Evening star., 1961-03-12
Rebellion in Court of Appeals
Urges Dropping Of Durham Rule

where not even relative certain
ties are established"
His first objection is the term
disease" Even the experts don't
agree as to what mental disease
means, he argues, so how can lay
jurors understand and apply
terms whose meanings are unclear
to acknowledged experts.
He cited the now-famous week.
end decision at st. EliZabeths.
Between Friday afternoon and
Monday morning, st. Elizabeths
decided that a sociopathic or psy-
chopathic personality was a men
tai disease. Before that Monday,
the court had been told for years
that it wasn't q mental disease.
Judge Miller has his own defini-
ton: "A Sociopath Is. to state it
simply, a person who cannot get
along with other peopleD
The weekend change" at st.
Elizabeths, said Judge Burger. al
tered the scope Of the Durham
rule to embrace a vast number of
people and problems not contem-
plated by this court when the rule
was adopted.
Standards which are to be re-
lied on by judges and juries," he
wrote, "by their very function
should not be subject to such
wide variation from case to case
or witness to witness or month to
month. Even-handed justice can
not be measured out with a rub
ber' yardstick."
His second objection-and one
shared by many Of the psychia-
trists he quotes-is to the term
product" Under the Durham
rule, psychiatrists are asked to
say whether they believe the GRIM
inal act was a product" Of the
disease.
Probably Moral Issue
Some psychiatrists object be-
cause they believe that product"
is a moral issue which should
properly be left to juries and that
psychiatrists should not even be
asked about it.
Only last week, District Court
Judge Alexander Holtzoff in hand
ing down a 58-page opinion on a
first-degree murder case tried
without a jury. pointedly noted
that some psychiatrists find diff
ficulty in determining what is
meant by crime being the prod
uct' Of a mental disease or mental
defect" Juries, too, he said. find
the Durham rule" vague and diff
ficult to apply because Of its gen.
eral and abstract phraseology.
Judge Burgers third objection
is aimed at what the Durham
rule leaves out any test Of
whether the accused recognized
that what he was doing was wrong
and any test of his capacity to
control his conduct.
Judge Burger argued that a
1857 decision Of the appellate
court stated clearly that it ad-
hered to the basic premise Of the
criminal law that II q man Of
his own free will chooses to do
wrong, he should be held respon-
sible for his acts. On the other
hand, If mental illness robbed
him Of his capacity to choose
between right and wrong, he
could not be held responsible.
If that Is the courts atti-
tude, Judge Burger contended, it
shouldn't be withheld from juries.
Judge Burger noted that . Judge
in New Hampshire, where the
original disease product" test
originated in 1869, offered what
Judge Burger thought would be
an improvement on the jury
charge here:
"If the defendant had an in
sane impulse to kill his wife,
which he could not control, then
mental disease produced the act.
If he could have controlled 1t.
then his will must have assented
to the act, and it was not caused
by the disease but by the con-
curreneNp Of his will and was
therefors crime"
Judge Burger argued that If the