denied 365 U.S. 830, 81 S.Ct. 717, 5 L.Ed.2d 708, it was
held that a pre-arraignment psychiatric examination by a state 'did
not work a denial of due process or amount to self-incrimination'. See,
also, Fouquette v. Bernard, 198 F.2d 860, 861 (9 Cir. 1952).
It is true, as the defense suggests, that prior to the adoption of
Civil Rule 35 in 1938, a divided Supreme Court held that at common law
a federal court possessed no power in a civil case to order a
plaintiff to submit to a pre-trial physical examination. Union Pac. R.
v. Botsford, 141 U.S. 250, 257, 11 S.Ct. 1000, 35 L.Ed. 734 (1891).
The result was otherwise in a diversity case where an authorizing
state statute existed. Camden & Suburban Ry. v. Stetson, 177 U.S. 172,
20 S.Ct. 617, 44 L.Ed. 721 (1900). And the federal rule, since it was
adopted, has been upheld on a procedural-versus-substantive approach,
although only by a 5 to 4 vote, Sibbach v. Wilson & Co., 312 U.S. 1,
61 S.Ct. 422, 89 L.Ed. 479 (1941), and against constitutional attack,
Schlagenhauf v. Holder, 379 U.S. 104, 114, 85 S.Ct. 234, 13 L.Ed.2d
We recognize, too, as the defense also urges, that it has been held
1. A defendant's refusal to cooperate with a statutorily authorized
psychiatric examination does not disentitle him from asserting a
statutorily recognized special plea of not guilty by reason of
insanity. French v. District Court, 153 Colo. 10, 384 P.2d 268 (1963).
2. Evidence of a military defendant's refusal to submit to a
psychiatric examination is inadmissible. United States v. Kemp, 13
U.S.C.M.A. 89, 32 C.M.R. 89 (1962).
3. Where the state is permitted by court order to have a psychiatric
examination made of the defendant, the presence of a defense expert
would be in order, and if the presence of defense counsel is not
permitted, 'consideration may be given to the feasibility of
permitting such devices as recording instruments or the like to be
utilized at the psychiatric interview'. State v. Whitlow, 45 N.J. 3,
210 A.2d 763, 775-776 (1965). See Dziwanoski v. Ocean Carriers Corp.,
26 F.R.D. 595 (D.Md.1960), and In re Spencer, 63 Cal.2d 400, 46
Cal.Rptr. 753, 406 P.2d 33, 42 (1965).
4. In the absence of a statute a state court has no power to order a
psychiatric examination of the defendant and to do so may be a
violation of the Fifth Amendment. State v. Olson, 274 Minn. 225, 143
N.W.2d 69 (1966).
But these authorities, even if we were to accept them at face value,
do not provide the answer for the facts of the present appeal.
Insanity is the asserted defense here. Pope himself had taken the
stand and had testified as to his lack of motivation, his urge to kill,
and other aspects of his behavior which conceivably were pertinent to
his defense. The defense had also presented the testimony of one of
its psychiatrists and its psychologist covering their examination of
Duane Pope and their opinion as to his schizophrenic state and his
competency at the time of the robbery. Until all this had taken place
before the jury, the trial court meticulously refrained from granting
the government's request for an independent examination of the
defendant. When, however, this defense evidence came forth from the
witness stand, the issue of insanity thereby progressed beyond the
indicated or suggested stage and was present in full force and as the
primary issue of the case. Whether one frames his approach in terms of
waiver or of fundamental fairness buttressed with appropriate
protective instructions, see State v. Whitlow, supra, we fail to
perceive any constitutional violation or prejudicial error in what the
trial court did here. Certainly, the criminal trial is still a search
for truth subject, of course, to constitutional guaranties. It would
be a strange situation, indeed, if, first, the government is to be
compelled to afford the defense ample psychiatric service and evidence
at government expense and, second, if the government is to have the
burden of proof, as it does with the competency issue in the case,
Davis v. United States, 160 U.S. 469, 486, 488, 16 S.Ct. 353, 40 L.Ed.
499 (1895), and yet it is to be denied the opportunity to have its own
corresponding and verifying examination, a step which perhaps is the
most trustworthy means of attempting to meet that burden. Yet that is
precisely what the defense claims is appropriate here.
While we have recognized that expert medical opinion may not always be
an essential on the government side of a competency issue, see Dusky
v. United States, 295 F.2d 743, 754-758 (8 Cir., 1961), cert. denied
368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536; Kaufman v. United States,
350 F.2d 408, 414 (8 Cir. 1965), cert. denied 383 U.S. 951, 86 S.Ct.
1211, 16 L.Ed.2d 212 it is certainly advisable and to be encouraged as
an important factor in the ascertainment of the truth. The New Jersey
court phrased it well in State v. Whitlow, supra, p. 770 of 210 A.2d:
'An accused who asserts lack of criminal guilt because of insanity and
who fully cooperates with psychiatrists engaged by him for examination
purposes, answering all questions put to him including those relating
to the crime itself, ought not to be allowed to frustrate a similar
comprehensive examination by the State by asserting the bar against
self-incrimination. He ought not to be able to advance the claim and
then make the rules for determination of the claim.'
Pope did cooperate with the government examiners as well as with his
own and did not stand mute or only partially comply.
We also observe in passing that Dr. Smith's testimony here strikes us
as not being merely a recital of what Pope said his motive was. There
is, thus, no third party hearsay presentation by the doctor of that
motive as a fact. Instead, what we have is Dr. Smith's considered
opinion, drawn from his examination, as to why Duane did what he did.
This is Smith's opinion, not Pope's compelled self-incriminatory
We recognize that the Supreme Court in its recent blood alcohol case,
Schmerber v. State of California, 384 U.S. 757, 761, 765, 86 S.Ct.
1826, 1830, 16 L.Ed.2d 908 (1966), emphasized the distinction between
the taking of a blood sample without the subject's consent, under the
circumstances there present, and 'evidence of a testimonial or
communicative nature', and that there were four votes in dissent. But
that was a case of non-consent; it did not concern a totally
exonerating issue advanced by the defense itself and presented by the
testimony of the defendant personally and if his own examining experts.
We therefore specifically hold that by raising the issue of insanity,
by submitting to psychiatric and psychologic examination by his own
examiners, and by presenting evidence as to mental incompetency from
the lips of the defendant and those examiners, the defense raised that
issue for all purposes and that the government was appropriately
granted leave to have the defendant examined by experts of its choice
and to present their opinions in evidence. We further hold that Dr.
Smith's testimony was opinion evidence and not hearsay and was
What we have said applies to the additional and subordinate suggestion
by the defense that a transcript of the government's examination
should have been made and supplied to it. See State v. Snyder, 180 Neb.
787, 146 N.W.2d 67, 68 (1966); In re Spencer, supra, p. 761 of 46
Cal.Rptr., p. 41 of 406 P.2d; Whitfield v. Superior Court, Cal.App.,
54 Cal.Rptr. 505, (Cal.Dist.Ct.App.1966).
III. The selection of the jury.
Under attack here, on Sixth Amendment 'impartial jury' grounds, are
(a) the Nebraska suggester, or key man, system of petit jury selection;
(b) the trial court's exclusion upon voir dire of persons having
conscientious objections to capital punishment, and (c) the court's
refusal upon voir dire to inquire into the political and religious
beliefs of the jurors.
A. The suggester system.
The immediate answer to this aspect of the defense attack is that
one is compelled to conclude that the point was neither timely nor
appropriately raised in the trial court. Although there were pretrial
motions to suppress evidence and, as our subsequent discussion
indicates, for non-exclusion of persons having scruples about capital
punishment, there was no formal challenge to the entire array or
anything in the nature of a motion to quash based upon an improper
selective process. Trial was set for November 1. The entire day was
occupied on voir dire. Only at the very end of the day, after 49
jurors and 4 alternates had been selected, and after the jury was
excused for the night, was a general objection orally made.2
Selection of the last 3 jurors resumed the next day. No offer of proof
as to panel selection was made and no opportunity was afforded the
government to refute the contentions now being advanced.
Under these circumstances, the objection came too late and in an
improper manner. Frazier v. United States, 335 U.S. 497, 501-503, 69
S.Ct. 201, 93 L.Ed. 187 (1948), is conclusive on this point. We would
be fully warranted in holding that the issue is not before us.
Nevertheless, because the issue is strenuously urged on appeal, and
because this is a capital case, we comment on the issue before leaving
it. With the point not raised below, the record contains nothing about
the Nebraska system of petit jury selection. The defense would supply
this lack by exhibits attached to its appellate brief. This material
consists of: (1) The January 1961 order entered by the two active
federal judges for the District of Nebraska providing for the
selection of petit jurors for trials at Lincoln from eleven area
counties, as prescribed by 28 U.S.C. 1865(a). (2) The form letter sent
by the clerk to suggesters. This letter listed the statutory
requirements for jury service prescribed by 28 U.S.C. 1861, and stated:
'The need is for people, selected without regard to race, color, sex,
creed, or politics, who are fair-minded, of good character, and who
possess integrity, sound judgment, and a sense of responsibility. This
does not mean that only persons of wide public recognition or high
estate are wanted. These qualities of good citizenship are found among
the unheralded just as often as among the prominent.'
