Fisher v. United States

This writ of certiorari brings here for review the sentence of death imposed upon petitioner by the District Court of the United States for the District of Columbia after a verdict of guilty on the first count of an indictment which charged petitioner with killing by choking and strangling Catherine Cooper Reardon, with deliberate and premeditated malice. The United States Court of Appeals for the District of Columbia affirmed the judgment and sentence of the District Court. 149 F.2d 28.

The errors presented by the petition for certiorari and urged at our bar were, in substance, that the trial court refused to instruct the jurors that they should consider the evidence of the accused's psychopathic aggressive tendencies, low m otional response and borderline mental deficiency to determine whether he was guilty of murder in the first or in the second degree. The aggregate of these factors admittedly was not enough to support a finding of not guilty by reason of insanity.1 Deliberation and premeditation are necessary elements of first degree murder.

Considerations as to the exercise of authority by this Court over the courts of the District of Columbia in the interpretation of local criminal statutes induced us to grant the writ in view of the issue presented. Judicial Code, Section 240(a), 28 U.S.C.A. § 347(a).

The homicide took place in the library building on the grounds of the Cathedral of Saint Peter and Saint Paul, Washington, D.C., between eight and nine o'clock, a.m., on March 1, 1944. The victim was the librarian. She had complained to the verger a few days before about petitioner's care of the premises. The petitioner was the janitor. The verger had told him of the complaint. Miss Reardon and Fisher were alone in the library at the time of the homicide. The petitioner testified that Miss Reardon was killed by him immediately following insulting words from her over his care of the premises. After slapping her impulsively, petitioner ran up a flight of steps to reach an exit on a higher level but turned back down, after seizing a convenient stick of firewood, to stop her screaming. He struck her with the stick and when it broke choked her to silence. He then dragged her to a lavatory and left the body to clean up some spots of blood on the floor outside. While Fisher was doing this cleaning up, the victim 'started hollering again.' Fisher then took out his knife and stuck her in the throat. She was silent. After that he dragged her body down into an adjoining pump pit, where it was found the next morning. The above facts made up petitioner's story to the jury of the killing.

It may or may not have been accepted as a whole by the jury. Other evidence furnishes facts which may have led the jury to disbelieve some of the details of accused's version of the tragedy. In his original confession, the accused made no reference to Miss Reardon's use of insulting words. In his written confession, they were mentioned. In his testimony their effect upon him was amplified. There are minor variations between Fisher's written confession and his testimony. In the written confession Fisher admitted that his main reason for assaulting Miss Reardon was because she reported him for not cleaning the library floor. The Deputy Coroner said the knife wound was not deep, 'just went through the skin.'

The effort of the defense is to show that the murder was not deliberate and premeditated; that it was not first but second degree murder. A reading of petitioner's own testimony, summarized above, shows clearly to us that there was sufficient evidence to support a verdict of murder in the first degree, ifp etitioner was a normal man in his mental and emotional characteristics. Cf. Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636, 638. But the defense takes the position that the petitioner is fairly entitled to be judged as to deliberation and premeditation, not by a theoretical normality but by his own personal traits. In view of the status of the defense of partial responsibility in the District and the nation no contention is or could be made of the denial of due process. It is the contention of the defense that the mental and emotional qualities of petitioner were of such a level at the time of the crime that he was incapable of deliberation and premeditation although he was then sane in the usual legal sense. He knew right from wrong. See The M'Naghten Rules, 10 C. and F. 200, 210. His will was capable of controlling his impulses. Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654. Testimony of psychiatrists to support petitioner's contention was introduced. An instruction charging the jury to consider the personality of the petitioner in determining intent, premeditation and deliberation was sought and refused.

