Don Wade v. United States

426 F.2d 64 Don WADE, Appellant, v. UNITED STATES of America, Appellee. No. 22657. United States Court of Appeals, Ninth Circuit. March 30, 1970. Jonathan E. Johnson (argued), of Roberts, Carmack, Brown, Johnson & Hunter, Los Angeles, Cal., for appellant. Alan H. Friedman (argued), Asst. U.S. Atty., Wm. Matthew Byrne, U.S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER, HUFSTEDLER, WRIGHT, KILKENNY and TRASK, Circuit Judges. ELY, Circuit Judge: 1 Once again we sit en banc to consider an appeal challenging the viability of the M'Naghten rules. As recently as 1968 we sat en banc in the consolidated cases of Ramer v. United States and Church v. United States, 390 F.2d 564 (9th Cir. 1968), and decided that neither of the cases contained such an appropriate record as would allow us to reach the merits of the issue of whether more modern standards for the determination of criminal responsibility should be adopted. No other Circuit except the First continues to rely on the ancient M'Naghten rules, and that Circuit has not, insofar as we can find, had the opportunity for reconsideration in the last eight years.…

Once again we sit en banc to consider an appeal challenging the viability of the M’Naghten rules. As recently as 1968 we sat en banc in the consolidated cases of Ramer v. United States and Church v. United States, 390 F.2d 564 (9th Cir. 1968), and decided that neither of the cases contained such an appropriate record as would allow us to reach the merits of the issue of whether more modern standards for the determination of criminal responsibility should be adopted. No other Circuit except the First continues to rely on the ancient M’Naghten rules, and that Circuit has not, insofar as we can find, had the opportunity for reconsideration in the last eight years.

Since the date of our Ramer decision, three more Circuits have rejected M’Naghten. Blake v. United States, 407 F.2d 908 (5th Cir. 1969) (unanimous en banc decision); United States v. Smith, 404 F.2d 720 (6th Cir. 1968); United States v. Chandler, 393 F.2d 920 (4th Cir. 1968) (unanimous en banc decision).

Here we have a case with a record different and far more complete than were those in Ramer and Church. Wade introduced evidence which disclosed a history of probable mental derangement. There was medical testimony which…

dissenting:

If we were going to see a psychiatrist, I am sure he would not let us bring our own couches along. When the psychiatrists come over to see us officially and testify, there is no valid reason I can see that they should not do business on our terms, to wit: the M’Naghten rule. And, there have usually been enough of them willing to use it. But now we bend our knee to them.

We live in a time when any change is presumed to be good. But all change is not good. Here it is not contended that if we use the A.L.I. rule some will be convicted who have not hitherto been convicted and that others will go free. And, it is not contended that exactly the same people will be convicted or that more will be convicted. The only possible consequence is that a lesser number will be convicted. Probably only a few will go free because of the change we now make. But those few, almost always associated with violent crimes, we shall put out on the streets, already unsafe enough. This is no time in American history to join this parade of psychedelic logic.

If Mr. Wade, the bank robber, is to be tested by less than M’Naghten, I would let the Congress require it.

While I do not believe there is…