(3) A form with spaces for the name, address and occupation of each
person proposed. (4) The form letter sent by the Clerk to the prospect
requesting completion of an accompanying questionnaire. (5) The
questionnaire itself calling for information as to the stated
statutory qualifications, active military service, membership in a
voluntary fire or police department, public office held, and prior
jury service. This form as now employed, is not dissimilar to the
example in the 1960 Report of the Judicial Conference Committee set
forth at 26 F.R.D. 409, 507-508. (6) A letter dated April 25, 1966,
from the clerk to Mr. Rudolph, defense counsel transmitting these
items. This letter recited that the persons listed by the suggesters
are not automatically accepted as jurors; that they are only a source
of names; that the questionnaires are examined and, if necessary,
additional information is obtained; that 'no deviation (was) made in
the Pope case from our usual practice in making selection of jurors';
and that the jurors for the Pope case were actually drawn in March
1965, a date prior to the crime. The letter, however, also contains
the following sentence:
'In 'Suggesters' we look for persons who themselves are possessed of
all the qualifications necessary for excellent service as jurors but
who, in addition thereto, enjoy a wider acquaintanceship with persons
residing in their respective communities than might be expected of the
We note, initially, that no question of race is involved in this point.
In Beatrice Foods Co. v. United States, 312 F.2d 29, 33-37 (8 Cir.
1963), cert. denied 373 U.S. 904, 83 S.Ct. 1289, 10 L.Ed.2d 199, we
had occasion to pass upon the Nebraska suggester system so far as it
related to the selection of a grand jury. There, however, a specific
pretrial and even pre-pleading challenge had been made and evidence as
to the system had been introduced. We observed there, as we may
properly observe here, that the attack was not based on the ground
that any particular person on the jury was not qualified. But we also
observed that Congress has prescribed no particular method of jury
selection; that the method rests largely in the sound discretion of
the trial court and its officers under the guidance of the pertinent
statutes; that there is a presumption that the jury officials have
discharged their duties properly; and that when the defense claims the
existence of a fatal flaw in the selection process, it has the burden
of overcoming that presumption. We held that the sponsor system is not
in itself an invalidating factor, citing Walker v. United States,
93 F.2d 383, 391 (8 Cir. 1937),
cert. denied 303 U.S. 644, 58 S.Ct. 642, 82 L.Ed. 1103, and we pointed
out that a sponsor's recommendation was not the sole feature of the
selection process in Nebraska. See Scales v. United States, 367 U.S.
203, 259, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), affirming, on this
point, 260 F.2d 21, 45 (4 Cir. 1958); United States v. Hoffa, 349 F.2d
20, 29-33 (6 Cir. 1965), cert. granted as to other issues, 382 U.S.
1024, 86 S.Ct. 645, 15 L.Ed.2d 538 and affirmed, 382 U.S. 1024, 86
S.Ct. 645, 15 L.Ed.2d 538 (1966).
We also noted in Beatrice that no claim was there made that the jury
was not representative of the community in that an eligible group had
been excluded in its selection. The defense in the present case
attempts to differentiate by asserting that groups were eliminated,
namely, the academic community of the University of Nebraska, and
younger and more transient people. It is argued that 'in a murder
insanity case it is accepted by experienced trial attorneys that older
persons and persons who have lived for a long time in one community
are less likely to accept an insanity defense than younger persons and
persons who have lived in several localities'; that persons connected
with a university move more often and are not well known in the
community; that such persons should be represented in the venire; that
the longtime residents are not the whole community; and that the views
of older persons and of longtime residents toward mental illness and
toward capital punishment are not the community attitude.
But proof of all this is totally lacking. Further, we share the trial
court's skepticism about the accuracy of the defense statement as to
psychiatric testimony and younger people. We also note that at least
one juror on the panel was the widow of a professor of engineering at
the University and that the panel contained many persons who possessed
college degrees or who had attended college for one or more years.
As we have noted, the burden of proof is on the defense as to this
feature of its attack on jury selection. That burden is not met by
generalizations, unsupported by specific proof, as to attitudes of age
and other groups toward mental illness, psychiatric testimony, and
We suspect that the source of much of the defense suspicion here lies
in the respective paragraphs quoted from the clerk's form letter to
suggesters and from the clerk's letter of April 25, 1966, to defense
counsel. Despite the former's references to persons of 'good character,
and who possess integrity, sound judgment, and a sense of
responsibility', we certainly cannot hold on this record, as the
defense argues, that the suggester system 'may result in a jury biased'
toward the very kind of people so described. The paragraph in the
other letter is directed to the sponsor, not the juror whom he
The defense urges upon us Rabinowitz v. United States, 366 F.2d 34 (5
Cir. 1966 en banc). We are frank to say that a careful reading of the
several opinions filed in that case affords us little effective
assistance in resolving the issues presently before us. The opinions
reveal a sharply divided court, with Judge Brown, although fully
concurring in the result, noting, p. 72, that he joins the bare
majority 'In order to avoid a 4-to-4 deadlock', and that, 'having so
declared, I am not at all certain just what is decided'. That case, as
this one does not, pivoted precisely on the race issue and civil
rights, and, p. 37, 'the question of whether the method by which the
jury list was compiled resulted in the impermissible exclusion of
Negroes'. The result was a condemnation of the Georgia system in its
specific operation. Further, the government itself in Rabinowitz
conceded that the jury lists were inadequate. Judges Bell, Gewin and
Coleman concurred partially in the result simply because the
prosecution recommended new trials.
We, of course, do not express disagreement with Rabinowitz on its
facts. The majority opinion there does not hold that a suggester
system is per se inadequate. Consequently, we do not regard Rabinowitz
as authority for a conclusion in our present case that the Nebraska
system, in its operation and as applied to the selection of Duane
Pope's jury, violated either constitutional principles or federal
statutes. As already has been noted, the defense argument here centers
in a claim that the Nebraska system operates to exclude the younger
person, the member of the university community, the more transcient
individual, and the one possessed of bias toward capital punishment.
The last factor we discuss in greater detail in the next subsection.
The others, it seems to us, as we have said, rest on theoretical
considerations and assumptions and fail for lack of proof.
B. Conscientious objection to capital punishment.
The trial judge on voir dire excused those persons who confessed
having scruples against capital punishment and who answered
affirmatively when asked whether this 'would prevent you from imposing
the death penalty if you conscientiously felt that such a verdict was
proper under the law and under the evidence as you understood it'. The
defense suggests that this leaves only those who 'believe in capital
punishment'; that such persons are more likely to convict and to
impose harsher punishment, when they have a choice, as they do under
18 U.S.C. 2113(e), and are less likely to accept a defense of insanity;
and that conscientious objectors should be subject to elimination only
by the government's exercise of peremptory challenges. Much of this
argument seems to emanate from Oberer, Jury Selection, the Death
Penalty, and Fair Trial, published in The Nation, April 6, 1964, and
republished in 71 Case and Comment, No. 4 (1966). In addition, the
defense supported its unsuccessful pretrial 'Motion to restrict to
peremptory challenges the United States attorney's challenges in voir
dire of persons having scruples against capital punishment' with the
citation of two studies, namely, Zeisel, Some Insights Into the
Operation of Criminal Juries (confidential first draft, November 1957,
unpublished), and Wilson, Belief in Capital Punishment and Jury
Performance (apparently also unpublished). The defense also argues
that, because its offer to produce the authors of those studies for
cross-examination was refused, the authors' 'findings', for purposes
of the appeal, must be accepted.
We think that this does not at all follow. Despite this case's
character and an amount of notoriety, the record does not indicate
that there was any great difficulty or consumption of an inordinate
amount of time in selecting the jury. Under Rule 24(b), Fed.R.Crim.P.,
each side possessed 20 peremptory challenges plus one for the four
alternates in the panel. Consequently, the panel contained 52 plus the
four alternates. Under the careful guidance of an experienced and able
trial judge the selection of the final jury of 12 and two alternates
was completed in two average length days. As we read the record, 27
persons were excused for cause. Of these, only 10 were dismissed
because of scruples against capital punishment. Others were asked to
stand aside because of acquaintanceship, general bias, bias due to
publicity, or other reasons. Few, if any at all, can be suspected fo
using a claim of bias as an excuse not to serve. We get no impression
that this was a 'blue ribbon jury'. See Fay v. People of State of New
York, 332 U.S. 261, 267-268, 270, 287-289, 67 S.Ct. 1613, 91 L.Ed.
We also note that, on the other hand, among those excused by the trial
court were three persons who indicated a tendency toward insistence on
capital punishment, apart from other evidence, for a defendant who
would admit a bank robbery accompanied by a killing. Thus we have a
purposeful and successful effort by the trial judge to obtain persons
who were not prejudiced either for or against capital punishment. This
was a search for neutral jurors who would follow the court's
instructions. It is not demonstrated to us that this attempt was
unsuccessful or that, as the defense appears to assume, the panel was
left with only those persons who 'believe in capital punishment'. The
defense position comes down to a demand, not for an impartial jury
which is neutral, but for something quite different, namely, a jury
which includes persons who are prejudiced against-- and, also,
possibly for-- capital punishment.
