United States v. Clifford Bailey, United States of America v. Ronald Clifton Cooley, United States of America v. Ralph Walker

Appellants in these criminal jury cases were convicted of violating18 U.S.C. § 751(a) (1976)1 by escaping "from the custody of the Attorney General" when they departed from the New Detention Center of the District of Columbia Jail ("Northeast One") in the early morning hours of August 26, 1976. Appellants Bailey and Walker had been brought from federal prisons where they were serving sentences for federal crimes to the D.C. Jail pursuant to writs of Habeas corpus ad testificandum issued by the Superior Court of the District of Columbia2; appellant Cooley was serving a sentence in the D.C. Jail for a federal crime. Appellants raise various issues, both individually and in common, but only two require extended discussion3: whether the trial court erred in refusing to let the jury consider whether evidence of threats, assaults, and conditions in the jail either negated the intent required to commit the crime of escape or provided a defense of duress, and whether the prosecution's evidence and the trial court's instructions were adequate on the issue of whether appellants were in the custody of the Attorney General by virtue of the convictions alleged in the indictment. We conclude that appellants are entitled to a new trial because the trial court did not properly instruct the jury as to what constitutes an "escape" and excluded relevant evidence from the jury's consideration. We also find that the trial court's instructions on the custody element were in some respects confusing and potentially misleading, but these problems will presumably be corrected in the new trial.

* Appellants first contend that the trial judge erred in refusing to let the jury consider certain allegedly exculpatory evidence. The evidence in question sought to establish that there were frequent fires in the D.C. Jail where appellants were confined, set by both inmates and guards, and often allowed to burn while the inmates suffered from lack of proper ventilation,4 that appellants had been threatened with physical violence by guards,5 that appellants Bailey and Cooley had actually been beaten by guards,6 that appellant Walker had epilepsy and had received inadequate medical treatment for his condition,7 and that appellant Cooley had been forced by his co-appellants to leave the jail.8 Appellants argued in the District Court and assert again on appeal that this evidence was relevant either as negating the specific intent they claim is required as an element of the crime of escape or as establishing a defense of duress.

The trial court admitted this evidence during the trial, but effectively precluded the jury from considering it with regard to intent by holding that the crime of escape requires only general, rather than specific, intent.9 The court also refused to allow the jury to consider the defense of duress, holding that the duress defense is available only when the person asserting it turns himself in, and that this prerequisite was absent in appellants' cases as a matter of law.10A. Intent

Our consideration of the relevance of the evidence in question to the elements of the crime of escape under 18 U.S.C. § 751(a) leads us to agree with the Seventh Circuit in United States v. Nix, 501 F.2d 516 (7th Cir. 1974), that a great deal of unnecessary confusion has been generated by the use of ill-defined terms and concepts such as "specific" and "general" intent.11 Much of this unhelpful complexity can be avoided by returning to basic principles beginning with a clear definition of the crime of escape and proceeding to consider the proper roles of prosecution, defense, court, and jury in trying escape cases.

Consciously ignoring labels such as "specific" and "general" intent, the court in Nix concentrated on "what constitutes the 'escape' element of the crime." 501 F.2d at 518. Although "escape" is usually treated as a single element of the offense defined in Section 751(a), the word "escape" like many other legal terms12 is not self-defining. A jury needs more instruction than this one word if it is properly to consider whether a defendant has "escaped." The Seventh Circuit found that "(m)ost courts, confronted with evidence that a defendant could not or did not form An intent to leave and not to return, have held such an intent essential to proof of the crime of escape." Id. (emphasis added).13 The court then concluded that this "close to unanimous" approach of the courts was justified by "the desire to have one human element of 'blameworthiness' as a basis for punishment"14 and because "a prisoner who has no intent to escape because he is grossly intoxicated, or thinks his jailer has told him to leave, or mistakes the boundaries of his confinement, or has a gun held to his head by another inmate is not likely to endanger society, as a wilful escapee is." Id. at 519.

