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10/22/74 United States of America v. Thomas L. Robertson

October 22, 1974





Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 1631-71).


Bazelon, Chief Judge, Wilkey, Circuit Judge and Kaufman,* United States District Judge for the District of Maryland. Wilkey, Circuit Judge, dissenting.


Opinion for the Court filed by Chief Judge BAZELON. Separate Statement filed by Chief Judge BAZELON. Dissenting opinion filed by Circuit Judge WILKEY.

BAZELON, Chief Judge.

Appellant, Thomas Robertson, who was found mentally competent to stand trial, expressly refused to invoke the defense of insanity. He was convicted by a jury of second-degree murder, assault with intent to kill while armed and carrying a pistol without a license (22 D.C. Code 2403, 3202, 3204), for which he received concurrent sentences of ten years to life, two to fifteen years, and one year respectively.

After the jury found that Robertson committed the acts charged, the court held a hearing to consider whether it should raise the insanity defense sua sponte and submit the issue to the jury in a bifurcated proceeding. Robertson opposed imposition of the insanity defense. In accordance with that opposition, he called no witnesses and did not cross-examine the witnesses who testified for the prosecution. The hearing culminated in the court's determination not to raise the insanity defense. Robertson now contends in this appeal that this decision was erroneous. *fn1

The facts in this case are not in dispute. Appellant Robertson suffered a bloody wound over his forehead during a fist fight outside the Academy pool hall sometime between 4:30 and 5:00 on the afternoon of August 20, 1971. The reason for the fight and the identity of Robertson's opponent were not disclosed at trial. After the fight was stopped by on-lookers, Robertson left in his car. He returned approximately one-half hour later and momentarily appeared at the entrance of the Academy pool hall. He then crossed the street to another pool hall before once again returning to the Academy. Passing by a table where two men were playing pool, he suddenly turned, whipped out a gun, and shot one of the men at the table, injuring him in the shoulder. Robertson then ran out of the pool hall, jumped into his car, and drove the wrong way down a one-way street. *fn2

About fifteen minutes later, Robertson was seen in the midst of rush hour traffic, speeding and careening down the wrong lane of busy U Street in the face of on-coming traffic. He collided with a parked car, swerved over into the opposite lane and, after striking still other cars, came to a stop. Robertson then got out of his car, drew a gun, and stopped to talk briefly with the occupants of a car directly behind him, all of whom were Black. *fn3 Robert Aleshire, whose parked car Robertson had struck initially, was inspecting the damage when Robertson strode across the street towards him. Aleshire, who was White, leaned against the car as Robertson approached. When he reached Aleshire, Robertson shot him at point blank range, once in the shoulder and twice in the chest and abdomen. As one witness described it, ". . . [the] surprising thing [was] that he [Aleshire] made no motion at all. As he turned around, Mr. Robertson was there and he [Robertson] just lifted the gun and shot him." *fn4

After shooting Aleshire, Robertson raced down the middle of the street, brandishing his pistol and cursing the "white sons-of-bitches." *fn5 Seeing a police officer, he shouted, "You are doing it; why can't I?" *fn6 "Yes, I shot the white honkey son-of-a-bitch. What are you all going to do about it?" *fn7 A witness who was taken to the police station with Robertson testified that he continued to make such statements throughout the trip, saying, for example: "all of the white sons of bitches need to be killed or shot. I had did [sic] my part and I can't do anymore. . . . All the sons of bitches should be shot, . . . and that is the problem there isn't enough of us doing this sort of thing." *fn8

B. Pre-trial Mental Examinations and Status Hearings on the Insanity Defense

At a preliminary hearing on August 30, 1971, the Superior Court of the District of Columbia ordered Robertson committed to Saint Elizabeths Hospital pursuant to 24 D.C. Code § 301(a) for a psychiatric examination to determine competency and mental status at the time of the crime. Addressing the court, Robertson stated:

". . . I'm not going to get justice, I realize this perfectly. See, I'm one who is well versed in whiteness. . . . You won't get your white vengeance. . . . I have never been guilty of nothing [sic] but being born black in a white America -- racist white America. . . . But, I am not going to let you think that I do not realize who I am and who you are. You are the beast and I am a man. You say I killed a man. I have killed no man in my whole life."