We are also not persuaded by the argument that the trial court's
exclusion of these persons served improperly to produce a panel which
was something less than representative of the community. In a narrow
sense this might be said but one could say the same thing in the same
sense when a court very properly asks those persons to step aside who
are personally acquainted with counsel for the prosecution, or who
cannot read, or who cannot understand the English language. To that
extent the panel is always a little less than representative of the
community as a whole. But this exclusion does not produce an unfair
jury or an illegally unrepresentative one or one which is not
impartial in the Sixth Amendment sense. See 48 A.L.R.2d 560, 581-84
All the defense arguments have been completely and sweepingly answered,
we feel, in the opinion of Judge Prettyman in Turberville v. United
States, 112 U.S.App.D.C. 400, 303 F.2d 411, 418-421 (1962), cert.
denied 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813 and in the opinion
of Judge Hincks in United States v. Puff, 211 F.2d 171, 180-186 (2
Cir. 1954), cert. denied 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106. It
is well pointed out, in either or both of those opinions, that 'The
point at which an accused is entitled to a fair cross-section of the
community is when the names are put in the box from which the panels
are drawn'; that the thesis that persons who are not opposed to
capital punishment are psychologically inclined against criminals, and
thus are not impartial, has not been judicially recognized; that 'Being
not opposed to capital punishment is not synonymous with favoring it';
that persons 'may be completely without a controlling conviction one
way or the other on either subject'; and that if a jury is to include
persons with scruples against capital punishment, it ought also to
include those with bias in favor of the death penalty, yet this would
produce a balanced, rather than an impartial jury.
We are in accord with the reasoning and the holdings in Turberville
and in Puff. See Manuel v. United States, 254 F. 272, 274 (8 Cir.
1918); Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 43,
We find nothing whatsoever in Glasser v. United States, 315 U.S. 60,
62 S.Ct. 457, 86 L.Ed. 680 (1942), Thiel v. Southern Pac. Co., 328 U.S.
217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), and Ballard v. United States,
329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946), which compels or
indicates a contrary conclusion.
C. Political and religious beliefs.
Among the questions which the defense asked the court to submit to
the venire, and which were refused, were ones relating to church
affiliation, the John Birch Society, and public question attitudes.4
As to these, the defense urges:
'The reason the questions were asked again related to the issues in
the case, i.e. insanity and capital punishment. The appellant believed
that persons sympathetic to the John Birch Society would be more
punitive than the general public, and that persons who belonged to
religions that emphasize free will would be less willing to accept
psychiatric testimony that is Freudian and based on a philosophic view
of determinism. Whether such views are correct is not the issue. * * *
Peremptory challenges for such reasons are proper. To prevent the
appellant from obtaining such information is to prevent the peremptory
The defense cites Swain v. State of Alabama, 380 U.S. 202, 218-221, 85
S.Ct. 824, 836, 13 L.Ed.2d 759 (1965), and Mr. Justice White's
comments there on the use and nature of the peremptory challenge,
'It is no less frequently exercised on grounds normally thought
irrelevant to legal proceedings or official action, namely, the race,
religion, nationality, occupation or affiliations of people summoned
for jury duty. * * * It is well known that these factors are widely
explored during the voir dire, by both prosecutor and accused, * * *
This Court has held that the fairness of trial by jury requires no
less. * * * Hence veniremen are not always judged solely as
individuals for the purpose of exercising peremptory challenges.
Rather they are challenged in light of the limited knowledge counsel
has of them, which may include their group affiliations, in the
context of the case to be tried',
and Kiernan v. Van Schaik, 347 F.2d 775, 781 (3 Cir. 1965), where it
was said that 'at least the visible ties which generally bind men to
one side of a cause are clearly within the limited range of
appropriate interrogation on voir dire'. The argument then is that
religious and group affiliations are necessarily proper subjects of
We ourselves know of at least two Supreme Court cases where religious
inquiry was recognized or approved: Aldridge v. United States, 283 U.S.
308, 313, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); Miles v. United States,
103 U.S. 304, 309-311, 26 L.Ed. 481 (1881).
But there can be no fixed rule as to all this. Denominational
affiliation or group membership may indeed possess sufficient
significance to call for voir dire inquiry in a given case. In another
it may not. See Yarborough v. United States, 230 F.2d 56, 63 (4 Cir.
1956), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487. The
key in the Swain quotation is the phrase 'in the context of the case
to be tried'.
The matter, thus, is one appropriately fitted for the discretion of
the trial court. The Third Circuit, in Kiernan, supra, p. 778 of 347
F.2d, described this as 'a wide discretion' which, however, is 'subject
to the essential demands of fairness'. Much the same thing was said in
United States v. Napoleone, 349 F.2d 350, 353 (3 Cir. 1965). In
Aldridge v. United States, supra, p. 310 of 283 U.S., p. 471 of 51
S.Ct., the Court said that the trial court 'had a broad discretion as
to the questions to be asked'. The issue comes down to a question of
abuse of discretion. Stephan v. Marlin Firearms Co., 353 F.2d 819, 822
(2 Cir. 1965), cert. denied 384 U.S. 959, 86 S.Ct. 1584, 16 L.Ed.2d
672. Certainly, Rule 24(a), Fed.R.Crim.P., contemplates no more.
We see no abuse here. While one might say that the trial court
permissively could have been a little freer in its inquiry into group
affiliations, we certainly ascertain nothing approaching prejudicial
error. As the cases recognize, there are practical limitations to voir
dire. If this were not so, delay and frustration would ensue and the
possibility of abuse would increase.
We specifically note the court's inquiry of each venireman as to
whether he entertained capital punishment scruples attributable to 'faith,
belief, religion, conscience, or otherwise', as well as to such
scriptural and ethical references as 'An eye for an eye and a tooth
for a tooth' and 'Those who live by the sword shall perish by the
sword'. These inquiries, of themselves, penetrated those very areas
which the defense, by its proffered questions, sought to search.
IV. The right to present evidence as to mitigation and rehabilitation.
Dr. J. M. McDonald, psychiatrist and expert witness for the government,
testified on cross-examination in response to the question, 'What type
of sickness is involved here?', that Pope had a schizoid personality.
He also said that 'he could benefit from psychiatric treatment'. The
next question was 'And what would be the nature of that treatment; I
mean what would it accomplish?' The government's objection to this 'as
outside of the issues of this lawsuit' was sustained. On the direct
examination of its own expert, Dr. Herbert C. Modlin, the defense
asked whether Duane needed medical treatment. The doctor answered, 'Yes,
I would say so, very definitely'. When the defense attempted to
continue this line of inquiry, a government objection was again
sustained. The defense then offered to prove by its witness that Pope
required institutional commitment and medical treatment probably for
at least seven years 'before there could be any reasonable hope of
being secure against another schizophrenic reaction'.
The court also refused permission to the defense to subpoena and
produce a letter written in July 1965 by the Deputy Attorney General
of the United States to the Chairman of the House Committee on the
District of Columbia stating 'We favor the abolition of the death
penalty' and recommending a comprehensive study.
All this, says the defense, is error and a violation of the
defendant's right of allocution before the sentencing body.
Allocution is prescribed by Rule 32(a), Fed.R.Crim.P.5
Its nature and importance are made evident by the several opinions in
Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670
(1961), and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d
417 (1962), although the Court in both those cases denied post-conviction
relief, and in Machibroda v. United States, 368 U.S. 487, 489, 82 S.Ct.
510, 7 L.Ed.2d 473 (1962). We have said ourselves that allocution in
the federal system is a substantial right and that 'failure to accord
it would perhaps entitle a defendant to have his sentencing
proceedings reversed through an appeal'. Moore v. United States, 329
F.2d 821, 822 (8 Cir. 1964), cert. denied 379 U.S. 858, 85 S.Ct. 114,
13 L.Ed.2d 61.
The difficulty, of course, centers in the language of 18 U.S.C.
2113(e) to the effect that the convicted defendant 'shall be
imprisoned not less than ten years, or punished by death if the
verdict of the jury shall so direct'. The obvious argument is that,
inasmuch as it lies within the power of the jury to impose the death
sentence, the jury's task involves more than the mere determination of
guilt or innocence and it is entitled to receive information as to
mitigation and rehabilitation.
We note initially that this record is not devoid of this very kind of
information. Both Dr. McDonald and Dr. Modlin, as our comments above
show, had testified of illness and of Duane's need for treatment, and
thereby had intimated at least the possibility of rehabilitation. And
the defense in its closing argument asserted that two psychiatrists
said 'that right now Duane needs medical treatment'.
But this question of the propriety and allowable extent of
allocutional information under this statute is not an easy one. The
question largely disappears when criminal procedure takes its
traditional course and punishment is imposed from the judge's bench
rather than in the jury room. And perhaps it holds less significance
when the statute provides that the extreme penalty follows
automatically, rather than permissively, upon determination of guilt.
The issue seems to suggest the possibility of the two-stage trial,
with the first stage devoted to the usual routine of ascertaining
innocence or guilt and with the second, if guilt is determined,
devoted to consequences.
