Evening star. [volume] (Washington, D.C.) 1854-1972, 1956-04-01
Third Trial Comma

The case of Monte Durham must be
setting some kind of record for judicial
longevity.
On July IS, 1951-nearly five years
ago-Durham was caught while burglar
izing home. Some two years later,
despite plea that he was insane at the
time of the offense, Durham was con-
victed. This was reversed by the Court
of Appeals in an opinion which enlarged
the insanity defense by adoption of the
mental disease-mental defect rule.
Once again Durham was convicted,
despite his insanity plea under the
broadened definition. And now, for the
second time, the appellate judges have
reversed the conviction, and sent the case
back to the lower court for third trial.
The principal basis for the second
reversal was an instruction given the jury
by Trial Judge David A. Pine. He gave
the jurors the new definition Of insanity
and told them he would commit Durham
to st. Elizabeths Hospital II he should be
acquitted on insanity grounds Prior to
this, however, an official of st. Elizabeths
had certified that Durham was mentally
this certif1cation, Judge Pine went on to
tell the jury that "if the authorities lat
ST. Elizabeths) adhere to their last
opinion on this point (DurhamS sanity
he will be released very shortly"
Judge Pine gave this explanation for
his instruction: IF the jury should be
told that the defendant would be COM
mitted to a mental institution if found
not guilty by reason of insanity, it is
incomprehenSible to me that it should not
also see the other side of the coin and be
told that he would be released very
shortly if the institution adhered to It's
expressed opinion as to his mental con-
dition. In my judgment, if the jury is
entitled to know one fact, it is entitled to
know the other. see no justification for
giving the jury half truth"
Appellate Judges Edgerton, Bazelon
and Washington strongly disagreed
First, they said the statement that Dur
ham would be released very shortly if
committed to st. Elizabeths was highly
prejudicial, for it implied warning that
dire consequences might result from a
finding that the defendant was not guilty
by reason of insanity" Presumably, the
appellate judges felt that Judge Pine, in
effect, had suggested to the jurors that
they should convict Durham. Second, the
appellate court said that mental com
potency to stand trial is entirely different
from such SoundneSS of mind as would
warrant discharge from the hospital"
In other words, Durham might be sane
enough to stand trial, but not sane
enough to be released from the hospital
If committed.
This is an interesting and important
point, for the precise distinction between
that degree of sanity which warrants a
trial and the degree of insanity which
precludes release from a mental institu-
ton is far from clear-at least In the
minds of several of the trial judges.
Durham has been committed to st.
ElizabethS three times the first in l947.
His first commitment lasted two months,
the second Is months, and the third, three
months. His last release was in May,
1851. Two months later he committed
the burglary Che says he was insane at
the time) which has now kept him in the
courts for almost five years If he should
eventually be committed again to st.
Elizabeths, it will be interesting to see
how long he is held.