On the basis of its review of precedents and policies, the Seventh Circuit defined "escape" for purposes of Section 751(a) as "a voluntary departure from custody with an intent to avoid confinement." Id. Following the Seventh Circuit's analysis, we conclude that an "escape" occurs when a defendant (1) leaves custody (2) voluntarily,15 (3) without permission,16 and (4) with an intent to avoid confinement.17

In order to convict a defendant of escape, the prosecution must prove each of these factors beyond a reasonable doubt. In the ordinary case the prosecution can establish a Prima facie case that a defendant "escaped" by offering evidence that the defendant departed from custody without permission. Absent any additional evidence introduced by the defendant, such a case can be submitted to the jury with the instruction that the jury may infer the defendant's intent from the circumstances.18 The defense has the opportunity, however, to submit additional evidence tending to negate any essential aspect of the offense. For example, a jury can consider whether evidence of jail conditions, threats, and violence such as that presented by appellants in the District Court raises reasonable doubts concerning a defendant's capacity to act "voluntarily," or his intent to avoid confinement.19

The prosecution then has the opportunity to rebut the defense's evidence. The prosecutor can offer evidence of any circumstances or behavior inconsistent with the defendant's exculpatory contentions. Depending on that evidence, a prosecutor may argue that the conditions allegedly necessitating the defendant's departure from custody were relatively mild, that alternative remedies short of escape (E. g., resort to prison authorities or the courts) were available, or that the defendant failed to return voluntarily to custody once the conditions allegedly motivating the escape no longer threatened him. If the defendant takes the stand in his own defense, the prosecutor can inquire why he did not return voluntarily and can test the credibility of his defense by the rigors of cross-examination.

Finally, when instructing the jury on the elements of the offense charged, the judge should direct the jurors' attention to those considerations that require special emphasis. In addition to specifying the major indicia of voluntariness and intent the immediacy, specificity, and severity of any alleged threats or fears, the availability of viable alternatives to unauthorized departure, and the defendant's decision whether and when to return to custody the court should remind the jury of the inevitable difficulties associated with prison discipline20 and of the possible biases of defense and prosecution witnesses testifying with respect to that aspect of the case.21 It is the jury, however, that must make the final determination whether the prosecution has met its burden of proving each of the elements of the crime beyond a reasonable doubt. The court may not, as the District Court did in this case, take upon itself the responsibility for making this determination.

Our analysis of the law of escape indicates that the District Court erred in its definition of the offense and consequently precluded the jury's consideration of evidence that was relevant to an essential element of the crime. The trial judge instructed the jury that a defendant "escaped" if he "without authorization did absent himself from his place of confinement." Tr. 802. Relying on the opinion of the Tenth Circuit in United States v. Woodring, 464 F.2d 1248, 1251 (10th Cir. 1972), the trial judge told the jury that only a "general intent" was required to commit the crime of escape, and that this "means only that a defendant has the purpose to do something, the will to do the act. It means the act was done consciously and not inadvertently or accidentally." Tr. 803. Woodring is weak authority for the proposition that escape under 18 U.S.C. § 751 requires only "general" intent, since the court's entire "discussion" of the issue is limited to the following cryptic and conclusory reference:

The instruction on specific intent is not erroneous where willfulness is in the indictment. Even though specific intent is not an element of § 751(a), specific intent became the law of the case when the Court gave Instruction 11 ("specific intent must be proved before there can be a conviction"). * * *

464 F.2d at 1251 (emphasis added).22 As indicated above, we find the Seventh Circuit's careful analysis in United States v. Nix much more persuasive authority.23