The Second Circuit struggled with this problem in United States v.
Curry, 358 F.2d 904, 913-916 (2 Cir. 1966). The court held that under
all the circumstances of that case the trial court did not abuse its
discretion in conducting a unitary trial and, flatly, that the unitary
trial did not prejudice the defendant, 'particularly in light of the
fact that he never specifically requested the twostage trial'. Chief
Judge Lumbard went on to observe that historically there is no
authority for the power to direct a twostage trial under 2113(e); that
the Supreme Court has upheld statutes of this kind under the
assumption that they provide for a unitary trial; that, however, such
a trial 'can be highly unsatisfactory'; that some states by statute
now require the two-stage trial; that since the unitary trial poses
fundamental problems, 'we do not interpret the silence of Congress on
this question as precluding the trial judge from confining the first
presentation to the jury to the issue of guilt'; that, however, it
would be unwise to require the two-stage trial in every case under the
statute; that the divided trial may not always work to the defendant's
advantage; that it is best to leave this to the discretion of the
trial court; that if the defense feels it is under a disadvantage in a
unitary trial it should move for the severance of the issues of guilt
and sentence; that 2113(e) is constitutional; that under all the
circumstances it was in the court's discretion to reject the
unsupported assertion that unitary trial would force the defendant to
take the stand; and that for the future, where it is clear that the
defendant requests a two-stage trial, 'it would be preferable to grant
such a request'.
Judge Hays dissented. He stated that 'the course of enlightened and
efficient administration of the criminal law will best be served by
requiring a two-stage trial'; that there is 'scarcely any authority'
to support the majority's conclusion that this is to be left to the
discretion of the trial court; and that rational determination of
punishment requires that the sentencing authority have wide access to
information of a mitigating nature.
The problem also arose in Frady v. United States, 121 U.S.App.D.C. 78,
348 F.2d 84 (1965 en banc), cert. denied 382 U.S. 909, 86 S.Ct. 247,
15 L.Ed.2d 160. It was resolved by a 5-to-4 vote setting aside death
sentences with directions for the entry of new sentences of life
imprisonment. The court was concerned with a District of Columbia
statute which, upon conviction of first degree murder, called for
death 'unless the jury by unanimous vote recommends life imprisonment'.
Judge Fahy, speaking for a bare minority of four, would hold that the
convictions were proper but that the death sentences were wrongfully
imposed due to an erroneous instruction and inadequacy of the poll.
Because there were only two sentencing alternatives and because it was
not possible to reconvene the same jury, those four judges felt that
the appropriate solution was to direct the entry of life sentences as
'just under the circumstances', within the language of 28 U.S.C. 2106,
authorizing an appellate court to modify or set aside any judgment
brought before it for review 'or require such further proceedings to
be had as may be just under the circumstances'. See Coleman v. United
States, 123 U.S.App.D.C. 103, 357 F.2d 563, 572-573 (1965).
Judge McGowan, on procedural grounds, concurred in the result reached
by the four judges and thus effected a majority. He felt that the
situation would be best resolved by the two-stage trial; that there
was nothing indicative of a hostile attitude toward this on the part
of Congress; and that the court was free to prescribe that procedure
'as the one best fitted to effectuate the purpose of Congress in this
statute'. Judge Wright voted to reverse the convictions because of
insufficiency of evidence. He felt, too, that the defendants were not
afforded adequate opportunity to offer evidence in mitigation and that
the two-stage trial procedure would resolve this difficulty.
Judge Wilbur K. Miller and three others concurred in the affirmance of
the convictions but dissented from the setting aside of the death
sentences. He stated that there was no justification in statute or
case law for the majority's imposition of the life sentences; that the
court exercised the pardoning power in so doing; that there was no
majority opinion except as to the affirmance of the convictions; and
that there was an indication that the motivation behind three of the
majority 'is an ingrained personal antipathy to capital punishment'.
Judge Burger, who was one of the dissenters, also filed a separate
opinion, joined by his colleagues in dissent, with particular emphasis
as to the suggested two-stage trial. He felt that the statute itself
and its relevant history demonstrate that the traditional single trial
is what was intended, with the jury having a dual function on guilt
and on penalty, and that Congress' silence was not a license to judges
to change this long-established procedure at their convenience. He
then outlined, pp. 115-116 of 348 F.2d, the many questions which the
divided procedure would present and suggested 'the utter folly of
institution of such a system except after careful study of all its
ramifications' by the legislative body
It is evident from these decisions of the Second and District of
Columbia Circuits that we find ourselves, as to this issue, in a
developing area of the law. It is somewhat strange that, with several
other federal statutes also giving the jury the choice between capital
punishment and a lesser sentence, see 18 U.S.C. 1111, 1201 and 1992,
this issue has not surfaced earlier and been resolved sometime ago.
This may be due to an assumption on the part of court and counsel
alike that the unitary trial was the established procedure.
Frady and Curry, being both by split courts, provide us with something
less than assured precedent. Frady, of course, involves a local
statute. Curry centers on the trial court's discretion but takes leave
of the issue with the strong suggestion that in the future, upon
request, the preferable course is the two-stage trial. Judge Burger in
Frady presents an imposing list of emerging questions which seem best
resolved by legislative action only after careful study, rather than
by judicial experimentation necessarily based on personal inclination.
And we are not convinced that the District of Columbia Circuit's
reliance upon and use of 28 U.S.C.A. 2106, although somewhat appealing
and, if warranted, providing a convenient solution, is appropriate or
We note here, as Chief Judge Lumbard noted in Curry, that the
government introduced little or no evidence relevant to punishment (although
the defense asserts that the surviving victim's testimony as to his
condition so qualifies) and that at no time in the presentation of
evidence did it suggest the death penalty. The only references to this
in the entire trial were the court's inquiries on voir dire; that
prosecution's comment in its opening statement as to the jury's
obligation to determine penalty; the assistant United States
Attorney's final comments in the initial closing argument to the jury,
including, 'If he is guilty, and you so find, let the punishment fit
the crime'; the United States attorney's remark at the very end of the
final argument, 'The details of this crime certainly do not call for
less than the maximum penalty'; and the defense's own references to 'life
is at stake', 'facing the death penalty', 'something bad' and 'revenge'
in its closing argument.
Our situation is one where there was no formal request for a two-stage
trial, either before the trial began or at the close of the
government's case or on the post-trial motions. As we have pointed
out, despite the court's refusal to permit the defense to probe in
depth the psychiatrist-witnesses' comments about rehabilitation, it
was evident, from their references to Pope's illness and the probable
time required for hospitalization and treatment, that rehabilitation
might be possible or, if the extreme penalty was not imposed, that
commitment, by some means, was indicated. The jury also had the full
picture of the defendant's background, his prior behavior, and the
like. And the defense of insanity, with all its implications, is in
itself wholly mitigative and rehabilitative in nature. The jury
therefore was not without an appropriate measure of information.
We find ourselves about where the Second Circuit majority found itself
in Curry. We are not disposed to say that, despite the long accepted
unitary trial concept, the two-stage trial is not available at all. We
are not disposed to say taht a trial judge may not appropriately
exercise his discretion in this area. But we are also not disposed to
say that the trial court's failure to order sua sponte a two-stage
trial for Duane Pope was error or an abuse of discretion.
It may be that the two-stage trial can be appropriately developed and
made to serve a useful purpose under these statutes as they presently
exist. It may be that the better solution is for the statutes to be
revised so as to place the punishment power back in the hands of the
judge where it traditionally had rested. It may be that the ultimate
answer is legislation authorizing some narrow appellate review of
sentences in these extreme cases. There, however, are primarily
legislative matters for the Congress and not for the judiciary.
We conclude on this record that the defense was not deprived of all
opportunity to present information as to rehabilitation and mitigation;
that substantial evidence as to this was appropriately admitted; that
the trial court's refusal to permit further exploration in depth was
not improper; that the unitary trial was not error; and that nothing
approaching a deprival of constitutional due process has been
Our conclusion is fortified by the Supreme Court's very recent remarks
in Spencer v. State of Texas, 385 U.S. , 87 S.Ct. 648, 17 L.Ed.2d
(1967) about two-stage jury trial procedure. There, Mr. Justice Harlan,
author of the principal opinion, said, 'Two-part jury trials are rare
in our jurisprudence; they have never been compelled by this Court as
a matter of constitutional law, or even as a matter of federal
V. The refused instruction as to the jury's authority not to impose
the death penalty.
This requested instruction follows almost verbatim the very language
appearing in Mr. Justice Gray's opinion in Winston v. United States,
172 U.S. 303 at p. 313, 19 S.Ct. 212, 43 L.Ed. 456 (1899). The court's
refusal is claimed to be error.
The trial court, however, did not instruct contrarily to the request.
'You are instructed that your authority to punish or to not punish the
defendant by imposing a sentence of death, is unlimited. I have tried
to make it clear to you that the question of whether the defendant
should or should not be punished by death has been committed by law
solely to your discretion.'
What the defense insists upon is that the language should have been
expanded and detailed so that the jury knew it might range far and
wide and unlimitedly.