The court responded, "I will sign the order, gentlemen. We'll make it forthwith. I think he should be at the hospital and not in jail." *fn9

While awaiting admission to Saint Elizabeths, Robertson was arraigned before the District Court, which on September 20 entered a new order for commitment to Saint Elizabeths. Shortly thereafter Robertson was admitted for examination. Two letters to the court from Saint Elizabeths Hospital, dated October 21 and November 9, 1971, reported Robertson competent and not suffering from a mental disease or defect. On September 28, the court granted the government's motion for examination of Robertson by Dr. John Cavanagh, a private psychiatric practitioner. Shortly thereafter the court granted Robertson's motions for an examination by Dr. Alyce Gullattee, a psychiatrist, and by Dr. Ronald Dockett, a psychologist, both engaged in private practice.

After all pre-trial mental examinations had been completed, Robertson notified the court at a March 24 status hearing held for purposes of scheduling the trial that, against advice of his counsel, he would not rely on the defense of insanity. Because all of the psychiatric evaluations found Robertson competent to stand trial, his counsel said that they would abide by his decision. The government, however, cited the "bizarre facts of this case" and called the court's attention to the fact that some of the experts' reports contained information supporting an insanity defense. *fn10

When the court asked Robertson his reasons for refusing to rely on the insanity defense, he declined to respond, but wrote a note that read: "I refuse to communicate in your language for the duration of my last six hours of incarceration. By my left side." After reading the note, the court agreed with the government that a pre-trial hearing was necessary to decide whether the insanity defense should be raised sua sponte over Robertson's objection. *fn11

At the pre-trial insanity defense hearing held April 10, Robertson's counsel informed the court that they had discussed with him the "substantial" merits of an insanity defense, but that he still declined to raise it. *fn12 Therefore, Robertson's counsel argued, inter alia, that imposition of the insanity defense would violate Robertson's Sixth Amendment right to effective assistance of counsel, would improperly interfere with the conduct of the defense, and would violate his right to due process since D.C. Code § 24-301(j), enacted in 1970, transfers the burden of proof of insanity onto the defendant. *fn13

The government urged the court to hear and determine the merits first, and then to turn to the insanity issue in a bifurcated proceeding. The court thereupon certified Robertson competent to stand trial and set a trial on the merits. It also announced that if the jury found against Robertson, the court would determine whether a sufficient basis existed for imposing the insanity defense in a bifurcated trial. *fn14

C. Trial on the Merits

On Robertson's motion at the close of the government's case, the court directed a verdict of acquittal on the first degree murder charge and submitted to the jury the lesser included offense of second degree murder. The court characterized the circumstances surrounding the death of Aleshire as "uncontradicted evidence that this was an impulsive frenzied act." *fn15 The court explained:

"We have here testimony in this case what this man's state of mind was, what the situation was at the poolroom, outside the poolroom, . . . inside the poolroom, . . . the Hart shooting [in the poolroom] happened so quickly and under such circumstances there can be no reasonable inference that his state of mind when he left the poolroom was any different from his state of mind when he arrived at 13th and U." *fn16

During the last two days of the trial, Robertson had to be carried into the courtroom; his posture was "limp" and his head often rested on the table as if he were in a stupor. *fn17 The trial court viewed Robertson's conduct as intentional posturing: "I am convinced that he is feigning. I am convinced that it is an act." *fn18 At a subsequent hearing on whether the insanity defense should be raised sua sponte, witnesses called by the government supported the trial court's observations. The Superintendent of the District of Columbia Jail and a United States Marshal reported that, when observed outside the courtroom, Robertson acted "normally." *fn19 Dr. Albert E. Marland, a psychiatric consultant at Saint Elizabeths Hospital, and Dr. John Cavanagh, a private psychiatrist appointed at the government's request, *fn20 testified that Robertson's conduct did not indicate a mental disorder but rather conscious malingering. *fn21

