Matter of Lomax , 367 A.2d 1272 ( 1977 )

HARRIS, Associate Judge:

This is an appeal from an order of the trial court dismissing a petition for appel-lee’s judicial hospitalization and releasing appellee from Saint Elizabeths Hospital, after a jury found that appellee, although mentally ill, was not likely to injure himself or others if allowed to remain at liberty. See D.C.Code 1973, § 21-545(b). Appellant, the Superintendent of Saint Eliza-beths Hospital, contends that a prejudicial opening statement by appellee’s trial counsel tainted the verdict and requires a remand for a new trial. Appellee argues that the government may not appeal from a jury verdict in favor of a patient under the Hospitalization of the Mentally Ill Act (D.C.Code 1973, § 21-501 et seq.), and that we accordingly should dismiss the appeal. He further argues that if the trial court’s order is appealable, no reversible error occurred. We hold that the government has the right to appeal from an order releasing an allegedly mentally ill person from custody, and that certain opening remarks by appellee’s trial counsel irreparably prejudiced the jury. We conclude that the trial court erred in denying the government’s motion for a mistrial, and reverse.

I

For the purpose of the proceedings which are the subject of this appeal, Mr. Lomax was admitted to Saint Elizabeths Hospital on August 25, 1975, pursuant to the emergency hospitalization provision of D.C.Code 1973, § 21-521.¹ The Superintendent then petitioned the court for appel-lee’s judicial hospitalization. Id. § 21-541. In accordance with § 21-542, the Mental Health Commission held several hearings to determine whether appellee should be hospitalized. Its report recommended either his detention at Saint Elizabeths for an indeterminate period or his placement in a foster care home. Appellee, through counsel, demanded a jury trial.² See D.C. Code 1973, § 21-544.

The Superintendent’s proof at the civil commitment trial was directed towards showing appellee’s alleged dangerousness and his inability to care for himself without supervision. Appellee’s wife testified that he had been hospitalized repeatedly in recent years, and that his March 1975 hospitalization was a direct result of his starting to attack her with a can opener. That stopped short of harm when appellee lapsed into a catatonic state. Police officers arrived to find him still in that condition, also having lost control of his bowels. Unable to draw appellee into conversation, they finally used Mace (so as to avoid injuring a man whom they recognized to be ill) in order to take away the can opener. Mrs. Lomax further testified that appellee often frightened her, and that he seriously neglected his physical appearance, slept clothed, stood and stared vacantly for long intervals, and persisted in eating foods which would endanger his healths He also chewed tobacco extensively, permitting the juice thereof to soil his person, clothing, and bedding.

Dr. Smothers, a clinical psychologist at Saint Elizabeths, gave expert testimony describing appellee’s mental illness as catatonic schizophrenia and expressing his opinion that Lomax would be dangerous to himself if he were not committed. A physician from the hospital testified as to ap-pellee’s physical ailments, and gave his prognosis for appellee’s deteriorating health should certain of his self-destructive habits continue unchecked. Lay witnesses also testified as to their observations of appellee’s peculiar behavior. .

Appellee’s trial counsel attempted to prove on cross-examination that both Mrs. Lomax and Dr. Smothers were biased in their beliefs as to the need for hospitalization. In addition, a social worker from the hospital testified concerning her impression —gained from visiting the Lomax household — that Mrs. Lomax encouraged her husband’s dependency and treated him like a child. She also testified to appellee’s ability to care for himself in the hospital.

The jury concluded that appellee should not be involuntarily committed because he was not dangerous to himself or others. The trial court then ordered appellee’s release, D.C.Code 1973, § 21-545 (b), but stayed the effectiveness of that order for 24 hours. A motions division of this court granted an interim stay pending this appeal, and later extended the stay after considering written submissions by the parties.³

II

Appellant maintains that our jurisdiction over this appeal is established by D.C.Code 1973, § 11-721(a)(1), which makes reviewable all final orders of the Superior Court. Appellant further contends that as a “party aggrieved” by the final order, he may appeal as a matter of right pursuant to § 11-721 (b). Appellee challenges these assertions, contending that they are inconsistent with the legislative purpose of the Hospitalization of the Mentally Ill Act, vi-olative of the patient’s constitutional rights, and contrary to common sense. We do not find appellee’s arguments persuasive.

