Evening star., 1961-03-12
BY MIRIAM GUTENBERG

star St0ff writer
For nearly seven years, the
Court Of Appeals here has been
trying to explain what it meant
by the Durham rule"-itS very
own test Of insanity as a defense.
The stack of its opinions has
grown and grown. More than 10
b times it has written on this one
subject. In less than seven years
it has talked more about insanity
than ether jurisdictions have done
in 80 years.
The more it has written, the
more it has tied the hands Of the
prosecutors, puzzled District Court
judges. annoyed psychiatriSts and
given a field day to defense at
torneys.
This didn't happen overnight.
Defense attorneys weren't sure at
first just how far the court
planned to 60. Then, when Con-
gress passed law in August, 1855.
providing that those found not
guilty by reason of insanity had
to go to a mental hospital, some
defendants didn't care for the in
sanity defense.
, In fiscal 1857, only seven out Of
e473 cases or is per cent were
disposed Of here by a finding of
mot guilty by reason of insanity.
= But in 1858, the number jumped
to 18 out Of $40 or 3.3 per cent
"and in fiscal 1859, it climbed
again to 80 out of 400 or 6.7 per
cent. In fiscal 1860, "a out Of 402
cases or 8.5 per cent were disposed
.-of on insanity grounds. During
the first half Of 1861, almost as
many were found not guilty by
reason Of insanity as in the entire
preceding year-32 out of 225 or
'142 per cent.
Last month alone, eight out Of
81 cases were disposed of via the
insanity route-or Is per cent.
Selling the Durhom Rule
AS a defense, it proved so effec-
tive here that defense attorneys
tried to sell the Durham rule"
across the land. It got a tre-
mendous propaganda push also
from some students Of the law
and some psychiatrists who hailed
it as great forward step in max
ing mental illness more under
standable to judges and juries.
But the judges didn't go along.
The Durham rule" has been con-
Sidered and rejected by three Fed
eral courts of appeal, by the
United States Court Of Military
Appeals and by the highest courts
Of 20 States.
In neighboring Maryland, the
judges not only rejected it but
they are now refusing to honor
writs seeking to bring Maryland
prisoners to the District for trial
on District crimes. Maryland
doesn't take kindly to the prospect
of lending" a prisoner to the
District for trial and then seeing
him wind up in st. Elizabeths as
either mentally incompetent to
stand trial or not guilty by reason
of insanity. Maryland doesn't
want its custody of the prisoner
jeopardized nor its conviction at
tackled on the ground that he was
insane all the time.
. - While all this has been going
on, most Of the courts Of appeals
, have been rocking along with the
Durham rule"-discussing, ex-
planning, but not dissenting.
Now, the first major rebellion
has occurred. A third Of the nine
judges on the appellate court have
announced publicly their convic-
ton that the Durham rule must be
abandoned. They've gone further
. than that. Through their spokes-
man-Judge Warren E. Burger
they have issued an open and
= candid invitation to District Court
judges to join the rebellion.
RebuttaI Is Missing
Judge Burger spoke his mind
and. that Of Chief Judge Wilbur
K,tMiller and Judge Walter M.
Bastian in 6 recent 3l-page