We have carefully read the court's charge in its entirety. While, of
course, the requested instruction might properly have been given, we
conclude that its omission was not error and that the jury was
adequately advised as to this feature of the case. By the charge the
court did give, the jury knew its responsibility and the broad avenues
open for its discussional and decisional judgment. It is not necessary
that the court meticulously spell out each and every factor which the
jury may consider. Its authority was stated to be 'unlimited'. That
means without limit and could not be more directly and simply
expressed. Andres v. United States, 333 U.S. 740, 742-743, 68 S.Ct.
880, 92 L.Ed. 1055 (1948), is authority and an example against the
VI. The refusal to instruct that a finding of not guilty results in
hospitalization until cured. The defense claims that the jury was
entitled to know what would happen to Pope in the event of acquittal.
Specifically, it requested instructions that, under 24 U.S.C. 211, he
would be certified to the Secretary of Health, Education and Welfare,
who may then order him confined to Saint Elizabeths Hospital in the
District of Columbia, or to the custody of the Attorney General until
his health is restored or suitable state arrangements are made. The
court, instead, instructed the jury:
'You have no right to take into consideration, in event you should
find him not guilty, whether defendant would be kept in custody and if
so for how long such custody would continue, or whether he would be
entitled to early or immediate freedom. As a matter of fact, the
matter should not even be discussed by you in determining the issue of
sanity or insanity. You are to determine only whether the defendant is
guilty or not guilty as charged. Speculation as to the possibility of
his being in custody, its place, or its duration, or the possibility
of his walking out of the courtroom a free man, if either or both of
such possibilities exist, should not enter into your determination of
guilt or innocence under the plea submitted.'
The defense would justify its position primarily upon the authority of
Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 728 (1957),
cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067, and Pollard
v. United States, 285 F.2d 81 (6 Cir. 1960). We, however, find no
error and see no reason why we should depart from the long-established
principle that, in the absence of some specific statutory provision, a
defendant's disposition is not a matter for the jury's concern. Lyles
had to do with a District of Columbia statute and a special plea of
not guilty by reason of insanity. And Pollard concerned an order, not
a jury instruction. In addition, the Sixth Circuit's intimation, in
Pollard and in its earlier opinion in the same case, supra, p. 464 of
282 F.2d, that 24 U.S.C. 211, with its provision for certification to
the Secretary and possible confinement in Saint Elizabeths Hospital,
is available to federal defendants outside the District of Columbia,
is not shared in other quarters. See Sauer v. United States, 241 F.2d
640, 651 (9 Cir. 1957), cert. denied 354 U.S. 940, 77 S.Ct. 1405, 1
L.Ed.2d 1539; United States v. Currens, 290 F.2d 751, 775-776 and 777
(3 Cir. 1961); United States v. Freeman, 357 F.2d 606, 625 (2 Cir.
1966); Pope v. United States, 298 F.2d 507, 509 (5 Cir. 1962); Powers
v. United States, 305 F.2d 157, 158 (10 Cir. 1962); Lynch v.
Overholser, 369 U.S. 705, 729-730, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962)
(dissenting opinion of Mr. Justice Clark); United States v. Roe, 213
F.Supp. 444, 455-456 (W.D.Mo.1963), and cases cited; 17 Op. Att'y
Gen'l 211 (1881); S. 3689 and S. 3573, introduced in the 89th Congress.
We, too, hope that this gap, if it exists, in the federal system may
soon be adequately remedied.
We should note that in its closing argument to the jury the defense
made what appears to be at least a collateral reference to Pope's
possible custody in the event of acquittal:
'I wonder if you might in your deliberations feel or think about some
concern about his custody if you find him not guilty. * * * I think
you can assume that if you do your duty as jurors * * * others will do
their duty in connection with Duane.'
Although permission for further comment about disposition had been
denied by the court before final argument, the defense itself thus
effected an implication. The court did the same in its instructions
when it said, 'Just as you will discharge your duty under the law and
the evidence you can assume that others will do the same as to any
matters for their consideration'. We may not assume that all this was
not apparent to the jury.
In any event, we need not attempt to pass upon the scope and
application of 211. We merely hold that the court's refusal to
instruct about hospitalization was not error and that justice does not
require the specifics, questionable at best, which the defense
VII. Instructions as to the defense of insanity.
As its final point the defense urges that the trial court's
instructions to the jury on criminal responsibility were not
understandable, were partially inapplicable to this defendant, and
were partially useless. The charge on this aspect of the case is too
long to reproduce here in its entirety but we set forth its critical
portion in the margin.6
It speaks for itself. Objections were made on the ground that the
instructions should have embraced what are called the Durham elements
or the Currens elements, both referred to below, or alternative
language proffered by the defense.
The defense argues that one of the reasons for what it sees as
continuing judicial support of the rule which emerged from M'Naghten's
Case, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843), is that it protects
the public; that the rule's purpose is to make it easier to convict;
that implicit in its approval is the understanding that it should not
be applied in capital cases; that the instruction given requires a
jury to convict and sentence to death a person psychiatrists for both
sides agree is sick; that the irresistible impulse refinement does not
at all assist the person who is partially successful in resisting his
sick desires; that M'Naghten 'allows acquittal only of persons really
not capable of standing trial'; that the jury here must have placed
great emphasis on the word 'impulse'; and that M'Naghten and
irresistible impulse should be rejected.
This, of course, as both sides recognizes, is not a new issue for this
court or, indeed, by now, for most American tribunals. Because,
however, criminal responsibility in the federal courts 'is a rule of
decision', Wion v. United States, 325 F.2d 420, 425 (10 Cir. 1963),
cert. denied 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309; United
States v. Freeman, 357 F.2d 606, 614 (2 Cir. 1966), it is not
inappropriate that, sitting en banc, we examine it once again.
We last fully considered the issue in Feguer v. United States, 302
F.2d 214, 242-245 (8 Cir. 1962), cert. denied 371 U.S. 872, 83 S.Ct.
123, 9 L.Ed.2d 110, a capital case. There we observed, as we had also
done earlier in Dusky v. United States, 295 F.2d 743, 759 (8 Cir.
1961), cert. denied 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536, the
1. This court, as nearly all others, heretofore has consistently and
specifically refused to follow the unembellished 'product of mental
disease or mental defect' standard, first enunciated in New Hampshire
a century ago, State v. Pike, 49 N.H. 399 (1870), and adopted for the
District of Columbia in Durham v. United States, 94 U.S.App.D.C. 228,
214 F.2d 862 (1954), and then so vigorously contested in Durham's
numerous progeny. Voss v. United States, 259 F.2d 699, 703 (8 Cir.
1958); Dusky v. United States, 271 F.2d 385, 394, 401 (8 Cir. 1959),
reversed on other grounds 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824;
Dusky v. United States, supra, p. 759 of 295 F.2d. We adhered to this
rejection in Feguer, p. 243 of 302 F.2d. See Carter v. United States,
332 F.2d 728, 729 (8 Cir. 1964), cert. denied 379 U.S. 841, 85 S.Ct.
79, 13 L.Ed.2d 47.
2. The origin history, application, and variations of M'Naghten have
been reviewed in detail adequately and at length in many places, as,
for example, Durham v. United States, supra, pp. 869-874 of 214 F.2d,
and United States v. Currens, 290 F.2d 751, 763-767 (3 Cir. 1961), (and
now United States v. Freeman, 357 F.2d 606, 615-622 (2 Cir. 1966)).
They need no further and repetitive recital by us.
3. The Supreme Court of the United States has approved charges
embracing M'Naghten and irresistible impulse (perhaps preferably to be
described in terms of uncontrollable acts) and certainly thus far has
not disapproved that approach to the problem of criminal
responsibility. Davis v. United States, 160 U.S. 469, 476-478, 16 S.Ct.
353, 40 L.Ed. 499 (1895); Davis v. United States, 165 U.S. 373, 378,
17 S.Ct. 360, 362, 41 L.Ed. 750 (1897), where the Court said that such
a charge 'was in no degree prejudicial to the rights of the defendant';
Hotema v. United States, 186 U.S. 413, p. 420, 22 S.Ct. 895, p. 898,
46 L.Ed. 1225 (1902), where the Court said, that the whole charge 'properly
laid down the law in regard to the responsibility of the defendant on
account of his alleged mental condition' and where the Court, pp. 418
and 416, p. 897 of 22 S.Ct., characterized as 'undoubtedly correct' a
charge which permitted excuse only if the degree of the imbalance 'must
have been sufficiently great to have controlled the will of the
accused'; and Matheson v. United States, 227 U.S. 540, 543, 33 S.Ct.
355, 57 L.Ed. 631 (1913), where the Court noted that the 'exact charge'
used in the Davis case was again emploued.7
See, also, Fisher v. United States, 328 U.S. 463, 467, 66 S.Ct. 1318,
90 L.Ed. 1382 (1946), and Leland v. State of Oregon, 343 U.S. 790,
800-801, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), where the Court held
that federal due process did not yet require a state to adopt an
irresistible impulse test of legal sanity in place of a right and
4. This court has been familiar with the various expressions on
criminal responsibility illustrated not only by M'Naghten, Pike,
Durham and Currens, but, as well, by State v. Jones, 50 N.H. 369
(1871), and Parsons v. State, 81 Ala. 577, 2 So. 854 (1887), and the
more recent Sauer v. United States, 241 F.2d 640 (9 Cir. 1957), cert
denied 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539 and Blocker v.