The Hospitalization of the Mentally Ill Act contains no provision concerning the right to appeal from either the grant or denial of a petition for judicial hospitalization.⁴ Moreover, as this is not an appeal taken by the United States or the District of Columbia from an order entered in a criminal trial, it is not governed by D.C.Code 1973, § 23-104. Unless the very nature of the civil commitment provisions dictates that proceedings under them somehow are exempt from the broad scope of the review provisions of § 11-721, there is no statutory basis for concluding that this appeal is not permissible.

Appellee contends that to grant the petitioner the right to challenge the release of the patient and seek a retrial of the issues is meaningless, since a civil commitment proceeding is concerned only with the current mental state of the patient, rather than with his condition at some fixed time in the past. We see no merit in this argument. The principles governing the use of the habeas corpus writ to secure release from involuntary commitment provide a useful analogy. Confinement of the mentally ill does depend upon the current and continuing state of the patient’s mental health. Thus, when a patient files a petition for release on habeas corpus, it is his present status, i. e., whether he is currently mentally ill, which is at issue. See Dixon v. Jacobs, 138 U.S.App.D.C. 319, 327, 427 F.2d 589, 595 (1970). Although his mental condition often will be in a state of flux, i. e., either deteriorating or responding to treatment, it cannot be argued that the government would have no right to appeal from an erroneous grant of a habeas corpus petition. If reversal is deemed necessary, additional evidence of the patient’s current condition may be offered on remand. See, e. g., Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193 (1967); Overholser v. Russell, 108 U.S.App.D.C. 400, 283 F.2d 195 (1960). Further, if the Superintendent’s petition for commitment had been granted in this case and the patient then alleged that prejudicial error had been committed in the trial, the patient could not be denied the right to appeal simply because a retrial would be directed toward a temporally different mental condition than that which was at issue in the first proceeding. To accept such an argument would be in effect to eliminate all appeals from mental health proceedings.

It may well be that the petitioner cannot appeal from an adverse decision in a § 21-542 hearing before the Commission on Mental Health. The directive that the Commission “shall immediately order [respondent’s] release,” § 21-544, suggests that Congress intended no review of such an administrative decision, as the next step contemplated in the event of a decision against the petitioner is a trial in the Superior Court. See §§ 21-544 and -545. We need not reach this issue, however.

We construe § 11-721 as allowing review of a Superior Court decision after a § 21-545 hearing in which the respondent prevails. In such an event, the statute provides that “the court shall dismiss the petition and order his release.” § 21-545 (b). Assuredly that action is a final order or judgment of the sort which § 11-721 (a) contemplates. Nothing in the commitment statutes indicates an exception to this general rule of reviewability.

We also conclude that the Superintendent is “aggrieved” by an adverse judgment in the trial court, and therefore is a proper party to appeal under § 11-721(a). Our precedents in juvenile cases show a common sense approach to the concept of an aggrieved party. For example, we have held that a child who has been ordered committed is aggrieved. In re Sippy, D.C.Mun.App., 97 A.2d 455, 458-59 (1953). We also have held that the government was aggrieved by the dismissal of a delinquency petition in view of its interest in the proper upbringing of children. In re McDonald, D.C.Mun.App., 153 A.2d 651, 656-57 (1959). [Although Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), would now preclude such an appeal, it does not undermine McDonald’s interpretation of the concept of an aggrieved party.] In this case, appellant was a party to the suit, lost it when the court dismissed the petition, and is an official of the government which has a significant interest in protecting the community from ill and dangerous persons, as well as in protecting such persons from injuring themselves.⁵