The District Court's attachment to a definition of "escape" that would effectively prevent the jury from considering the evidence of conditions in the jail, assaults, and threats in relation to appellants' intent reflects a line of cases in which courts, moved by fears of undermining prison discipline or encouraging mass escapes, have hesitated to allow juries even to consider such allegedly exculpatory evidence in escape cases unless various rigorous conditions have been satisfied.24 We find no adequate justification for this special broad proscription against admission of such probative defense evidence relating to intent. Juries are accustomed to determining the intent of alleged criminals, and we see nothing in the context of prosecutions for escape that requires the court to risk denying the defendants a fair trial by denying the jury its normal function. Those escape cases in which juries have been allowed to consider exculpatory evidence offer no support for fears that jurors are unable reasonably to consider all the aspects of escape cases or that juries will render decisions that will "encourage" escapes.25 In fact, the assumptions underlying the special restrictions on defense evidence in escape cases appear to be pure speculations without any empirical support in either the case law or the scholarly literature. On the other hand, the pernicious consequences of the restrictive rules are all too clear from the reported cases.26 As we have explained above, the proper approach is to inform the jury of those considerations that are relevant to its deliberations, not to take the issue out of its hands.27 In our view allowing the jury to perform its accustomed role in escape cases may make those responsible for prison conditions more conscious of their responsibilities and may well lead to fewer, rather than more, escapes. See People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974), Aff'd, 394 Mich. 625, 232 N.W.2d 187 (1975).28 See also United States v. United States Gypsum Co., --- U.S. ---, --- - ---, 98 S.Ct. 2864, 2872-2878, 57 L.Ed.2d 854 (1978).

B. Duress-Necessity-Compulsion-Choice of Evils

In addition to giving an instruction that made the evidence of conditions in the jail, assaults, and threats irrelevant to the intent issue, the trial judge refused to let the jury consider the evidence as grounds for a defense of "duress." There is some theoretical confusion over the nature of the defenses of duress and necessity, especially in the context of prison escape cases.29 This confusion can be minimized, however, by concentrating on the basic principles underlying a proffered defense and avoiding unhelpful labels such as "duress" and "necessity."

The defenses usually raised under the duress/necessity labels reflect two different general principles of exculpation. One of these principles, exemplified by the notion of duress as compulsion, dictates that a person will not be held responsible for an offense he commits under threats or conditions that a person of ordinary firmness would have been unable to resist.30 This principle, like the defenses of intoxication, insanity, and mistake, negates the intent or voluntariness elements of an offense.31 Instructions with respect to this type of defense for the crime of escape are discussed above under "Intent" (I-A Supra ) and require no further consideration here.32

The other general principle reflected in the discussions of duress/ necessity defenses is one of justification by choice of the lesser evil I. e., that a person is not guilty of an offense if he committed it because he reasonably believed his action was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the offense.33 Rather than excusing a defendant's action because he lacked the intent society wishes to punish, this "choice of evils" defense affirmatively justifies the defendant's action: the defendant did the Right thing, because "public policy favors the commission of a lesser harm (the commission of what would otherwise be a crime) when this would avoid a greater harm."34 Courts and legislatures that have recognized this type of defense have often reflected the theoretical confusion surrounding the duress/necessity labels more than the fundamental choice of evils principle by creating "fixed rules which depart somewhat from the rationale underlying the (general) rule."35 The tendency of courts to structure duress/necessity defenses in terms of such fixed rules has been particularly pronounced in escape cases.36 The more progressive codes and cases, however, have tended to reduce the theoretical and practical complexities of the choice of evils defense to a few general guidelines consistent with its basic rationale.37

In regard to the choice-of-evils-type defense, this particular case in its present posture at most38 presents the relatively narrow question whether a jury should be allowed to consider an otherwise sufficiently supported39 choice of evils defense in the absence of One of the special prerequisites some courts have imposed upon such defenses in escape cases the requirement that an escapee turn himself in to the authorities immediately after escaping.40 After considering appellants' proposed "duress" instruction41 and a memorandum on duress/necessity defenses in escape cases submitted by the Government,42 the trial court announced that it had prepared an instruction on duress, but at the last moment decided that it could not give the instruction because, "(a)s the Court heard the evidence," the defendants had not turned themselves in or made adequate efforts to do so. Tr. 806-807.43