From the evidence of the psychiatrists for the defense, the jury might have concluded the petitioner was mentally somewhat below the average with minor stigmata of mental subnormalcy. An expert testified that he was a psychopathic personality2 of a predominantly aggressive type. There was evidence that petitioner was unable by reason of a deranged mental condition to resist the impulse to kill Miss Reardon. All evidence offered by the defense was accepted by the trial court. The prosecution had competent evidence that petitioner was capable of understanding the nature and quality of his acts. Instructions in the usual form were given by the court submitting to the jury the issues of insanity, irresistible impulse, malice, deliberation and premeditation. Under these instructions, set out below, the jury could have determined from the evidence that the homicide was not the result of premeditation and deliberation.3

Although no objection as to the form of these instructions is urged here by counsel for petitioner, this Court in a criminal case may notice material error within its power to correct even though that error is not specifically challenged and certainly should do so, even in cases from the District of Columbia, where life is at stake. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345; compare Rules 54(a)(1), 59, 52(b), Rules of Criminal Procedure. It is suggested by a dissent that these instructions, just quoted in note 3, did not bring sharply and vividly to the jury's mind' the issue of premeditation; that they 'consisted of threadbare generalities, a jumble of empty abstractions.' We think the contention advanced is that the district judge should have specifically referred to the words of insult or have elaborated upon the details of the evidence in his charge with respect to premeditation. With such a requirement for instructions we do not agree. The evidence furnishes the factual basis for a juy § conclusion as to guilt and its degree, guided by the instructions of the court as to the law.4 Premeditation and deliberation were defined carefully by the instructions. The contention of the accused that there was no deliberation or premeditation was called distinctly to the jury's attention. The necessary time element was emphasized and the jury was told that premeditation required a preconceived design to kill, a 'second thought.' With the evidence and the law before them the jury reached its verdict. The instructions, we think, were clear, definite, understandable and applicable to the facts developed by the testimony. We see no error in them.

The error claimed by the petitioner is limited to the refusal of one instruction. The jury might not have reached the result it did if the theory of partial responsibility5 for his acts which the petitioner urges had been submitted. Petitioner sought an instruction from the trial court which would permit the jury to weigh the evidence of his mental deficiencies, which were short of insanity in the legal sense, in determining the fact of and the accused's capacity for premeditation and deliberation.6 The appellate court approved the refusal upon the alternate ground that an accused is not entitled to an instruction upon petitioner's theory.7 This has long been the law of the District of Columbia.8 This is made abundantly clear by United States v. Lee, 4 Mackey 489, 495, 54 Am.Rep. 293. This also was a murder case in which there was evidence of mental defects which did not amount to insanity. An instruction was asked and denied in the language copied in the margin.9

It is suggested that the Lee case was decided when murder under the District law was not divided into degrees and that therefore it was not proper to instruct as to the accused's mental capacity to premeditate and deliberate while now it would be. We do not agree. The separation of the crime of murder into the present two degrees by the code of law for the District of Columbia, March 3, 1901, 31 Stat. 1189, 1321, is not significant in analyzing the necessity for the proposed submission of the evidence concerning petitioner's mental and emotional characteristics to the jury by specific instruction. The reason for the change, doubtless, lay in the wide range of atrocity with which the crime of murder might be committed so that Congress deemed it desirable to establish grades of punishment. Cf. Davis v. People of Territory of Utah, 151 U.S. 262, 267, 270, 14 S.Ct. 328, 329, 331, 38 L.Ed. 153. Homicide, at common law, the rules of which were applicable in the District of Columbia, had degrees. Murder was 'with malice aforethought, either express or implied.' Blackstone, Book IV (Lewis ed., 1902), p. 195; Hill v. United States, 22 App.D.C. 395, 401; Hamilton v. United States, 26 App.D.C. 382, 396, 391; Burge v. United States, 26 App.D.C. 524, 527—530. Manslaughter was unlawful homicide without malice. Blackstone, Book IV, p. 191. As capacity of a defendant to have malice would depend upon the same kind of evidence and instruction which is urged here,10 it cannot properly be said that the separation of murder into degrees introduced a new situation into the law of the District of Columbia.11 As shown by the action of the District of Columbia courts in this case and the other District cases cited in this and the preceding paragraph, we think it is the established law in the District that an accused in a criminal trial is not entitled to an instruction based upon evidence of mental weakness, short of legal insanity, which would reduce his crime from first to second degree murder.