D. Consideration of the Insanity Defense

After the jury found Robertson had committed the acts in question, the court held a hearing on whether the insanity defense should be raised sua sponte. The court had before it the differing opinions set forth in the written reports of the experts concerning Robertson's mental state at the time of the crimes. In his written report filed with the court, Dr. Marland described Robertson's history as one of "aggressive nonconformity, [and] assaultive activity." According to Dr. Marland, Robertson reportedly spent much of his time in maximum security and solitary confinement in prisons in Virginia, Ohio, Illinois, Kentucky, Georgia, and Washington, D.C. He was raised in Washington, "mostly in precinct two which he admits is a tough area." Dr. Marland found that although Robertson was polite, his remarks were heavily overladen with "anti-racial philosophy with a lot of double talk." Dr. Marland concluded his report with the diagnosis of "anti-social personality, severe" on the basis of Robertson's past conduct and racial philosophy:

"I believe that his talk about humanism is not delusional, but that he is malingering with his double talk. He is impulsive, but not delusional. . . . He has a long history of aggressive antisocial behavior with rebellion against authority, but although today he denies racism verbally. [sic] Today there is no question of his identity with racial rebellion. He is superior intellectually with an arrogant expression of superiority to most people. He has always been hyperkinetic, he applies the word to himself. His attitude to authority . . . is one of rebellion and aggresssion. . . ."

Dr. Marland testified at the hearing that Robertson was not mentally ill but rather a "sociopathic personality." Robertson did not suffer from a "neurosis" or "psychosis" but instead was diagnosed as "anti-social personality -- severe type," defined as "a condition in which a person does not relate well with others." "It is not a mental disorder. It is merely a disturbance." *fn22 Marland characterized Robertson's conduct after the shooting of Aleshire as consistent with "exhibitionistic tendencies," i.e., those of a "show-off." He asserted, "I knew that he was an exhibitionist before I ever examined him." *fn23

The written report of Dr. John Cavanagh, the other prosecution expert, described his version of the shooting. According to the report, Robertson stated (Dr. Cavanagh's comments are in parentheses):

". . . all my education which was aimed at making me white was in the District of Columbia. (Are you white?) I am what I am -- The man I allegedly shot was a beast -- neither white nor black. The worst kind of beast. I was trying, but never succeeded. (They tried to make him white, i.e., an inferior being. The man I allegedly shot was a beast, i.e., not a human being.)"

Robertson, a student at Federal City College, revealed to Dr. Cavanagh that he was writing an essay entitled "In Search of an Identity in Racist White America." According to Dr. Cavanagh's report, Robertson explained his "search" this way (Dr. Cavanagh's comments are in parentheses):

"The negro has a limited degree of manhood. He can be one-third man. A Black Man is unlimited. I am a man. I am the man you think you are. This is a trial for my extinction. They don't want too many me's running around. (He gesticulates constantly. A Black Man has unlimited power and is not restricted by law. They have arrested me and by this trial seek my elimination. The powers that be want to eliminate people like "me".)

Murder is no different that [sic] war. (In war one is allowed to kill.)

If a black man kills a white man, it is not a crime. It is getting the oppression off his neck.

If a black man kills a black man, it is murder. I was under a lot of pressure on that day. The tension was due to the circumstances of my birth. People talk about me wherever I am. I am the topic of conversation. (More grandiosity, more need to be respected and looked up to. More hostility against the white man, "circumstances of my birth.")"

Robertson had explicitly asked Cavanagh to find him competent to stand trial. Cavanagh interpreted Robertson's remarks to mean that a finding of incompetency would indicate a defect in his character (and presumably impeach his philosophy). In reviewing the content of the interview, Dr. Cavanagh's report concluded: "Mr. Robertson at first glance appears to be psychotic, but on better acquaintance, it becomes clear that what appears to be psychotic mental content is more likely an expression of a cultural [sic] adopted language." [Emphasis added.] The doctor diagnosed Robertson as "antisocial personality," which he described as behavior "grossly selfish, callous, irresponsible, impulsive, and unable to feel guilt or to learn from experience and punishment."

In his testimony at the hearing, Dr. Cavanagh indicated that Robertson could distinguish "right from wrong" and could exercise freedom of choice: "[There is] no evidence that would cause me to believe that he was compelled to do anything on that date. . . . He knew it would have been wrong to kill a black man. He wasn't sure it was wrong to kill a white man. But he knew he was breaking the law. . . ." *fn24 Dr. Cavanagh concluded that Robertson was not schizophrenic at the ...

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