United States of America, Plaintiff-appellee, v. James E. Mccracken, Defendant-appellant, 488 F.2d 406 (5th Cir. 1974)

This is a direct appeal from a conviction for first degree murder. On August 18, 1971, James E. McCracken, then a fifty-six year old domiciliary patient at the Veterans Administration Hospital in Biloxi, Mississippi, shot and killed Dr. Hugh B. McGill, a member of the medical staff at the facility. Using the same .38 caliber pistol, he then shot and wounded himself. He made no attempt to escape or to conceal or deny his actions.

Following his indictment for first degree murder,¹  McCracken was sent to the U.S. Medical Center for Federal Prisoners, Springfield, Missouri, pursuant to 18 U.S.C. § 4244 (1970), for examination into both his mental health at the time of the shooting and his present ability to aid in his own defense. Based on the report of the Springfield staff, the district court entered an order finding McCracken presently sane and mentally competent to stand trial for the charges against him.

He was tried before a jury in the Southern District of Mississippi. His only defense was that at the time of the offense he was not legally sane. The jury rejected the insanity defense, and McCracken was convicted of first degree murder and sentenced to life imprisonment.

On appeal McCracken specifies seven points of error, which raise three basic issues. First, was the Government's evidence sufficient to make an issue for the jury on insanity and to sustain the jury's conclusion that McCracken was legally sane at the time of the offense [points 1, 2, and 7]; second, were the instructions relating to the definition of insanity so repetitious as to be prejudicial [point 4]; and third, did the trial court err in instructing the jury that if found "not guilty by reason of insanity," the defendant would be "turned a loose" [points 3, 5, and 6]. We cannot agree with appellant that on the basis of the record as a whole the Government's evidence was insufficient as a matter of law to avoid a directed verdict on the issue of insanity or to sustain the jury's verdict. The second issue is also without merit. As to the third issue, however, we have concluded that the trial judge committed harmful and substantial error, and we reverse.

Evaluating the sufficiency of the evidence of a defendant's sanity is by no means an easy task, at either the trial or the appellate level. Nevertheless, the parameters by which the determination must be made are by now well-settled in this Circuit.²  The defendant's sanity is always an element of the offense charged. When no question of insanity is raised, the Government's burden of proving sanity is satisfied by the so-called "presumption of sanity," which stands in the place of evidence. When, however, "some" evidence is received, establishing the hypothesis of insanity, the burden is on the Government to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. Blake v. United States, 5 Cir. 1969, 407 F.2d 908, 911, 912; Brock v. United States, 5 Cir. 1967, 387 F.2d 254, 257; Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 140.

Once raised, the question of the defendant's sanity will normally be for the trier of fact to resolve, but at three different points the court may face the question of the sufficiency of the evidence as a matter of law. Initially, of course, the court must always determine whether the defendant has presented enough evidence to put his sanity in question. See United States v. Holt, 5 Cir. 1971, 450 F.2d 868. The court must also determine whether the Government's evidence is sufficient to make an issue for the jury on the defense of insanity and thus avoid a directed verdict of acquittal. Finally, in the event of a guilty verdict, the court must decide whether the Government's evidence is sufficient to support the conclusion of the trier of facts as to the defendant's sanity at the time of the offense. United States v. Collier, 5 Cir. 1972, 453 F.2d 1173, 1176-1177; Gordon v. United States, 5 Cir. (1971) 438 F.2d 858, 885, cert. denied, 1971, 404 U.S. 828, 92 S. Ct. 63, 30 L. Ed. 2d 56; Blake v. United States, supra, 407 F.2d at 911.

This court has never precisely defined the quantum of evidence necessary to constitute sufficiency for each of these determinations, though the level obviously rises from the first to the third. Indeed exact quantification, even if possible, would probably be undesirable. Instead, through the painful process of case-by-case adjudication we have educed a set of general principles to guide both the trial court in exercising its role of weighing the evidence as a matter of law and the appellate court in reviewing that exercise. Foremost among these principles is the realization that "each [case] must be decided upon its own facts with careful attention to the weight of the evidence on each side." Nagell v. United States, 5 Cir. 1968, 392 F.2d 934, 937. Applying these principles to the case sub judice, we have concluded that appellant's challenges to the sufficiency of the evidence must fail.

The defense theory was that McCracken suffered from psychomotor epilepsy, developed traumatically during World War II from a gun blast in the face, from malaria, or from both, which caused him to suffer frequent seizures, especially at times of stress, manifested by tearing, salivation, and jerking or jabbing movements of the right hand. Acts of violence might be committed during the seizures, and McCracken would have no subsequent memory of such conduct. According to the theory, McCracken was bitter about his failure to receive a service-connected disability allowance. When he went to Dr. McGill, hoping a threat would produce action on his application, he suffered a seizure that caused the unintentional shooting.