The most influential statement of the "return requirement" as a prerequisite to a choice-of-evils-type defense in escape cases is contained in the opinion of an intermediate California appellate court in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974).44 The Lovercamp court apparently imposed the requirement because it feared that without it a prisoner who satisfied the other conditions of the defense could "thereafter go his merry way relieved of any responsibility for his unseemly departure." 118 Cal.Rptr. at 115. Subsequent opinions, most notably the Ninth Circuit's discussion in United States v. Michelson, 559 F.2d 567 (9th Cir. 1977),45 have developed this rudimentary rationale more rigorously. The Michelson court's analysis reveals that the return requirement is based on the critical assumption that escape is a "continuing" offense, I. e., that one may commit the crime of escape, even if his original departure from custody was justified, by failing or refusing to Return to custody once the justifying circumstance is no longer present. Thus the Ninth Circuit found it unnecessary to decide "whether defendant acted out of duress in escaping" because the defendant in Michelson had been absent from custody for nearly two years and his duress defense applied only to his initial departure, not to the two years he was at large.46 559 F.2d at 571. In support of its conclusion the Michelson court cited with approval United States v. Chapman, 455 F.2d 746 (5th Cir. 1972), where "(t)he jury was instructed that even if they should find that the defendant was initially forced by other prisoners to leave federal custody, 'if he thereafter on his own volition decided to remain at large this would constitute the crime of escape.' " 559 F.2d at 570-571, Quoting United States v. Chapman, supra, 455 F.2d at 749 (emphasis added). Under the analysis in these cases, the return requirement merely stands for the limited and commonsense notion that a choice of evils defense to the crime of "escape" defined as leaving And staying away from custody lasts only as long as the choice of evils justifies a failure to return.

The Ninth Circuit's analysis indicates that the trial court's application of the return requirement in the circumstances of this case was inappropriate.47 Even if we accept the notion on which the requirement is based that escape is a continuing offense this theory was not reflected in the indictment or in the trial court's charge to the jury. Although we would be very sympathetic to a jury instruction similar to that in Chapman to the effect that a defendant can "escape" by failing to return to custody even if his initial departure was justified and that a choice of evils defense to escape must therefore justify not only a defendant's original departure but also his continued absence,48 no such instruction was given in this case. Instead, appellants were indicted for "flee(ing) and escap(ing)" "(o)n or about August 26, 1976,"49 and the trial court's instructions, rather than explaining a "continuing offense" concept to the jury, emphasized the notion that the offense took place when appellants left the jail on August 26.50 Thus this is not a case where the jury was considering whether a defendant had escaped by failing to return. Appellants were tried and convicted of escaping by leaving the jail on August 26, and it was therefore error for the trial court to deny a choice of evils instruction on the ground that the defendants had not returned or adequately explained their continued absence. In effect, the trial court denied appellants' right to have the jury consider a duress defense to the crime with which they had been charged (escaping on August 26) because the Court found that they would in any event be guilty of an offense Under a theory (failure to return) that was never presented either to appellants or to the jury. We cannot sanction such an obvious violation of appellants' constitutional right to jury trial.

Under the circumstances of this case it is unnecessary for us to consider exhaustively the proper prerequisites to a choice of evils defense in escape cases.51 The trial court apparently gave this question considerable attention, and we do not know the nature of its prepared instruction except that were it not for the return requirement, which must be modified in accordance with our opinion,52 it was willing to have the jury consider the defense.53

We find prejudicial error in the District Court's instruction on the element of "escape," which prevented the jury from properly considering evidence relevant to appellants' intent. The District Court also erred by imposing a return requirement as an absolute prerequisite to appellants' proposed "duress" instruction, rather than instructing the jury that escape is a continuing offense and that such a defense must therefore justify a defendant's continued absence as well as his initial departure. Appellants' convictions must therefore be reversed and their cases remanded for a new trial.