United States, 110 U.S.App.D.C. 41, 288 F.2d 853 at p. 857, (1961),
particularly Judge Burger's enlightening opinion, concurring in result,
(and now McDonald v. United States, 114 U.S.A.pp.D.C. 120, 312 F.2d
and United States v. Freeman, supra).
5. That in summary and conclusion.
'* * * We would hesitate to reverse a case where the trial court had
employed instructions on insanity which this court has heretofore
approved and henceforth we would be loath, indeed, to reverse where,
as here, the trial court has used instructions, whether based
theoretically on a M'Naghten variation or on the test set forth in the
Modern Penal Code proposed by the American Law Institute or on that
form revised as suggested by the Third Crucit in Currens, or whether
couched in still other language, if the charge appropriately embraces
and requires positive findings as to 3 necessary elements, namely, the
defendant's cognition, his volition, and his capacity to control his
behavior. If those 3 elements-- knowledge, will and choice-- are
emphasized in the court's charge as essential constituents of the
defendant's legal sanity, we suspect that the exact wording of the
charge and the actual name of the test are comparatively unimportant
and may well be little more than an indulgence in semantics. We think
this approach to be sound because it preserves and builds upon those
elements of M'Naghten and of irresistible impulse which are acceptable
in these days and yet modernizes tham in terms which a jury can grasp
Sitting now en banc, we have once again reviewed the many federal
opinions, some most scholarly and erudite, which concern this problem
and we are aware of the continually developing and assertedly
different approaches to it. We have endeavored, in the Appendix, to
set forth, as we see them, the other circuits' announced attitudes as
of the moment. As a full court we have gone through the same
decisional struggle experienced by our respective panels which sat in
Voss, the first Dusky, the second Dusky, and Feguer, and by the other
federal courts of appeals in the cases we cite. We still entertain a
deep suspicion that, despite the welter of legal, psychiatric, and
philosophic theory and verbiage, much of the legal problem is
basically semantic and engulfed in words, and that a practical
American jury in any given case (except, possibly, upon the McDonald-Durham
approach), will reach the same conclusion, whether it be instructed
along traditional M'Naghten and irresistible impulse lines, or upon
any of the approaches of Currens or Freeman or variations thereof.
Perhaps, as Judge Brown has suggested in dissent, 'we should quit
talking in terms of McNaghten, Davis, Durham, Howard, Parsons, or the
rest'. Carter v. United States, 325 F.2d 697, 708 (5 Cir. 1963), cert.
denied 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308. See, also, Judge
Griffin B. Bell in dissent in the same case, p. 707 of 325 F.2d.
So long as all relevant medical evidence is received, we see little or
no difference in the practical functioning of the standards of Feguer,
reaffirmed here, and the present state of the law in those circuits (District
of Columbia, Second, Third, and perhaps the Ninth and Tenth) which
have abandoned M'Naghten in its earliest and most rigid form and which
now use some formulation embracing cognition and volition.
We hold again, and we stress by repetition, that if the trial court
freely admits all evidence which appears to be relevant and if the
charge appropriately embraces and requires positive conclusions by the
jury as to the defendant's cognition, his volition, and his capacity
to control his behavior, and if these three elements of knowledge,
will and choice are emphasized in the charge as essential and critical
constituents of legal sanity, we shall usually regard the charge as
legally sufficient. And we also repeat what we said in Feguer, at p.
245 of 302 F.2d, and in the second Dusky, at p. 759 of 295 F.2d,
namely, that we think this approach is sound because it preserves and
builds upon those elements of M'Naghten and of lack of control which
are acceptable in the present day, and yet modernizes them in terms
which the jury can grasp and intelligently apply.
We think further that this approach does, indeed, take account of the
entire man and his mind as a whole; that it enables the jury to
consider all the relevant symptomatology; that it avoids undue
compartmentalization of the intellect; that it appropriately
recognizes the possibility of gradations in capacity; that it avoids
too rigid classification; and that it embraces terms which are
comprehensible to a lay jury and which enable it adequately to perform
its historical function in the criminal case.
The Davis charge, it has seemed to us, when
viewed and carefully read in its entirety, and the Supreme Court's
utterances in its Davis decisions, recognized these three elements
which we stress. See pp. 484-485 and 488 of 160 U.S. 16 S.Ct. 353.
However, it is fully apparent, from our language quoted from
Feguer and the second Dusky, that we do not read the Supreme Court
opinions as holding that M'Naghten and irresistible impulse is the
only permissible approach to criminal responsibility. Nowhere do
we detect such exclusiveness in the Court's approval. The Third
and Second Circuits analyze the Supreme Court cases in the same
way. Currens, pp. 767-771 of 290 F.2d; Freeman, pp. 613-15 of 357
F.2d. So does Judge Griffin B. Bell in dissent in Carter v. United
States, supra, p. 704 of 325 F.2d. And the consistent denial of
certiorari in the many District of Columbia cases seems to fortify
When we read Judge Van Pelt's instructions in
the present case, it is readily apparent, as the defense appears
to concede, that the charge appropriately embraces and properly
emphasizes the stated and requisite three elements of knowledge,
will and choice. Indeed, his definition of 'insane' follows most
closely the very charge given to the jury in each of the Davis
trials. See pp. 476-477 of 160 U.S. 16 S.Ct. 353 and p. 378 of 165
U.S. 17 S.Ct. 360. We therefore have no difficulty in holding that
there is no error in that portion of the charge dealing with
In any event, we are convinced, after a careful
review of the entire record, that this is not a case where the
defendant could possibly have been prejudiced by the charge as
given. See Judge Hastie's comment in dissent in Currens, p. 776 of
By way of addendum, we state that we expect a
trial judge, in a case involving criminal responsibility, to be
free in his admission of all possibly relevant evidence, to be
imaginative in his charge, and to give appropriate and particular
stress to the requirements of cognition, volition and capacity to
control, rather than to be content with the bare bones of a
traditional charge, even though it has been specifically approved
by appellate opinion in the past. If this is done, effective and
appropriate justice will be dispensed to the defendant who
sincerely asserts legal insanity as his defense, and it will be
accomplished with responsible judicial participation in each day's
advance and contribution to our knowledge of the human mind.
We join Judge Van Pelt, see United States v.
Pope, 251 F.Supp. 234, 242 (D.Neb.1966), in expressing gratitude
to Robert B. Crosby and Wallace M. Rudolph for their service as
defense counsel on this appeal. Here, as in all the proceedings in
the district court, they have represented Duane Pope well and
devotedly. The length of this opinion and the nature of the issues
raised attest to this. We also commend counsel for the government
for their meticulous preparation and fairness in the presentation
of a case which demanded the utmost in care and the avoidance of
We believe that the following currently sets
forth the respective approaches of the several federal courts of
appeals to the issue of criminal responsibility:
District of Columbia Circuit. The McConald-Durham
rule, as initally pronounced for the Circuit in Durham v. United
States, 94 U.S.App.D.C. 228, 214 F.2d 862, 874-875 (1954) ('It is
simply that an accused is not criminally responsible if his
unlawful act was the product of mental disease or mental defect'),
but as restrictedly clarified and modified en banc by McDonald v.
United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 851 (1962) ('What
psychiatrists may consider a 'mental disease or defect' for
clinical purposes, where their concern is treatment, may or may
not be the same as mental disease or defect for the jury's purpose
in determining criminal responsibility. Consequently, for that
purpose the jury should be told that a mental disease or defect
includes any abnormal condition of the mind which substantially
affects mental or emotional processes and substantially impairs
behavior controls. * * * The jury must determine for itself, from
all the testimony, lay and expert, whether the nature and degree
of the disability are sufficient to establish a mental disease or
defect as we have now defined those terms'). Also, in Heard v.
United States, 121 U.S.App.D.C. 37, 348 F.2d 43, 44 (1965), it is
specifically stated that McDonald defined 'mental disease or
defect' to mean 'an abnormal condition of the mind which
substantially impairs capacity to control behavior'.
First Circuit. No authoritative decision. In
Amador Beltran v. United States, 302 F.2d 48, 52-53 (1 Cir. 1962),
the court, in response to a defense contention that M'Naghten is
no longer the proper test of criminal responsibility, said, 'We do
not care to pass on this broad issue on a bare record. However, we
commend to the district court's attention cases such as United
States v. Currens * * * and request that, on the new trial, if it
determines the defendant could properly distinguish between right
and wrong, it nevertheless make further findings so that we may,
if need be, give consideration to this matter'.
Second Circuit. The American Law Institute
alternative proposal as embodied in 4.01 of its Model Penal Code.
United States v. Freeman, 357 F.2d 606, 622 (2 Cir. 1966) ('A
person is not responsible for criminal conduct if at the time of
such conduct as a result of mental disease or defect he lacks
substantial capacity either to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law').