In support of this theory the defense presented the expert testimony of Dr. Morris H. Lampert, a Texas neurologist who had been treating McCracken for epileptic disorders for ten years. Dr. Lampert testified about the general characteristics and effects of psychomotor epilepsy, including seizures, automatism, aggressive or hostile behavior, alteration in personality, and amnesia. He also testified concerning the defendant's own condition, concluding that though treatable, McCracken was probably not curable. In addition, a number of lay witnesses-relatives, fellow patients and attendants at the V.A. hospital, and two jailers-described in detail McCracken's actions during various observed seizures over the years.

On a number of occasions this court has said that it takes only a slight quantum of evidence to raise the issue of insanity. E. g., United States v. Collier, supra, 453 F.2d at 1176; Gordon v. United States, supra, 438 F.2d at 885. The very strong case presented by the defense was certainly more than sufficient to this end, and placed the burden of proving sanity beyond a reasonable doubt on the Government.

In determining whether the Government met its burden at least enough to warrant submission of the question of insanity to the jury, both the amount and kind of evidence presented by the Government are important. As we noted in Brock v. United States, supra, 387 F.2d at 258, however, "the nature and quantum of rebuttal evidence sufficient to present a jury question is to some degree determined by the strength of the case for insanity." Thus it is possible for the Government to meet its burden without using expert testimony on the sanity question. In Mims v. United States, supra, 375 F.2d at 143-144, we outlined techniques by which the Government might meet its burden by discrediting the defense experts:

[E]xpert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which the opinion is based, "the reasoning by which he progresses from his material to his conclusion," the interest or bias of the expert, inconsistencies or contradictions in his testimony as to material matters, material variations between the experts themselves, and defendant's lack of co-operation with the expert. Also, in cases involving opinions of medical experts, the probative force of that character of testimony is lessened where it is predicated on subjective symptoms, or where it is based on narrative statements to the expert as to past events not in evidence at the trial. In some cases, the cross examination of the expert may be such as to justify the trier of facts in not being convinced by him.

No more than a brief review of the Government's case is necessary for us to conclude that the trial court did not err in denying McCracken's motion for directed verdict of acquittal and in submitting the question of insanity to the jury. The Government presented one expert witness, Dr. H. B. Fain, the Acting Chief of Psychiatry at the United States Medical Center for Federal Prisoners at Springfield, Missouri. Dr. Fain testified concerning the examination made about one month after the shooting to determine McCracken's competency to stand trial. He included his own opinion about McCracken's possible sanity at the time of the offense.³  From the absence of residual evidence, Dr. Fain concluded that McCracken did not lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law at the time of the offense. Dr. Fain did acknowledge that he would not know appellant's mental condition on the day of the shooting if McCracken had in fact suffered a seizure at the time of the offense. The Government also presented lay witnesses to support its theory that McCracken had deliberately planned the confrontation with the goal of either achieving a satisfactory settlement of the disputed claim or killing Dr. McGill and himself.⁴ 

Under the evidence presented by both sides, the crucial question for the jury was whether the shooting of Dr. McGill occurred as a result of an epileptic seizure by McCracken. In rejecting the insanity defense the jury evidently concluded that it had not. In reviewing the sufficiency of the evidence to support this result, we are conscious of the

respected and revered admonition in Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680, 704, that "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it" . . ..

Lacaze v. United States, 5 Cir. 1968, 391 F.2d 516, 519. In this context "substantial evidence" means "evidence that a reasonably minded jury could accept as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." United States v. Harper, 5 Cir. 1971, 450 F.2d 1032, 1040. Stated another way the test is whether "a reasonable mind must necessarily have had a reasonable doubt as to [the accused's] legal sanity at the time of the offense." United States v. Alvarez, 5 Cir. 1972, 458 F.2d 1343, 1344.

When passing on the question of insanity, the jury should look at all the evidence, not just the opinion of the experts, though expert opinion evidence cannot be arbitrarily ignored. United States v. Harper, supra, 450 F.2d at 1042; Mims v. United States, supra, 375 F.2d at 143. The fact finder "need not be bound by expert testimony even if all the witnesses are presented by only one side," United States v. Pitts, 5 Cir. 1970, 428 F.2d 534, 536, cert. denied, 1970, 400 U.S. 910, 91 S. Ct. 154, 27 L. Ed. 2d 149, for as in other cases, questions of the

credibility and weight of expert opinion testimony are for the trier of the facts, and . . . such testimony is ordinarily not conclusive even where it is uncontradicted. . . . [E]xpert opinion as to insanity rises no higher than the reasons upon which it is based. . . .