Appellants also challenge the trial court's instructions and the sufficiency of the evidence with regard to another element of the offense: whether at the time they escaped they were In the custody of the Attorney General by virtue of the convictions alleged in the indictment.54 The indictment charged that all three appellants had been lawfully committed to the custody of the Attorney General by virtue of specific federal convictions and sentences and had escaped from such custody.55 The prosecution's evidence indicated that Cooley was serving a sentence in the D.C. Jail, while Bailey and Walker, who were serving sentences in the federal facility in Leavenworth, Kansas, had been brought to the D.C. Jail pursuant to writs of Habeas corpus ad testificandum issued by the Superior Court for the District of Columbia.

Appellants raise two objections to the instructions and the evidence on the custody element of the offense. First, appellant Cooley argues that the prosecution's evidence that he was in custody by virtue of his federal conviction at the time he escaped was insufficient as a matter of law. The prosecution relied primarily on documentary evidence to prove the custody element in all three cases.56 In Cooley's case, for example, the Government introduced (1) a "face sheet" showing that Cooley was committed to the "D.C. Jail" on April 10, 1976 as a "federal prisoner" (Government Exhibit No. 8), (2) a Judgment and Commitment Order dated May 20, 1976 showing that following his conviction of Possession of an Unregistered Firearm, 26 U.S.C. § 5861(d) (1970), Cooley was sentenced and "committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five (5) years" (Government Exhibit No. 2), (3) an Escape and Apprehension Form dated August 26, 1976 noting that Cooley had escaped from the D.C. Jail on that date (Government Exhibit No. 5), and (4) the testimony of the Supervisor of Records at the D.C. Jail that there was no record of Cooley's being released from the jail's custody before August 26. Tr. at 27-28.

Since there was no specific documentary evidence, such as a return on the Judgment and Commitment Order, showing that the Attorney General committed him to the new D.C. Jail, Cooley argues that the evidence fails to prove that he was confined in the jail by virtue of the conviction alleged in the indictment. He draws support from Strickland v. United States, 339 F.2d 866 (10th Cir. 1965), a case in which the Tenth Circuit reversed a jury conviction under Section 751(a) because it held that evidence similar to that introduced here was insufficient as a matter of law to establish a Prima facie case. Although the Government's proof of a "chain of custody" pursuant to the convictions alleged in the indictment is not as strong as it could be, we do not agree that the prosecution's evidence fails to establish a Prima facie case as a matter of law.57 Reasonable inferences based on the evidence presented could enable a jury to find beyond a reasonable doubt that appellant Cooley was in custody by virtue of the convictions alleged in the indictment at the time he left confinement. Moreover, the trial court's instructions with respect to Cooley's custody were essentially correct.58

The second objection related to the custody element of the offense concerns only the appellants who were brought to the D.C. Jail pursuant to writs of Habeas corpus ad testificandum Bailey and Walker. The trial court instructed the jury:Prisoners, such as two of the prisoners in this case, defendants in this case who are convicted in another jurisdiction and who were in the custody of the Attorney General, were brought to this jurisdiction as the documentary evidence shows, because they were summonsed (Sic ) as witnesses by another defendant in a proceeding then pending in the District of Columbia court. They are still under the custody today of the Attorney General regardless of how they happened to be brought into the District of Columbia Jail.

Tr. 800-801. Appellants claim that this instruction does not state the law and that it effectively removes an issue of fact from the jury's consideration.

Appellants' basic argument is that when a prisoner who has been committed to the custody of the Attorney General is transferred pursuant to a writ of Habeas corpus ad testificandum, the prisoner is no longer in the custody of the Attorney General pursuant to the original commitment, but is in the custody of the court that issued the writ at least during the operation of the writ. Appellants therefore urge that, contrary to the instructions given by the trial court, there was a factual question whether they were in the custody of the Attorney General or of the Superior Court at the time they left the jail, and they claim further that the Government's evidence on this factual issue was insufficient to establish a Prima facie case.