Similarly, we find no merit in appellee’s suggestion that a retrial of the patient would violate the constitutional bar against double jeopardy. We are well aware that the interests at stake in an involuntary civil commitment proceeding are of transcendent proportions, and, regardless of the civil label which is affixed to such proceedings, we have seen fit to extend protections to them which normally are reserved for criminal adjudications. See In re Hodges, D.C.App., 325 A.2d 605 (1974); In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973) (in involuntary civil commitment proceedings mental illness and dangerousness must be proven beyond a reasonable doubt). Cf. Denton v. Commonwealth, 383 S.W.2d 681 (Ky.1964). Nonetheless, it would strain both the language and the purpose of the double jeopardy guarantee to extend it to bar this appeal.⁶

The double jeopardy clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . .” While we eschew reliance upon the labels of “civil” or “criminal”, the nature of a mental health proceeding is fundamentally distinguishable from the type of action to which the double jeopardy bar applies. The notion underlying the prohibition against double jeopardy is that an individual should not be twice tried or convicted for the same offense. See United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). A person alleged to be mentally ill is not on trial for having committed an “offense”, and we do not view civil commitment' — aimed basically at treatment for the afflicted individual —as comparable to punishment for the conviction of a crime.

Appellee argues that a mental health proceeding is analogous to a juvenile delinquency hearing, and that Breed v. Jones, supra, bars this appeal. In Breed, the Supreme Court held that a juvenile is put in jeopardy “at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.” 421 U.S. at 529, 95 S.Ct. at 1785.

Appellee’s reliance on Breed is misplaced. The Supreme Court’s decisions extending constitutional procedural rights to juveniles charged with offenses reflect an awareness of the similarity between juvenile delinquency determinations and adult criminal convictions. Breed v. Jones, supra, at 528-31, 95 S.Ct. 1779; In re Winship, 397 U.S. 358, 366-67, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); id. at 374, 90 S.Ct. 1068. (Harlan, J., concurring); In re Gault, 387 U.S. 1, 22-24, 27-29, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). See also In re M. W. F., D.C.App., 312 A.2d 302, 302-04 (1973) (Harris, J., dissenting).

The purpose of a civil commitment proceeding is not to decide whether a person has engaged in legislatively condemned conduct, but to determine whether he is mentally ill and likely to be a danger to himself or others. D.C.Code 1973, § 21-545 (b). Of course, as a matter of constitutional prohibition, Congress could not make mental illness a crime. See Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (statute making narcotic addiction a crime contravenes the Cruel and Unusual Punishment Clause); cf. Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). Although criminal prosecutions, delinquency adjudications, and commitment proceedings all may result in the loss of liberty, “an interest of transcendent value”, Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), there are obvious distinctions between a determination that a person is mentally ill and likely to endanger himself or others on the one hand, and a criminal conviction or a delinquency determination on the other.

The double jeopardy clause was meant to prohibit repeated attempts by the state to convict a defendant, thereby protecting him from harassment, expense, and ordeal. See Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). However, as appellee concedes, there is nothing in the Act which prevents the hospital from repeatedly filing new petitions for judicial hospitalization whenever it perceives that a person’s mental condition warrants confinement.⁷ Thus, to preclude government appeals on the basis of the double jeopardy guarantee would fail to protect the interests which that guarantee was designed to secure, further indicating the inapplicability of that safeguard to proceedings of this nature.

Additionally, appellee argues that to allow this appeal would betray the legislative design of the Hospitalization of the Mentally Ill Act by frustrating the policy of expedited proceedings. We fail to see how a single, orderly appeal taken to vindicate the considerable private and public interests with which the superintendent is entrusted could vitiate the purposes of the Act. An appeal from what the government perceives to be a flawed jury trial is preferable to reinstitution of the entire judicial hospitalization process. The substantial public interest in fair trials cannot tolerate a complete insulation of these proceedings from review in those cases in which the outcome favors the patient. See Illinois v. Somerville, 410 U.S. 458, 469-70, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

As we find no statutory, constitutional, or policy grounds which would operate to defeat our jurisdiction over this appeal pursuant to the broad authority bestowed by § 11-721, we hold that this court is both empowered and obligated to review appellant’s contentions on the merits.