Petitioner urges forcefully that mental deficiency which does not sho legal irresponsibility should be declared by this Court to be a relvant factor in determining whether an accused is guilty of murder in the first or second degree, upon which an instruction should be given, as requested. It is pointed out that the courts of certain states have adopted this theory. Others have rejected it.12 It is urged, also, that since evidence of intoxication to a state where one guilty of the crime of murder may not be capable of deliberate premeditation requires in the District of Columbia an instruction to that effect (McAffee v. United States, 72 App.D.C. 60, 111 F.2d 199, loc. cit. 205), courts from this must deduce that disease and congenital defects, for which the accused may not be responsible, may also reduce the crime of murder from first to second degree. This Court reversed the Supreme Court of the Territory of Utah for failure to give a partial responsibility charge upon evidence of drunkenness in language which has been said to be broad enough to cover mental deficiency. Hopt v. People, 104 U.S. 631, 634, 26 L.Ed. 873.13 It should be noted, however, that the Territory of Utah had a statute specifically establishing such a rule.14 deliberate brief for the collection of cases. Those accepting the petitioner's theory are: Andersen v. State, 1876, 43 Conn. 514, 526, 21 Am.Rep. 669; State v. Johnson, 1873, 40 Conn. 136, 143, 144; Fisher v. People, 1860, 23 Ill. 283, 295; Donahue v. State, 1905, 165 Ind. 148, 156, 74 N.E. 996; Aszman v. State, 1889, 123 Ind. 347, 356, 24 N.E. 123, 8 L.R.A. 33; Rogers v. Commonwealth, 1894, 96 Ky. 24, 28, 27 S.W. 813; Mangrum v. Commonwealth, 1897, 39 S.W. 703, 19 Ky. Law Rep. 94; Commonwealth v. Trippi, 1929, 268 Mass. 227, 231, 167 N.E. 354; State v. Close, 1930, 106 N.J.L. 321, 324, 148 A. 768; State v. Schilling, 1920, 95 N.J.L. 145, 148, 112 A. 400; People v. Moran, 1928, 249 N.Y. 179, 180, 163 N.E. 553; Jones v. Commonwealth, 1874, 75 Pa. 403, 408, 410; State v. Green, 1931, 78 Utah 580, 602, 6 P.2d 177; State v. Anselmo, 1915, 46 Utah 137, 145, 157, 148 P. 1071; Dejarnette v. Commonwealth, 1881, 75 Va. 867, 880, 881; Hempton v. State, 1901, 111 Wis. 127, 135, 86 N.W. 596.

No one doubts that there are more possible classifications of mentality than the sane and the insane . White, Insanity and the Criminal Law 89. Criminologists and psychologists have weighed the advantages and disadvantages of the adoption of the theory of partial responsibility as a basis of the jury's determination of the degree of crime of which a mentally deficient defendant may be guilty.15 Congress took a forward step in defining the degrees of murder so that only those guilty of deliberate. and premeditated malice could be convicted of the first degree. It may be that psychiatry has now reached a position of certainty in its diagnosis and prognosis which will induce Congress to enact the rule of responsibility for crime for which petitioner contends. For this Court to force the District of Columbia to adopt such a requirement for criminal trials would involve a fundamental change in the common law theory of responsibility.

We express no opinion upon whether the theory for which petitioner contends should or should not be made the law of the District of Columbia. Such a radical departure from common law concepts is more properly a subject for the exercise of legislative power or at least for the discretion of the courts of the District. The administration of criminal law in matters not affected by Constitutional limitations or a general federal law is a matter peculiarly of local concern. Compare McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, with Ashcraft v. Tennessee, 322 U.S. 143, 156, 64 S.Ct. 921, 927, 88 L.Ed. 1192. This Court has in a less important matter undertaken to adjust by decision an outmoded rule of the common law to modern conditions. But when that step was taken, it was declared that 'experience has clearly demonstrated the fallacy or unwisdom of the old rule.' Funk v. United States, 290 U.S. 371, 381, 54 S.Ct. 212, 215, 78 L.Ed. 369, 93 A.L.R. 1136. See Weiler v. United States, 323 U.S. 606, 609, 65 S.Ct. 548, 550, 89 L.Ed. 495, 156 A.L.R 496.

Matters relating to law enforcement in the District are entrustd to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed.

