Evening star., 1961-04-09
Gosch Takes Last Shot
At Durham Sonity Rule
BY PHIL THOMAS
Star Staff Writer

Oliver Gasch, preparing soon
10 step down as United States
Attorney here, paused last week
to take a parting shot at his
most frustrating problem"
during six years in the job.
That problem-"no question
about it"-has been the Dis
trict's legal doctrine governing
standards Of criminal insanity,
the so-called Durham rule"
adopted by the United States
Court Of Appeals in July, 1854.
Mr.. Gasch will be succeeded
by David C. Acheson, a partner
in a Washington law firm and
son of former Secretary of
State Dean Acheson. The
younger Mr.. Acheson was re-
Gently picked as the Kennedy
administrations choice to re-
place Mr.. Gasch as the Dis
trict's chief prosecutor.
Since he took over the job of
United States Attorney from
the late Leo A. Rover (who un-
til his death last year was chief
judge Of the Municipal Court of
Appeals, Mr.. Gasch has been
an outspoken foe Of the Dur
ham rule.
Mr.. Gasch feels it has i'm
posed "a very difficult, if not
impossible, task on the prose-
cutor" in cases where a defend
ant claims he isn't guilty of
q crime because it was COM
mitted as a result of mental
disease or defect.
Arranged Lectures
In an effort to help his as
sistants cope with this problem,
Mr.. GaSch, working with psy-
chiatrists at st. Elizabeths
Hospital, arranged a series of
lectures on mental ills for his
assistants.
And he put into operation a
program of screening criminal
cases in which insanity might
be offered as a defense.
Mr.. Gasch's staff members
have faced a requirement Of
the appellate court that the
prosecutor prove sanity "be-
yond a reasonable doubt" when
an insanity defense is raised.
The prosecutor also is re-
quired to prove that the crime
was not a product Of any men,
tai disease or defect suffered by
a defendant, under the Durham
rule.
Although juries are suspi-
cious of an insanity defense,
nevertheless our trial judges
feel obligated to direct verdicts
Of not guilty by reason of in
sanity when the Government
fails to produce its required
quantum Of evidence" Mr..
Gasch said.
Urges a Shift
Mr.. GaSch feels that the shoe
should be placed on the other
foot if the Durham rule is to be
retained-that the defendant
should prove "by a preponder-
ance of the evidence that he
was insane and that his crime
resulted from mental disease or
defect.
Without this element of
proof, the prosecutor feels
there can be no really fair de-
termination of the issue Of
guilt or innocence in cases
where insanity is raised as q
defense.
But he goes even further than
this. AS chairman Of the Dis
trict's Law Enforcement. Coun-
Gil, he recently voted with
other council members to rec
ommend that Congress put in
force a new insanity rule here
THE District is the only
English-speaking jurisdiction
in which the capacity to re-
strain ones illegal impulse is
not an important and decisive
factor for consideration of the
jury" he said.
Thus he believes that an
insanity rule urged by a panel
of lawyers of the American Law
Notwithstanding this Ca
pacity rule"-should replace
the Durham rule.
with Durham we are unable
to get at the real truth of the
situation" Mr.. Gasch said.
Mallory Worry Fades
On another score-involvinl
the use of confessions as evi
dence in criminal trials-Mr
Gasch seemed not so worried
as he has been in the past ii
relation to the 1857 Mallor!
ruling of the Supreme Court.
In that case the high cour
ruled out the use of a confes