Rudolph N. Thornton v. Honorable Howard F. Corcoran ( 1969 )

BURGER, Circuit Judge,

dissenting:

I dissent from the foregoing order (which was entered during my absence and without notice to me). I dissent because this court is totally without lawful power or authority to order or direct St. Elizabeths Hospital on the matter of holding or not holding a staff conference; or on how it is to conduct the internal diagnostic processes on which the Superintendent may rely in carrying out his statutory duties relating to the determination of competency to stand trial.

Congress has by statute¹ vested exclusively in the Superintendent of St. Elizabeths Hospital the duty to certify whether an accused is competent to stand trial; the District Court is not bound by that certification; criteria for that determination are not in issue. The certifying power is vested in an official person, the Superintendent, not his staff. The diagnostic process and internal administrative steps by which the Superintendent informs himself in the performance of his statutory duty is a medical matter totally beyond the power and surely beyond the competence of judges of this court or any court. The Superintendent of St. Elizabeths may reach his conclusions by reading the medical record, by personally interviewing the accused, by consulting with staff-members or any other means which in his professional judgment as a physician seem proper.² Indeed a very large number of such certifications are made by the Superintendent without any staff conference being held.³ His certificate can, of course, be challenged and he can be cross-examined in the District C'ourt hearing; any alleged infirmities in his diagnostic process may be explored.

To me it is not simply irregular for judges to instruct physicians on how they should make a diagnosis; in my view the order entered by Judges Bazelon and Robinson on October 17, 1968 commanding the Superintendent of St. Elizabeths Hospital to hold a conference and make a tape recording of that .conference was a flagrant abuse of judicial power.⁴ Except for the fact that the issue was probably moot as a practical matter when that order was entered ⁵ and is perhaps legally moot now,⁶ I would move this court, en bane, to vacate and set aside the order of October 17, 1968.

All of the orders entered in this case arise out of Petitioner’s desire to have his counsel present at the Medical .Staff Conference and he relies heavily on Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967). It is clear, however, that those decisions and other right-to-confrontation cases are totally inapposite. Noting that “the requirements of due process frequently vary with the type of proceeding involved” the Supreme Court, in Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513 (1960), concluded that the right to confrontation did not apply to investigations conducted by the Civil Rights Commission. As in Hannah, the Medical Staff Conference here

is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone’s civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short * * * (it) does not and cannot take any affirmative action which will affect an individual’s legal rights. The only purpose of its existence is to find facts * * *.

* * * * * * * *■* *

Cl] t investigates and reports leaving affirmative action, if there is to be any, to other governmental agencies where there must be action de novo.

Id. at 441, 452, 80 S.Ct. at 1514, 1520 (Emphasis supplied.)

There is no legal basis for equating a Medical Staff Conference to a “confrontation” either in the traditional sense or within the meaning of Wade-Gilbert. Those cases apply only to critical prosecutive stages. The vice of requiring a sensitive diagnostic process to be conducted as though it were an adversary matter seems too obvious to need discussion. The value of that process is undermined by anything which inhibits the free exchange of views; the integrity of the process makes privacy imperative. The presence of a lawyer for the patient at a staff conference would obviously inhibit the free expression and exchange of ideas which normally occurs. The check on the processes by which the .Superintendent of the Hospital reaches his conclusion is the power to cross examine him.

The legal method of inquiry is unsuited to the medical investigation to be conducted. Medical diagnostic procedures should not be inhibited by non-medical notions of procedural-“due process.” Indeed it is far more consonant with the sympathetic relationship existing between Doctor and patient that the medical inquiry be divested as much as possible of an adversary character. Our approach should encourage an attitude of cooperation rather than partisanship; emphasis must be on the common pursuit for an objective, uninhibited inquiry, uncluttered by the techniques and devices of the courtroom.

1 . 24 D.C.Code § 301(b) (1967).

2 . The internal diagnostic process is not dissimilar to the institutional decisions rendered by administrative agencies which have consistently withstood Constitutional attack. E.g., United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed.2d 1429 (1941) ; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938) ; cf. Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 80 L.Ed. 1288 (1936). In the Morgan cases the Supreme Court insulated the administrative process from indiscreet visitations by the unfriendly eye. The principle of the Morgan cases applies with added force here since a staff conference is not in any sense a hearing of an adjudicatory nature. See also Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).

3 . It seems clear, and indeed there have been no express contentions to the contrary, that the holding of a medical staff conference at St. Elizabeths Hospital lies entirely within the discretion of the hospital Superintendent and that the need for such a conference has traditionally been determined on a case by case basis. “Of some 570 reports made to the courts of the District of Columbia since January 1, 1968 with respect to persons committed under 24 D.C.Code 301, 300 reports were made after a staff conference and approximately 270 were made without a staff conference.” (Supplemental Memorandum for Saint Elizabeths Hospital, Amicus Curiae, at 6; accord, id. n. 4).

4 . The Court’s order was tantamount to a writ of mandamus since it commanded the District Court to direct the hospital to conduct a medical staff conference. “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction * * Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). The issuance by an appellate court of a mandamus against a District Court is erroneous in the absence of any substantial allegation of a usurpation or flagrant abuse of power. Compare Will v. United States, 389 U.S. 90, n. 10, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), with Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234 (1964). “The writ of mandamus is not to be used when ‘the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.’ ” Id. at 112, 85 S.Ct. at 239, quoting Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 100 L.Ed. 1377 (1956). “(T)he fact this case involves a criminal prosecution has contextual relevance” which further militates against the use of mandamus. Will v. United States, supra, 389 U.S. at 100, n. 10, 88 S.Ct. at 276 n. 10. Of equal importance is that courts will not interfere by way of mandamus except to enforce merely ministerial acts required by law to be performed. See note 3 supra.

5 . On July 30, 1968 the Superintendent of St. Elizabeths Hospital fulfilled his statutory duty under 24 D.C.Code § 301 (b) (1967) when he filed a certificate advising that the Defendant was competent to stand trial.

6 . We have been informed that, pursuant to this Court’s most recent order, St. Elizabeths Hospital on October 24, 1968, at 10:30 A.M. held a medical staff conference which was recorded on audio tape. Supplemental Memorandum for St. Elizabeths Hospital, Amicus Curiae, at 2.