Where the choice of the Court of Appeals of the District of Columbia in local matters between conflicting legal conclusions seems nicely balanced, we do not interfere. District of Columbia v. Pace, 320 U.S. 698, 702, 64 S.Ct. 406, 408, 88 L.Ed. 408; Busby v. Electric Utilities Employees Union, 323 U.S. 72, 74, 75, 65 S.Ct. 142, 143, 144, 89 L.Ed. 78. The policy of deferring to the District's courts on local law matters is reinforced here by the fact that the local law now challenged is long established and deeply rooted in the District.

Affirmed.

Mr. Justice JACKSON took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER dissenting.

A shocking crime puts law to its severest test. Law triumphs over natural impulses aroused by such a crime only if guilt be ascertained by due regard for those indispensable safeguards which our civilization has evolved for the ascertainment of guilt. It is not enough that a trial goes through the forms of law. Especially where life is at stake it is requisite that the trial judge should so guide the jury that the jurors may be equipped to determine whether death should be the penalty for conduct. Of course society must protect itself. But surely it is not self-protection for society to take life without the most careful observance of its own safeguards against the misuse of capital punishment.

This case has been much beclouded by laymen's ventures into psychiatry. We are not now called upon to decide whether the antiquated tests set down more than a hundred years ago regarding mental responsibility for crime1 are still controlling or whether courts should choose from among the conflicting proposals of scientific specialists.2 This is not the occasion to decide whether the only alternative is between law which reflects the most advanced scientific tests and law remaining a leadenfooted laggard. The case turns on a much simpler and wholly conventional issue. For the real question, as I see it, is whether in view of the act of Congress defining murder in the first degree for prosecutions in the District and in light of the particular circumstances of this case, the trial court properly sent the case to the jury. That is a very different question from whether the court's charge was unimpeachable as an abstract statement of law. For Fisher is not the name of a theoretical problem. We are not here dealing with an abstract man who killed an abstract woman under abstract circumstances and received an abstract trial on abstract issues. Murder cases are apt to be peculiarly individualized, and this case has its own distinctive features. It is in the light of these that we must decide whether Fisher's death sentence should legally stand.

According to the more enlightened rule appellate courts may review the facts in a capital case.3 Were such the scope of our review of death sentences, I should think it would be hard to escape what follows as the most persuasive reading of the record.

Fisher had learned from his boss of Miss Reardon's complaint about the slackness of his work. On the fatal morning, Miss Reardon told Fisher that he was not doing the work for which he was being paid, and in the course of her scolding called him a 'black nigger.' This made him angry—no white person, he claimed, had ever called him that—and he struck her. She ran screaming towards the window in the back of the room. Fisher ran out of the room and up the stairs. Her screaming continued. At the top of the stairs he saw a pile of wood lying by the fireplace. He seized a piece of wood, ran down the stairs and struck her on the head. The stick broke and he seized her by the throat. She continued to scream until she went limp. He then dragged her to the lavatory and left her there while he went back to clean up the spots of blood. She recovered sufficiently to scream again, and he returned to the lavatory and cut her slightly with a knife he carried in his pocket. The importance of the screaming is a key to the tragedy. It is difficult to disbelieve Fisher's account that he never wanted to kill Miss Reardon but wanted only to stop her screaming, which unnerved him.

'She ran out from behind her desk, down toward the back, screaming.' 'The screaming seemed to have gotten on my nerves.'

'I was running up on the steps, with her all the time screaming.'

'She was still screaming and I began choking her then.'

'I was just trying to keep her from making noise.'

'* * * she started hollering and I tried to stop her from hollering.'

'Then I began choking her because she was still hollering.'

'* * * I did not strike her any more after the noise had ceased.'

'* * * she started hollering again.'

'She kept hollering, seemed like to me.'

'My idea was just trying to stop her from hollering, is all I can think about.'

'After that she stopped hollering.'

The next day he started to go to the Cathedral to work as usual. He made to attempts to enter the Cathedral grounds. About the first, he said he got 'nervous and shaky, and (he) couldn't go in there.' Later he 'kept thinking about what (he) had done to her. (He) didn't know whether she was dead or alive. (He) was afraid to go up there and tell them that (they) had had an argument or fight.' When apprehended by two detectives he said, 'I had some trouble with a lady out at the Cathedral.'