Ill

Before reaching the substance of the appeal, however, we comment upon the existing stay order which is so vigorously challenged by our dissenting colleague.⁸

The propriety of a stay pending an appeal depends upon four factors: (1) whether the movant is likely to prevail on the merits of the appeal; (2) whether a denial of the stay would irreparably injure the movant; (3) whether a stay would substantially harm other parties interested in the proceeding; and (4) whether the stay would be in the public interest. Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958).

As we do reverse, it is obvious that there was a strong likelihood that appellant would prevail in this court. Whether or not appellant himself would be irreparably injured, a denial of the stay would have presented a risk of substantial harm to appellee’s wife. Appellee previously had attacked her, with the recent assault stopping only when he fell into a catatonic trance. The stay also undoubtedly benefitted appellee himself; assuredly he has received sorely-needed medical attention during the existence of the stay. The public interest also called for a stay, in light of the possibility that appellee might attack persons other than his wife.

We do not regard the stay as unconstitutional. In Gerstein v. Pugh, 420 U.S. 103, 120-23, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court ruled that the government could jail persons before criminal trials merely upon a nonadversarial showing of probable cause. The Mental Health Commission hearing conducted under §§ 21-542(a) and 21-543 contains greater procedural protections, and permits detention only upon a finding that the respondent is mentally ill and likely to endanger himself or others. In this noncriminal context, the Commission’s findings certainly are adequate from a constitutional standpoint to justify detention pending an appeal as well as before a trial. Cf. Kendall v. True, 391 F.Supp. 413, 420 (W.D.Ky.1975) (petition alleging probable cause that respondent is dangerous to himself or others and that he lacks the capacity to authorize his own hospitalization is a constitutionally adequate basis for detention before a hearing)-

There is, in addition, ample precedent for staying the release of persons who have been declared improperly confined while the adverse party takes an appeal. In Breed v. Jones, supra, 421 U.S. at 541, 95 S.Ct. 1779, the Supreme Court made no objection to the Ninth Circuit’s stay of its order granting a writ of habeas corpus. The United States Court of Appeals for this circuit similiarly has stayed the release of a person it held to have been wrongfully committed. United States v. Wright, 167 U.S.App.D.C. 309, 313, 511 F.2d 1311, 1315 (1975). The Second Circuit has stayed the release on bail of habeas corpus petitioners pending the state’s appeal from a District Court decision granting the writ. United States ex rel. Rice v. Vincent, 486 F.2d 215 (2d Cir. 1973). The instant stay presents no due process problem.⁹

Nor does the stay deny equal protection. A stay of release potentially would be available in any commitment proceeding under the Hospitalization of the Mentally Ill Act if the Virginia Petroleum. Jobbers Association criteria are satisfied^ The case therefore has no similarity to Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), or Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), both of which invalidated procedural differences in handling separate classes of persons institutionalized for mental illness. The constitutional question in Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), which the Court found substantial enough to warrant an evidentiary hearing, likewise involved procedural discriminations against one class of involuntarily committed persons.

IV

We turn now to the ultimate merits of the appeal. In her opening statement to the jury, appellee’s trial counsel made three representations which appellant claims improperly influenced the jury and necessitated granting the immediate motion for a mistrial. She first stated that the anticipated testimony of the social worker would reveal that Mrs. Lomax had self-serving motives. Appellant objected that any such testimony would be both hearsay and the opinion of a lay witness, and therefore would be inadmissible. We find no impropriety in this aspect of the opening statement. The social worker, though not qualified by the court as an expert in intrafamily dynamics was permitted to describe some of the interaction between ap-pellee and his wife and to state her impressions of their relationship. The outline of the expected proof on this point varied little from the testimony presented and did not exceed the scope of proper opening remarks. Cf. Frazier v. Cupp, 394 U.S. 731, 736, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); United States v. West, 486 F.2d 468, 471-72 (6th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974). See also Robinson v. United States, D.C.App., 361 A.2d 199, 200 (1976).

