Evening star., 1954-11-10
Basic Misunderstondinq'?

b0Slc ISundeFSt0ndlng
In letter published elsewhere on this
page, Attorney Abe Fortas says he is afraid
that Star EDITORIALS "have contributed to a
basic misunderstanding by some of our
citizens as to the meaning and effect" of the
recent decision by the United States Court
of Appeals in the Monte Durham case This
was the decision in which the appellate
court, having appointed Mr.. Fortas as coun-
sci for the accused, announced new def
milton of insanity as defense in criminal
case in the District.
Mr.. Fortas does not spell out the precise
nature of the "basic misunderstanding" he
has in mind. He does say, however, that there
Is mo basis for the statement in The Stars
editorial of October that the new rule
will bring about the release of criminals
from whom the public should be pro-
tected.'"
This is misleading Interpretation of
that editorial. The statement which Mr..
Fortas says has "no basis" was not The
Stars statement although it may well prove
to be entirely correct but rather report
of statement by United States Attorney
ment by District Judge Schweinhaut with
reference to the new insanity definition.
Judge Schweinhaut said this: "The defense
of insanity is going to be used by every
other defendant who comes into this court.
We are embarked on a new era"
The main purpose here, however, is not
to debate the points which Mr.. Fortas makes,
but rather to take another look at aspects
of the Monte Durham decision which he
either ignores or passes over lightly.
To summarize, the Court of Appeals in
the Monte Durham case, asserting power
that is at least questionable, said it would
not be bound by the established tests of
insanity in criminal cases in the District
namely, whether the accused was unable to
distinguish between right and wrong, or, If
he could make this distinction, whether
his mental state was such that he was
subjected to an irresistible impulse to COM
NIT the offense. It adopted new and
broader rule-that an accused person "is
not criminally responsible If his unlawful
act was the product of mental disease or
mental defect"
Mr.. Fortas is indulging in considerable
poetic, or legalistic, license when he says
that the old tests are as obsolete as the
belief that an insane person is possessed
by the devil" and that to ask a psychiatrist
to testify with respect to these tests is like
asking doctor to say that man has pneu-
monia because he "blushes" Furthermore,
the rejected tests were not formulated long
before" the discoveries of modern psychi-
airy. Actually, the Irresistible impulse" test
was announced in 1929.
1t seems to The Star, however, that the
real questions involved have to do with the
meaning of the new definition of insanity
and the possible effects of it's application.
The appellate court rejected the "irre-
sistible impulse" test as being inadequate
in that it gives no recognition to mental ILL
ness characterized by brooding and refiec-
ton -. With reference to its new test
the court said: "We use disease in the
sense of condition which is considered
capable of either improving or deteriorating.
We use defect in the sense of condition
which is not considered capable of either
improving or deteriorating and which may
be either congenital, or the result of injury,
or the residual effect of physical or mental
disease"
What, precisely, does this mean, as ap-
piled to defense in criminal case? Per-
haps the appellate judges know. But The
Star doubts very much that it will be mean
ingful to jurors. And some Of our trial
judges have said that it's meaning is OBJ
scure to them.
Let's see what it might have meant in
the case of Monte Durham. He had been in
and out of mental institutions several times.
In May, 1851, he was discharged from st.
Elizabeths as being Of sound mind. Two
months later he committed the burglary for
which he was tried in this instance. In
October of that year (six months after
being found sane) he was adjudged insane,
and recommitted to St. Elizabeths Sixteen
months later he was released, proclaimed
to be of sound mind and competent to
stand trial.
ALI Of this, remember, was under the
old tests Now, the Court Of Appeals having
reversed his conviction, he is to be retired
under the new and less stringent mental
disease-mental defect test. It Is quite prob
able that he will be found not guilty by rea-
son of insanity-that is, that he suffered
from a mental defect at the time OF the
burglary. And it is also quite probable that
Durham, If committed to st. Elizabeths, will
not be there for long. He may suffer from
mental defect, but there is a strong prob