Third Circuit. A modification of the American
Law Institute proposal. United States v. Currens, 290 F.2d 751,
774 (3 Cir. 1961) ('The jury must be satisfied that at the time of
committing the prohibited act the defendant, as a result of mental
disease or defect, lacked substantial capacity to conform his
conduct to the requirements of the law which he is alleged to have
Fourth Circuit. Apparently no recent definitive
decision although there are 'right and wrong' references in Hall
v. United States, 295 F.2d 26, 29-30 (4 Cir. 1961). See Judge
Thomsen's opinions in United States v. Hopkins, 169 F.Supp. 187,
188-191 (D.Md.1958), and United States v. Leister, 235 F.Supp.
979, 980-981 (D.Md.1964), where he appears to favor the American
Law Institute approach but in each case would reach the same
conclusion under any test.
Fifth Circuit. Apparently a M'Naghten variation.
Howard v. United States, 232 F.2d 274, 275 (5 Cir. 1956 en banc).
'* * * either the incapacity from some mental
disease or defect to distinguish between right and wrong with
respect to the act, or the inability from such disease or defect
to refrain from doing wrong in the commission of the act * * *'
Kittrell v. United States, 334 F.2d 242 (5 Cir.
1964); Merrill v. United States, 338 F.2d 763, 766 (5 Cir. 1964);
Birdsell v. United States, 346 F.2d 775, 781 (5 Cir. 1965), cert.
denied 382 U.S. 963, 86 S.Ct. 449, 15 L.Ed.2d 366. An attempt to
establish a different rule in the Circuit failed in 1963 with an
equally divided en banc court. Carter v. United States, 325 F.2d
697, 5 Cir., cert. denied 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d
Sixth Circuit. M'Naghten and irresistible
impulse. Pollard v. United States, 282 F.2d 450, 457 (6 Cir.
Seventh Circuit. Probably the M'Naghten approach.
United States v. Cain, 298 F.2d 934 (7 Cir. 1962), cert. denied
370 U.S. 902, 82 S.Ct. 1250, 8 L.Ed.2d 400, where the court
approved an instruction that a person is responsible for his acts
'if he is aware of what he is doing and has the mental capacity to
choose between a right and a wrong course of action'. But in
United States v. Cooks, 359 F.2d 772, 773-774 (7 Cir. 1966), the
charge approved seems to contain some A.L.I. overtones.
Ninth Circuit. Evidently, at the present time,
M'Naghten and irresistible impulse. Andersen v. United States, 237
F.2d 118, 126-128 (9 Cir. 1956); Sauer v. United States, 241 F.2d
640, 642 (9 Cir. 1957), cert. denied 354 U.S. 940, 77 S.Ct. 1405,
1 L.Ed.2d 1539; Smith v. United States, 342 F.2d 725, 727 (9 Cir.
1965). In Sauer the court stated, p. 642 of 241 F.2d, that it was
doubtful whether 'the question is an open one'. It also there
observed, pp. 644-65 and 652, 'Because we are required to follow
the rule of M'Naghten's Case does not mean we are satisfied with
it, or indorse it with absolute finality for all time to come. * *
* If change there is to be, it must come from a higher jucicial
authority, or from the Congress'. But in the very recent case of
Maxwell v. United States, 368 F.2d 735 (9 Cir. 1966), 'where the
evidence as to any insanity was extremely meager', a Ninth Circuit
panel stated, 'We express no opinion * * * as to the A.L.I.
proposal or variations of that proposal, nor do we now indicate
either approval or disapproval of the Davis instruction, followed
in Andersen and Sauer'.
Tenth Circuit. Perhaps the broad approach not
dissimilar to our own. What is essentially the Davis charge was
approved in Coffman v. United States, 290 F.2d 212, 215 (10 Cir.
1961), and again by Chief Judge Murrah speaking for a unanimous en
banc court in Wion v. United States, 325 F.2d 420, 424 (10 Cir.
1963), cert. denied 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309.
In Wion, Currens is rejected 'because of our unwillingness to
concede that the law is unconcerned with the morals of one's
conduct, for purposes of determining criminal responsibility. We
proceed on the fundamental premise that moral responsibility and
moral sanctions are the warp and woof of the law * * *', p. 427 of
325 F.2d. The court then stated, p. 430, that when the defendant's
mental capacity is in issue, he is not criminally responsible for
his conduct 'if, at the time of such conduct, as a result of
mental disease or defect, he lacked substantial capacity either to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law. The jury is then to be
told that * * * they must be convinced beyond a reasonable doubt
that at the time the accused committed the unlawful act, he was
mentally capable of knowing what he was doing, was mentally
capable of knowing that it was wrong and was mentally capable of
controlling his conduct. * * * The definition of insanity, as
embodied in the instructions of the trial Court following Coffman,
incorporated all of the elements of the A.L.I.Code'. See, also,
Fitts v. United States, 335 F.2d 1021, 1022 (10 Cir. 1964), cert.
denied 379 U.S. 979, 85 S.Ct. 682, 13 L.Ed.2d 569; Otney v. United
States, 340 F.2d 696, 699 (10 Cir. 1965); Gessner v. United States,
354 F.2d 726, 729 (10 Cir. 1965).
Little would be accomplished listing here the
approaches to the problem in the various state courts. See,
however, the annotations at 45 A.L.R.2d 1447 (1956), and the
supplements thereto. Of interest is the unusual result recently
reached by the Wisconsin court in State v. Shoffner, 31 Wis.2d
412, 143 N.W.2d 458 (1066).
LAY, Circuit Judge (concurring).
One cannot help voicing a very hesitant
reluctance to enlarge upon the excellent opinion of Judge Blackmun.
My concurrence in the analysis and substance of the Court's
viewpoint reflected therein is with full and firm conviction.
However, I feel compelled to comment briefly upon an issue that
has troubled me. This concerns the denial to the defendant herein,
to exercise the right of allocution under Rule 32(a) of the
Fed.R.Crim.P., which reads in part:
'* * * Before imposing sentence the court shall
afford counsel an opportunity to speak on behalf of the defendant
and shall address the defendant personally and ask him if he
wishes to make a statement in his own behalf and to present any
information in mitigation of punishment.'
As Judge Blackmun has so perceptively analyzed,
this rule has resulted in conflicting viewpoints on the two stage
32(a) allows the court an opportunity to review all facts and
circumstances 'without strict evidential procedural limitations'
to consider 'any information in mitigation of punishment.'
Mr. Justice Black, in Williams v. People of
State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337,
illustrates the inadequacy of allocution in the unitary trial,
when he says:
'* * * Rules of evidence have been fashioned for
criminal trials which narrowly confine the trial contest to
evidence that is strictly relevant to the particular offense
charged. These rules rest in part on a necessity to prevent a time
consuming and confusing trial of collateral issues. They were also
designed to prevent tribunals concerned solely with the issue of
guilt of a particular offense from being influenced to convict for
that offense by evidence that the defendant had habitually engaged
in other misconduct. A sentencing judge, however, is not confined
to the narrow issue of guilt. His task within fixed statutory or
constitutional limits is to determine the type and extent of
punishment after the issue of guilt has been determined. Highly
relevant-- if not essential-- to his selection of an appropriate
sentence is the possession of the fullest information possible
concerning the defendant's life and characteristics. And modern
concepts individualizing punishment have made it all the more
necessary that a sentencing judge not be denied an opportunity to
obtain pertinent information by a requirement of rigid adherence
to restrictive rules of evidence properly applicable to the trial.'
337 U.S. at 246-247, 69 S.Ct. at 1083.
Fistorically and traditionally the right to
sentence a convicted criminal under common law was in the power of
the trial judge. Thus, at common law 'no judgment for corporal
punishment could be pronounced against a man in his absence, and
in all capital felonies it was essential that it should appear of
record that the defendant was asked before sentence if he had
anything to say why it should not be pronounced.' Ball v. United
States, 140 U.S. 118, at 129, 11 S.Ct. 761, at 765, 35 L.Ed. 377.
See also Schwab v. Berggren, 143 U.S. 442, at 447, 12 S.Ct. 525,
36 L.Ed. 218. However, the First Congress of the United States
'That if any person or persons shall within any
fort, arsenal, dockyard, magazine or in any other place or
district of country, under the sole and exclusive jurisdiction of
the United States, commit the crime of willful murder, such person
or persons on being thereof convicted shall suffer death.'
1 Stat. 113. Under this statute the trial judge
was given no discretion in sentencing the defendant.
The law of the first Congress was amended in
1897, adding the qualification that the verdict of jury can be 'without
capital punishment.' The amendment to the original statute 100
years later becomes significant as a contemporaneous and desired
recognition of a civilized society's concern to inprove their
criminal laws and punishment.
The treatment of the 1897 amendment in Winston
v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456,
demonstrates that the jury has unlimited discretion to grant life
imprisonment even without mitigating circumstances being shown. It
would thus appear, the past history of capital punishment in
federal crimes indicates that the common law rule of allocution
now incorporated in Rule 32(a) has no application whatsoever in a
federal jury's determination of the death sentence. Accordingly,
the denial of allocution in this case, in my humble opinion, is an
outgrowth from the historical background of the legislation
concerning punishment for willful murder. It is also an
anachronistic reach-back to the Dark Ages.