On the other hand, the two additional disputed comments were improper, and one called for granting the requested mistrial. In the course of her opening statement, counsel asserted that appellee’s proof would show, that he had been tried by a jury some months before in another mental health proceeding and that there the jury had concluded that appellee did not present a danger to himself or to others. Counsel additionally stated that Dr. Smothers, the hospital’s expert witness, was “chagrined” at having failed to secure appellee’s involuntary commitment in that prior trial, and that his persistence in seeking appellee’s hospitalization was the result of his desire to have more control over ap-pellee than was necessary. We have found nothing in the record on which such an argument impugning the motives of the doctor rationally could have been based, and thus we find these statements to be unsupported and unwarranted allegations of bias. See United States v. Jones, 140 U.S.App. D.C. 1, 2 n. 5, 433 F.2d 1107, 1108 n. 5 (1970); Johnson v. United States, 121 U.S.App.D.C. 19, 21, 347 F.2d 803, 805 (1965). However, as the court gave a subsequent cautionary instruction which warned the jurors of the limited nature of opening argument, we would not reverse on the basis of those remarks alone.

However, counsel’s references to the prior civil commitment proceeding and to the jury’s verdict in that trial were so clearly without probative value, and so patently designed to sway the jury, that they constituted grounds for a mistrial. There is no purpose for which evidence of the earlier jury’s conclusions on appellee’s past state of mental health would have been admissible in the instant case. The second jury was concerned exclusively with appel-lee’s current suitability for involuntary hospitalization. Counsel’s introduction of the prior finding in favor of appellee could have served only to confuse and mislead the jurors into surmising that such a finding had a bearing on their task.

Appellee attempts to minimize the impropriety of those remarks by arguing that a separate reference to the prior trial subsequently was made by one of the hospital’s own witnesses, and that the court’s cautionary instruction eliminated any possible prejudice. While a government witness did make passing mention of the prior jury trial, the two instances are not comparable or offsetting. The witness’ remark was inadvertent. He did not discuss the substance of the prior verdict, and his comment followed counsel’s improper statements. In contrast, counsel’s opening statement had represented the earlier verdict as an element of importance to appel-lee’s case. We are not confronted, as was the court in Carsey v. United States, 129 U.S.App.D.C. 205, 392 F.2d 810 (1967), with an offhand mention of the mere existence of a previous trial. Instead, appel-lee’s counsel invited the jury to credit this irrelevant and highly influential information in assessing appellee’s current mental condition. We have no doubt but that had the government alluded to a previous proceeding in which appellee had been adjudged mentally ill and dangerous, and encouraged the jury to take note of that fact, appellee’s counsel properly would cite such conduct as grounds for a mistrial.¹⁰ A patient’s attorney is not free to follow a more lenient standard of conduct. Cf. Carsey v. United States, supra, at 213-14, 392 F.2d at 818-19 (Tamm, J., dissenting).

The trial court’s cautionary instruction which was given at the close of appellee’s opening statement did not cure the jury’s exposure to the improper remarks. The court simply admonished the jury that opening statements are not evidence and that “arguments of counsel are just that”. This charge was inadequate to inform the jurors of the incompetence of the “evidence” which was revealed or of their consequent obligation to disregard it. We conclude that the second jury was irreparably influenced by its knowledge of the first jury’s verdict. The remarks were directed improperly toward influencing the jury’s deliberations on the ultimate issue in the proceeding, i. e., appellee’s present dangerousness to himself or others, and hence cannot be held to be harmless. Accordingly, the judgment is reversed and the case is remanded for a new trial.¹¹

Reversed and remanded.

1 . Appellee had been admitted to Saint Eliza-beths Hospital on five earlier occasions. The first period of institutionalization, from August 1961 to March 1962, ended when ap-pellee took an unauthorized leave. (During that period he displayed symptoms of catatonic schizophrenia.) He was readmitted in April 1968, and discharged in November 1972. He again was admitted to Saint Elizabeths in December 1973, and remained until February 1975. One month later, he was readmitted, but was released in June after a jury trial. He returned voluntarily, one day later, after he was unable to return to his former apartment which his wife had vacated. He was released in July. The confinement with which this proceeding is concerned commenced in August 1975.