United States v. Alvarez, supra, 458 F.2d at 1344 (emphasis in the original). See also United States v. Collier, supra, 453 F.2d at 1176; Nagell v. United States, supra. Especially where there are "material variations between the experts themselves," the fact finder need not be bound by defense expert testimony. United States v. O'Neal, 5 Cir. 1970, 431 F.2d 695, 696, cert. denied, 1971, 401 U.S. 917, 91 S. Ct. 898, 27 L. Ed. 2d 818.

This Court has not in the past been hesitant to reverse insanity cases because of insufficient evidence to support a verdict against the accused. We recognize that each case must be decided on its own "particular and peculiar facts," United States v. Collier, supra, 453 F.2d at 1177, rather than on its supposed position along some imaginary spectrum of cases. Yet we feel constrained to mention that when in the past we found the evidence insufficient to sustain a guilty verdict, the Government had usually made a less complete effort on the insanity issue than in the case at bar.⁵ 

Dr. Fain's testimony certainly created a battle of experts for the jury to consider. Complementing this expert testimony was the testimony from various lay witnesses, apparently intended both to support the Government's premeditation theory and to refute partially the defense expert's testimony. Witnesses testified that McCracken had encountered many difficulties with the Veteran's Administration and believed he was being unfairly deprived of benefits. The day before the shooting, he traded a previously acquired pistol for the murder weapon. He announced his intention of settling his claim with "the clincher," and according to a nurse, immediately after the shooting said, "I told you I would do it." Other witnesses also saw McCracken shortly after the shooting and noticed none of the physical signs that usually accompanied the seizures.

We do not mean to minimize or depreciate the evidence presented by the defense. It seems clear to us, as it no doubt did to the jury, that appellant is prone to epileptic seizures and in need of medical treatment. That the tragic shooting of Dr. McGill might have occurred as a result of a seizure is certainly not a frivolous hypothesis on these facts. The jury chose to reject that hypothesis. Had we been given the duty of finding the facts in this difficult case, we might or might not have reached a different result. Our duty here, however, is more limited, and on a review of the record as a whole we cannot say that the evidence viewed in the light most favorable to the Government is insufficient as a matter of law to sustain the jury's conclusion that McCracken was legally sane at the time of the offense.

Appellant next complains about the trial court's instructions to the jury on the definition of insanity, the burden of proof, the definition and essential elements of the offense charged, and the meaning of "malice aforethought." He makes no claim that the instructions misstated the law, but rather argues that they were prejudicially repetitious. This Court has often warned that in reviewing jury instructions we must evaluate "the charge as a whole, in its totality, without isolating statements which may appear prejudicial from the context in which they were made." United States v. Williams, 5 Cir. 1973, 473 F.2d 507, 509; United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, 386-387; United States v. Wilkinson, 5 Cir. 1972, 460 F.2d 725, 732. In this case appellant questions not the propriety of any particular statement or statements, but rather the effect of the mass taken together.

Initially we must note that appellant voiced no objection at trial to the allegedly repetitious form of the instructions. Ordinarily this would preclude us from reviewing the jury instructions, Fed.R.Crim.Proc. 30, but we may notice "plain errors or defects" that affect substantial rights even though not brought to the attention of the trial court, Fed. R.Crim.Proc. 52(b). To bring himself within the grace of the "plain error" rule, appellant must show that "the charge deprived [him] of a constitutional right or was erroneous in matters which go to the very essence of the case . . .." United States v. Fontenot, 5 Cir. 1973, 483 F.2d 315, 322. As Judge Wisdom wrote in United States v. Jacquillon, supra, 469 F.2d at 386, the application of the plain error rule

is limited to exceptional situations involving serious deficiencies which affect the fairness, integrity, or public reputation of the judicial proceedings, United States v. Socony-Vacuum, 1940, 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129, or which constitute obvious error, United States v. Atkinson, 1936, 297 U.S. 157, 56 S. Ct. 391, 80 L. Ed. 555.

In Lacaze v. United States, 5 Cir. 1968, 391 F.2d 516, 521, we said that " [r]epetitious and unnecessarily long charges are confusing to a jury and can be held prejudicial," but we cautioned that "length and magnitude in a charge are not per se untenable." We thus indicated our belief that challenges to jury instructions should be framed, not in terms of literary criticism-though literary craftsmanship is surely important in preparing good instructions-but rather in terms of specific elements of prejudice allegedly flowing from the questioned instructions.

In theory the court's charge to the jury is designed to inform the jury of its function of independently determining the facts and applying to those facts the law as charged by the court, United States v. Perisco, 2d Cir. 1965, 349 F.2d 6, 8. Instructions should be as succinct, clear and consistent as possible given their intended function and the nature of the particular case. See generally 1 Devitt and Blackmar, Federal Jury Practice and Instructions Secs. 8.01, 8.02 (2d ed. 1970); Devitt, Ten Practical Suggestions About Federal Jury Instructions, 38 F.R.D. 75 (1965); Thomas, Improvement in Charges to Juries, 1 F.R.D. 141 (1940). Unnecessarily long and repetitive instructions increase the danger that the jury will perceive inconsistencies, become confused, and be unduly impeded in properly exercising its functions.