This incongruity has similar roots to other
related histories of our criminal law. Originally, in England, a
person charged with treason or a felony was denied the aid of
counsel, whereas persons accused of misdemeanors were entitled to
the full assistance of counsel. As early as 1758, Blackstone
commented: 'For upon what face of reason can that assistance be
denied to save the life of a man, which yet is allowed him in
prosecutions for every petty trespass?' 4 Blackstone 355. See
Powell v. State of Alabama, 287 U.S. 45, at 60, 53 S.Ct. 55, 77
Blackstone's concern of 200 years ago
appropriately questions the denial of allocution in capital cases
in our federal criminal law today. It is 'a perversion of all
sense of proportion' that this inequality should go unobserved
without discordant voices being sounded. The weighted degree of
proof or persuasion required under criminal insanity laws (and the
judicial uncertainty of it all
) as to guilt or innocence cannot, in my opinion, present the same
balancing factors as in determination of whether the defendant's
punishment should be life or death. It is my fervent hope that the
newly appointed National Commission to study our federal criminal
procedures and laws will review this obvious omission and
appropriate legislation will provide the remedy.
I suggest without reservation that this might be
an appropriate case for consideration by the Executive of the
exercise of clemency power to the extent of reducing the death
sentences on the last three counts to life imprisonment. See
Biddle v. Perovich, 274 U.S. 480, 487, 47 S.Ct. 664, 71 L.Ed.
1161. The ends of criminal justice would be served by a life
sentence for Duane Pope. I fully recognize that clemency is not
within the power of the judiciary, yet the overall circumstance of
this case and need of bumaneness in laws of criminal procedure
require me to speak.
'Confessions remain a proper element in law enforcement. Any statement
given freely and voluntarily without any compelling influences is, of
course, admissible in evidence. * * * There is no requirement that
police stop a person who enters a police station and states that he
wishes to confess to a crime, or a person who calls the police to
offer a confession or any other statement he desires to make.
Volunteered statements of any kind are not barred by the Fifth
Amendment and their admissibility is not affected by our holding today.'
Miranda v. State of Arizona, supra, p. 478 of 384 U.S., p. 1630 of 86
'MR. RUDOLPH: We object to the manner of choosing the jury
panel in that it does not allow for a proper cross section of the
community. The method of choosing by reomendation places undue
emphasis on the length of residence, resulting in an undue
representation of older age groups and a dearth of representation
of young persons. This is especially prejudicial in this case as
psychiatric evidence will be presented, and the fact that the
defendant is a young man, it being an accepted fact that young
persons are more receptive as a group to such psychiatric evidence
'THE COURT: Overruled, and I don't believe the statement that
is made about psychiatric evidence, and it is my personal opinion
that young people would be more likely to order the death penalty
than older people, so that you will have my notions about it. I
shall overrule the motion.
We note, however, that the opposite view prevails in South
Dakota and in Iowa. State v. Garrington, 11 S.D. 178, 76 N.W. 326
(1898); State v. Lee, 91 Iowa 499, 60 N.W. 119, 121 (1894)
'12. Do you have a religious or church affiliation?
'13. If so, what is it?
'25. Have you heard of the John Birch Society?
'26. Do you feel that the John Birch Society is a good
influence in this country?
'27. In your opinions on public affairs would you classify
yourself as a conservative, a liberal, or a middle-of-the-road
Rule 32(a) at the time of the trial read:
'Before imposing sentence the court shall afford the defendant
an opportunity to make a statement in his own behalf and to
present any information in mitigation of punishment'.
As amended effective July 1, 1966, it reads:
'Before imposing sentence the court shall afford counsel an
opportunity to speak on behalf of the defendant and shall address
the defendant personally and ask him if he wishes to make a
statement in his own behalf and to present any information in
mitigation of punishment'.
'In order for a person to be criminally responsible for the
doing of a criminal act, he must have been sane at the time he
committed it. If he was not sane at the time he committed the
criminal act, then under the law he is held to be not guilty by
reason of insanity of any criminal charge based on such act. This
is because the law does not hold a person criminally accountable
for his conduct while insane, since an insane person is not
capable of forming the intent essential to the commission of a
'Under the law a person who commits a criminal act is sane if
(a) at the time he had sufficient mental capacity and reason to
distinguish right from wrong as to the particular act and if (b)
he had the mental capacity and reason to understand the nature and
character of the act and its consequences and if (c) his doing of
the act was not occasioned by an uncontrollable or irresistible
'In the present case, in order to convict the defendant of the
offenses charged, the burden of proof is upon the government to
establish beyond a reasonable doubt that the defendant was sane at
the time he committed the offenses charged. The defendant is not
called upon to prove that he was insane at that time.
'As heretofore stated, defendant has admitted committing the
offenses charged. The sole issue in connection with the charge in
each of Counts I through VI, inclusive, is therefore whether or
not the defendant was sane at the time of the commission of the
acts and offenses charged.
'In order for the government to establish that the defendant
was sane at the time he committed the offense charged in each
separate count, it must establish beyond a reasonable doubt each
and all of the three following propositions, to-wit:
'(1) That at the time of the commission of the offense charged,
the defendant had the mental capacity and reason to distinguish
between right and wrong as to such offense.
'(2) That at the time of the commission of the offense charged,
the defendant had sufficient mental capacity and reason to
understand the nature and character thereof and the consequences
of such offense.
'(3) That he did not commit the offense charged by reason of
uncontrollable or irresistible impulse.
A person acts from an uncontrollable or irresistible impulse
when he does an act not because of a desire and intention to
commit the same but is moved to do so because of an impulse which
he is not able to control or resist, or in other words, that he
was unable to prevent himself from committing it.
'In referring to the mental capacity and reason of the
defendant to distinguish between right and wrong, I charge you, as
I indicated during the examination of one of the psychiatrists,
that you are not interested in his knowledge or moral judgments as
such or the rightfulness or wrongfulness of things in general. You
must make a determination as to the defendant's knowledge of
wrongfulness so far as the acts charged are concerned. This could
be stated as his capacity to conform his conduct to society's
standards or, in more commonplace language, whether the defendant
was aware when he committed the acts charged that his acts were a
violation of law.
"Insane,' as used in this charge, means such a perverted and
deranged condition of mental and moral faculties as to render a
person either incapable of distinguishing between right and wrong,
or incapable of knowing the nature of the act he is committing; or,
even where a person is conscious of the nature of the act he is
committing, and is able to distinguish between right and wrong,
and knows that the act is wrong, yet his will-- the governing
power of his mind-- has been so completely destroyed that his
actions are not subject to it, but are beyond his control.
'If the government has established each and all of the
foregoing propositions numbered (1), (2) and (3) beyond a
reasonable doubt, then it has established beyond a reasonable
doubt that the defendant was sane at the time he committed the
offenses charged. If the government has failed to establish beyond
a reasonable doubt any or all of the foregoing propositions
numbered (1), (2) and (3), then you should find the defendant not
guilty by reason of insanity.
'The burden cast upon the government in this case does not
require that the government prove that the defendant was not
mentally ill in any degree at the time of the commission of the
offenses charged. It does require that the evidence adduced be
sufficient to convince and satisfy you beyond a reasonable doubt
that the defendant was sane and was not insane at the time of the
commission of the offenses within the meaning of the test which I
have previously outlined to you.
Chief Judge Biggs has observed, evidently after a review of the
original record, that the trial judge in the Matheson case also
charged, 'If you believe that the shooting was the direct result
or offspring of insanity, you should acquit, if of passion or
revenge, you should convict'. He regards this language as 'very
close to the essentials of the Durham formula stripped of all
glosses'. United States v. Currens, supra, p. 768 of 290 F.2d
The District of Columbia Circuit, within a few years after
Durham, manifested an enlarging disenchantment with the pure 'disease-product'
test, chiefly because of shifting diagnostic definitions of mental
disease, see Blocker v. United States, supra, p. 860 of 288 F.2d (separate
opinion of Judge Burger) and a lack of definition or clear meaning
of the term 'product'. Dissenting members of that circuit pointed
out that unless the prosecution could carry the enormous burden of
showing that there was no nexus whatsoever between the mental
state and the act, an acquittal usually resulted. This dissenting
view appears finally to have prevailed, and in McDonald, p. 851 of
312 F.2d, it seems to us, there emerged a significant change by
way of a definition of mental disease as meaning, in the context
of the criminal case, a disease which 'substantially affects
mental or emotional processes and substantially impairs behavior
controls. * * * The jury must determine for itself, from all the
testimony, lay and expert, whether the nature and degree of the
disability are sufficient to establish a mental disease or defect
as we have now defined those terms.' This change had the
incidental effect of giving some meaning to 'product', that is, if
the jury believes the disease does not substantially impair
behavior controls, it is free to find that the disease did not
'produce' the act. We thus see the metamorphosis in the District
of Columbia Circuit, from the former rigidities of the disease-product
test to the standard of capacity for control as prescribed by
McDonald. See also, the intervening cases of Campbell v. United
States, 113 U.S.App.D.C. 260, 307 F.2d 597 (1962), and Frigillana
v. United States, 113 U.S.App.D.C. 328, 307 F.2d 665 (1962)