2 . Notwithstanding ¡the vigor of our colleague’s dissenting opinion, there is no dispute as to the fact that appellee suffers from an acute mental illness. His able counsel’s principal dissatisfaction with his .treatment appears to arise from the fact that, for reasons not of record, a foster care home placement for him has not been achievable. That being the case, total freedom — which the record indicates appellee is not presently equipped to handle— or hospitalization are the available alternatives. (We have been advised informally, however, that appellee has received some periods of leave from the hospital since oral argument.)

3 . The major portion of the dissent reflects disagreement with the earlier actions of the motions division in granting a stay, which continued appellee’s emergency hospitalization pending the appeal. We deal with this subject in Part III of this opinion, infra.

4 . As appellee points out, Super.Ct.Ment.H.R. 6(c), which provides for notification of the right to appeal from an adverse order in a civil commitment proceeding, mandates such notification only to the respondent-patient. We do not think that this rule, directing to whom notification must be given, is disposi-tive of the question of who may appeal. The government may be presumed to be knowledgeable as to its legal remedies, while it is appropriate to require that a respondent be formally advised of his.

5 . It would be possible to make a narrower, hypertechnical interpretation of the concept of an aggrieved party, but we decline to do so. See Application of Richmond County Society for the Prevention of Cruelty to Children, 11 App.Div.2d 236, 204 N.Y.S.2d 707 (1960), affd, 9 N.Y.2d 913, 217 N.Y.S.2d 86, 176 N.E.2d 97 (3 of 7 judges dissenting on this point), appeal dismissed and eert. denied sub nom. Staten Island Mental Health Society, Inc. v. Richmond County Society for the Prevention of Cruelty to Children, 368 U.S. 290, 82 S.Ct. 375, 7 L.Ed.2d 336 (1961) (charity which unsuccessfully sought funds of another charity under the cy pres doctrine upon the latter’s dissolution was not aggrieved by the judgment and therefore could not appeal).

6 . The double jeopardy clause is directed against multiple criminal prosecutions, not against government appeals. United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). However, within such a context, where a government appeal would require a new trial if successful, it is that clause which acts as the constitutional impediment to the initiation of appellate review by the government. See United States v. Jenkins, 420 U.S. 358, 369, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).

7 . We recognize that the repetitious commencement of proceedings might reach a level of oppressiveness which would he violative of due process rights. See Gomes v. Gaughan, 471 F.2d 794, 797 (1st Cir. 1973); People v. Sansone, 18 Ill.App.3d 315, 309 N.E.2d 733, 742 (1974).

8 . After the stay had been granted (by another division of the court), a motion for reconsideration thereof was filed. This decision moots that pending motion.

9 . A number of cases recently have discussed the due process requirements for commitment proceedings. Compare, e. g., Doremus v. Farrell, 402 F.Supp. 509 (D.Neb.1975); Bartley v. Kremens, 402 F.Supp. 1039 (E.D.Pa. 1975); prof), juris, noted, 424 U.S. 964, 96 S.Ct. 1457, 47 L.Ed.2d 731 (1976); Kendall v. True, supra, Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974); Bell v. Wayne County General Hospital, 384 F.Supp. 1085 (E.D.Mich.1974), and Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), on remand, 379 F.Supp. 1376, vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), with Logan v. Arafeh, 346 F.Supp. 1265 (D.Conn. 1972), aff’d, 411 U.S. 911, 93 S.Ct. 1556, 36 L.Ed.2d 304 (1973). See Humphrey v. Cady, 405 U.S. 504, 510-12, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). They do not, however, consider the question of appellate review which is before us. Cf. Annot. 34 A.L.R.3d 652, § 17 at 705 (1970) (involving sexual psychopath proceedings).

10 . See Carsey v. United States, supra, at 212, 392 F.2d at 817-18 (Tamm, J., dissenting).

11 . The new trial should be held at the earliest feasible time, since appellee may continue to be hospitalized pending its completion.