Appellants claim to find authority for their position in the early Supreme Court opinion in Barth v. Clise, 79 U.S. (12 Wall.) 400, 20 L.Ed. 393 (1870). That case was a suit against a sheriff to recover a debt owed to the plaintiff by a prisoner who had escaped while the sheriff was allegedly responsible for his safekeeping. The sheriff, who had arrested the prisoner pursuant to a writ of Ne exeat obtained by the plaintiff, had brought the prisoner into court pursuant to a writ of Habeas corpus obtained by the prisoner. The prisoner then escaped from the courtroom during the Habeas corpus proceeding and fled to Canada. The Supreme Court held that the sheriff was not liable for the debt owed by the prisoner, explaining that once the sheriff had returned the prisoner to the court pursuant to the writ of Habeas corpus, the responsibility for the safekeeping of the prisoner passed to the court "until the case is finally disposed of." 79 U.S. (12 Wall.) at 402, 20 L.Ed. 393.

Citing broad language in Barth,59 appellants argue that unless the testimony for which they had been brought to the District of Columbia had been completed, they were in custody pursuant to an order of the Superior Court and not by virtue of their federal convictions at the time they left the jail.60 Similar arguments based on Barth v. Clise have been raised in several previous escape cases brought under Section 751(a), but such arguments have never persuaded any court to find the requisite custody lacking in the case before it.61

Like these other cases, the case before us is distinguishable from Barth on several grounds. Barth dealt with the common law liability of a custodian for the escape of a prisoner, while this case involves an interpretation of the terms of the federal escape statute. The prisoner in Barth escaped from the courtroom during the Habeas proceeding, while appellants allegedly left an institution designated by the Attorney General for confinement of federal prisoners. Finally, Barth involved a writ of Habeas corpus ad subjiciendum (the Great Writ), while the case before us concerns a writ of Habeas corpus ad testificandum.

In light of these distinctions, we find that Barth does not prevent us from deciding that a prisoner who has been committed to the custody of the Attorney General by virtue of a conviction is still in the custody of the Attorney General by virtue of that conviction for the purposes of Section 751(a) when he is transferred pursuant to a writ of Habeas corpus ad testificandum and confined in an institution designated by the Attorney General for the custody of federal prisoners. Policy considerations support at least this broad an interpretation of Section 751. The jurisdiction from which a prisoner is brought pursuant to a writ of Habeas corpus has a significant interest in preventing the prisoner's escape from custody. This interest has been recognized in an analogous situation by the drafters of the Interstate Agreement on Detainers (IAD), who provided that when a prisoner serving a sentence in one jurisdiction is brought to another jurisdiction for trial on another offense and escapes while in the receiving jurisdiction, he may be prosecuted under the escape statute of the sending jurisdiction.62

In addition to protecting the interest of the sending jurisdiction, holding that prisoners transferred by writs of Habeas corpus ad testificandum are still in custody "by virtue of" the original commitment makes intuitive sense. The writ of Habeas corpus ad testificandum is necessary only because the prisoner is already in custody elsewhere; the prisoner is kept confined when he is not testifying essentially because of the previous commitment; and any time during which the prisoner is confined under the writ counts toward satisfying the prisoner's original sentence. Courts interpreting the term "custody" in escape cases63 and cases involving writs of Habeas corpus64 have demonstrated a flexibility responsive to such considerations of policy and common sense. Indeed, at least two other judicial decisions have in effect come to the same conclusion we reach.65

Although the trial judge's instructions matched the general sense of our holding, we recognize that some portions of the instructions on this matter were confusing and might have invaded the province of the jury.66 We assume, however, that any such deficiencies in the instructions will be cured on remand.III

Appellants also raise other issues,67 but in light of our decision to grant a new trial on the ground of the erroneous instructions on " escape" we find it unnecessary to discuss these other questions.68 These cases are accordingly reversed and remanded to the District Court for further action consistent with this opinion.