The evidence in its entirety hardly provides a basis for a finding of premeditation. He struck Miss Reardon when she called him 'black nigger.' He kept on when her screaming frightened him. He did not know he had killed her. There is not the slightest basis for finding a motive for the killing prior to her use of the offensive phrase. Fise r, to be sure, had Miss Reardon's ring in his possession. But it came off in his hand while he was dragging her, and he put it away when he reached home to conceal its possession from his wife. He did not run away and he cleaned up the blood 'because (he) did not want to leave the library dirty, leave awful spots on the floor, (he) wanted to clean them up.' He treated the spots on the floor not as evidence of crime but as part of his job to keep the library clean. Fisher was curiously unconnected with the deed, unaware of what he had done. His was a very low grade mentality, unable to realize the direction of his action and its meaning. His whole behavior seems that of a man of primitive emotions reacting to the sudden stimulus of insult and proceeding from that point without purpose or design. Premeditation implies purpose and purpose is excluded by instantaneous action. Fisher's response was an instinctive response to provocation, and premeditation means nothing unless it precludes the notion of an instinctive and uncalculated reaction to stimulus. Accordingly, if existing practice authorized us to review the facts in a capital case I should be compelled to find that the ingredients of murder in the first degree were here lacking. I would have to find that the necessary premeditation and deliberation for the infliction of a death sentence were wanting, as did the New York Court of Appeals in a case of singularly striking similarity. People v. Caruso, 246 N.Y. 437, 159 N.E. 390. It is significant that the Court of Appeals for the District of Columbia has heretofore deemed it within its duty to examine the evidence in order to ascertain whether a finding of premeditation and deliberation was justified. Bullock v. United States, 74 App.D.C., 220, 122 F.2d 213.

But while it is not now this Court's function to interpret the facts independently,4 the jury, under guidance appropriate for a murder case, might well have so interpreted them because the facts are persuasively so interpretable. If, under adequate instructions, it could have so found, the homicide falls outside the requirements for a finding of murder in the first degree. Congress in 1901 enacted a code for the District in which it joined the growing movement of dividing murder into degrees.5 Congress confined the death sentence to killing by premeditation; it required designed homicide, previous deliberation that life was to be taken before the United States would take life in retribution.6 The division of murder into degrees arose from the steadily weakened hold of capital punishment on the conscience of mankind. See Calvert, Capital Punishment in the Twentieth Century, 5th Ed., 1936; Report from the Select Committee of the House of Commons on Capital Punishment, and Minutes of Evidence (1930). The crime of murder was divided into two classes, in some States very early,7 in recognition of the fact that capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation. It is this consideration that has led most of the States to divide common law murder into two crimes, and Congress followed this legislation. See Michael and Wechsler, A Rationale of the Law of Homicide (1937) 37 Col.L.Rev. 701, 703-704; Michael and Wechsler, Criminal Law and Administration (1940) 1269 et seq.

The bite of law is in its enforcement. Ths is especially true when careful or indifferent judicial administration has consequences so profound as does the application of legislation dividing murder into first and second degrees—consequences that literally make the difference between life and death. This places the guiding responsibility upon the trial court in no wise restricted by the course pursued by the defense. The preoccupation at the trial, in the treatment of the conviction by the court below and by the arguments at the bar of this Court, was with alluring problems of psychiatry. Throughout this melancholy affair the insistence was on claims of Fisher's mental deficiencies and the law's duty to take into consideration the skeptical views of modern psychiatry regarding the historic legal tests for insanity. I cannot but believe that this has diverted attention from the more obvious and conventional but controlling inquiry regarding the absence or presence of the requisite premeditation, under the circumstances of this case.