Reversed and remanded.

Traditionally, claims of compulsion have been governed by strict standards; defendants have been required to raise such issues within the framework of the affirmative defenses of duress and necessity, and these defenses have been precisely defined, carefully hedged, and subject to strict proof. In a radical departure from this approach, the majority holds that even if evidence is insufficient as a matter of law to make out a duress or necessity defense, it must nevertheless be presented to the jury as bearing, in some nebulous and undefined way, on a defendant's "voluntariness" and "intent". Although my colleagues do not seem to realize it, this bouleversement effectively abolishes the defenses of duress and necessity, and the salutary standards embodied in them. In their stead it places vague, expanded, and essentially deterministic concepts of "intent" and "voluntariness," whose just application, no matter how well-intentioned, is obviously fraught with difficulties. I respectfully dissent.

In the early morning hours of 26 August 1976, officers of the District of Columbia Detention Facility discovered that an escape had been effected through a low-level window in the Northeast-1 housing unit. A check of the unit revealed that three prisoners Bailey, Cooley, and Walker were among those escaped. Bailey, serving a sentence of 23 years at the time, had been convicted in 1973 of bank robbery and attempted escape. Walker, serving a 15-year sentence, had been convicted in 1973 of bank robbery. Cooley, doing 5 years, had been convicted in May 1976 of possession of an unregistered firearm.

Cooley, Bailey, and Walker were later apprehended in the District of Columbia by FBI agents on 27 September, 19 November, and 13 December 1976, respectively. On 23 November 1976 all three were indicted for escape from custody, a violation of 18 U.S.C. § 751(a), and prison breach, a violation of 22 D.C.Code, § 2601. On 8 March 1977 a jury trial commenced in the United States District Court for the District of Columbia before District Judge Oliver Gasch.

During trial the defendants did not dispute that they had escaped from jail, but they offered a great deal of evidence to establish their contention that the escape was justified in view of the desperate conditions there. Several witnesses were produced who had been incarcerated with defendants. Their testimony was offered to establish that frequent fires, assaultive and threatening conduct by corrections officers, and lack of adequate medical attention combined to make conditions so unbearable that defendants were compelled to flee for their own well-being. The basic issue on this appeal is whether or not, and in what manner, the jury should have been instructed to consider this evidence.

Several prison inmates incarcerated with defendants in the Northeast-1 unit testified that fires were frequently set there. One inmate said that they occurred every day.1 Estimates varied on how long the fires were allowed to burn. One prisoner thought they lasted for an hour,2 while another testified that they lasted for an hour and a half and that the smoke remained all night.3 The same prisoner said that the guards "just let them burn until they burn out".4 However, there was no evidence of a fire on 26 August 1976, the day of the escape.

The Assistant Administrator of Operations at the facility, called to the stand by defendant Walker, contradicted these allegations. While he acknowledged that there had been small fires set in Northeast-1, he said that the inmates themselves had set the fires5 and that the officers on duty had promptly extinguished them.6 After the fires had been put out, exhaust fans were turned on to clear the smoke from the air, and medical attention was provided for anyone found to be in need of it.7 A corrections officer who had been stationed in Northeast-1 in the summer of 1976 recalled that fires were set in the unit every week, but that they lasted only five to seven minutes.8 He testified that, to his knowledge, no officer had ever permitted a fire to burn without acting to extinguish it.9

Testimony was also elicited that beatings were frequently administered to the inmates by corrections officers stationed in Northeast-1. One inmate claimed that they took place on a daily basis.10 Another inmate reported seeing a group of six or seven guards attack defendant Bailey with blackjacks and mace.11 This incident occurred, according to the inmate, more than three weeks before Bailey's escape.12 T