That the charge requested by the defendant and denied did not go to this issue of premeditation unambiguously but in an awkward and oblique way did not lessen the responsibility of the trial judge to bring this issue—it was the crucial issue—sharply and vividly to the jury's mind. If their minds had been so focused, the jury might well have found that the successive steps that culminated in Miss Reardon's death could not properly be judged in isolation. They might well have found a sequence of events that constituted a single, unbroken response to a provocation in which no forethought, no reflection whatever, entered. A deed may be gruesome and not be premeditated. Concededly there was no motive for the killing prior to the inciting 'you black nigger.' The tone in which these words were uttered evidently pulled the trigger of Fisher's emotions, and under adequate instructions the jury might have found that what these words conveyed to Fisher's ears unhinged his self-control. While there may well have been murder, deliberate premeditation, for which alone Congress has provided the death sentence, may have been wanting.8 'While it is unlikely that the jury would return a verdict of murder in the first degree unless satisfied that the defendant, at the time he committed the offense was capable of entertaining the malicious intent, we cannot, in a case of this kind, speculate as to what considerations entered into their verdict.' Sabens v. United States, 40 App.D.C. 440, 444. The same guiding consideration for reviewing a death sentence was pithily expressed the other day by the present Lord Chief Justice of England: 'It is impossible to say what verdict would have been returned had the case been left to the jury with a proper direction.' Kwaku Mensah v. Rex, (1946) A.C. 83, 94. In that case, the Privy Council found inadequacy in the direction given by the trial court on considerations that were not mentioned in the courts below nor raised by the appellant. Neither should we permit a death sentence to stand that raises such doubts as does Fisher's conviction on this record.

As I have already indicated, I do not believe that the facts warrant a finding of premeditation. But, in any event, the justification for finding first-degree murder premeditation was so tenuous that the jury ought not to have been left to founder and flounder within the dark emptiness of legal jargon.9 The instructions to the jury on the vital issue of premeditation consisted of threadbare generalities, a jumble of empty abstractions equally suitable for any other charge of murder with none of the elements that are distinctive about this case, mingled with talk about mental disease. What the jury got was devoid of clear guidance and illumination. Inadequate direction to a jury may be as fatal as misdirection. The observations made by this Court in a civil case are especially pertinent to the duty of a federal judge in a trial for murder: '* * * it is the right and duty of the court to aid (the jury) * * * by directing their attention to the most important facts, * * * by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. * * * Constituted as juries are, it is frequently impossible for them to discharge their function wisely and well without this aid. In such cases, chance, mistake, or caprice, may determine the result.' Nudd v. Burrows, 91 U.S. 426, 439, 23 L.Ed. 286.

Only the other day we exercised our supervisory responsibility over the lower federal courts to assure against the possibility of unfairness in the operation of the jury system in ordinary civil suits. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984. By how much more should we guard against a fatal mishap where life is at stake. This Court in reviewing a conviction for murder in the federal courts ought not to be behind the House of Lords and the Privy Council in rejecting strangling technicalities. See Mancini v. Director of Public Prosecutions, (1942) A.C. 1, 7-8;10 Kwaku Mensah v. Rex, supra. It should be guided, as was the Privy Council in the case of a lowly West African villager, by broad considerations of justice so as to avoid the mistake of affirming a death sn tence which the jury may well not have returned had they had a direction that would have informed their understanding and guided their judgment. In the circumstances of this case failure to charge the jury adequately was to deny Fisher the substance of a fair trial.

Men ought not to go to their doom because this Court thinks that conflicting legal conclusions of an abstract nature seem to have been 'nicely balanced' by the Court of Appeals for the District of Columbia. The deference which this Court pays to that Court's adjudications in ordinary cases involving issues essentially of minor or merely local importance seems out of place when the action of this Court, no matter how phrased, sustains a death sentence at the seat of our Government as a result of a trial over which this Court, by direction of Congress, has the final reviewing power. This Court cannot escape responsibility for the death sentence if it affirms the judgment. One can only hope that even more serious consequences will not follow, which would be the case if the Court's decision were to give encouragement to doctrines of criminal law that have only obscurantist precedents of the past to recommend them. Moreover, a failure adequately to guide a jury on a basic issue, such as that of premeditation on a charge of murder in the first degree, does not reflect a 'long established' practice, and one hopes will not become 'deeply rooted,' in the District.11 Quite the contrary standard is indicated by an earlier opinion of the Court of Appeals. See McAfee v. United States,