More important, every criminal defendant has a right to trial by an impartial jury whose verdict is not commanded, coerced, or unduly influenced by the trial judge. Instructions must not, therefore, be argumentative or slanted in favor of either side, see Daniel v. United States, 5 Cir. 1959, 268 F.2d 849, 854. Read as a whole they should neither "unduly emphasize the theory of the prosecution, thereby deemphasizing proportionally the defendant's theory," Perez v. United States, 5 Cir. 1961, 297 F.2d 12, 16, nor overemphasize the importance of certain evidence or certain parts of the case, see United States v. Curry, 5 Cir. 1973, 471 F.2d 419, 422. Under some conditions the repetition of particular instructions might have a tendency to force a verdict against an accused by unduly underscoring certain aspects of the case.

Apparently, this latter type of prejudice is the gravamen of McCracken's complaint on this point. We have studied the entire charge to the jury with care. While we agree with appellant that the instructions are unduly repetitive in some respects, we cannot agree that the repetition must have, by its very weight, influenced or induced the jury to find against appellant.⁶  Nor, for that matter, can we detect any particular inconsistencies or other flaws that might have confused the jury or obstructed the performance of its functions. Boring the instructions might have been, but the repetition in these charges is a defect of the literary, not the "plain error" variety.⁷ III. FORM AND CONSEQUENCES OF THE VERDICT

When the jury departed to deliberate, they received a form of verdict containing four alternatives-not guilty, not guilty by reason of insanity, guilty of murder in the first degree, and guilty of murder in the second degree. At the close of his charge, the trial judge explained the various alternatives to the jury, saying of the second,

[I]f your verdict is that the defendant is not guilty by reason of insanity the form of your verdict will be "we, the jury, find the defendant James E. McCracken, to be not guilty of the offense charged in the indictment by reason of insanity at the time of said act." If that's your decision you will put your X mark in the rectangle opposite that form of verdict and the defendant will be immediately released from custody.

[TR. at 721, emphasis added.]

The court also discussed the possible verdicts earlier in the charge, summarizing the insanity alternative in similar language:

In the event you find that the defendant was not responsible for his conduct as a result of mental disease or defect upon all of the evidence which I have presented to you the form of your verdict will be "we the jury find the defendant, James E. McCracken, not guilty by reason of insanity," in which event the court would turn the defendant a loose. That is the only alternative because there is no provision in the statute for doing anything [other] than completely liberating him in the event you find him not guilty by reason of insanity.

[TR. at 704, emphasis added.⁸ 

Appellant perceives two prejudicial defects in these instructions.⁹  Focusing on the form of the verdict alternatives, he argues that the "not guilty by reason of insanity" verdict [NGI] exists in federal practice only in the District of Columbia and is not otherwise authorized. By submitting this alternative, he continues, the court was in effect calling for a special verdict in a criminal case. Turning to the statements that the court would turn McCracken "a loose" in the event of an NGI verdict, appellant argues that the court thus allowed the jury to consider punishment in determining guilt or innocence. In fact, he concludes, the court invited, if not commanded, the jury to find him guilty in order to ensure his post-trial confinement.

We begin our analysis of this part of McCracken's appeal by recognizing that although McCracken has framed his complaint in terms of two particulars, a more fundamental problem over which we have absolutely no control underlies the challenged instructions. This problem-somewhat euphemistically called a "gap"¹⁰  but perhaps more accurately described as a chasm-is the absence of any federal legislation dealing with the disposition of a defendant tried in a federal court outside the District of Columbia and found not guilty by reason of insanity at the time of the offense.¹¹  The problem is as old as the acceptance in our jurisprudence of the insanity defense to criminal actions, but its solution is not yet in sight.

At common law courts possessed the power to order the immediate confinement of defendants acquitted by reason of insanity at the time of the offense, usually in jail. Though the procedures vary, all fifty states today have statutes authorizing some type of civil commitment, either compulsory or discretionary with the trial judge, for criminal defendants found not guilty because of insanity.¹²  In Mississippi, for example, the trial judge is authorized to order a defendant acquitted because of insanity committed to a State asylum for the insane if the jury has certified that the defendant is still insane and dangerous. Miss.Code Ann. Secs. 41-21-21; 99-13-7 (1972). In the District of Columbia a statute provides for mandatory commitment to a mental hospital for those acquitted because of insanity at the time of the offense, D.C.Code Sec. 24-301(d).¹³  In stark contrast, federal courts outside the District of Columbia have no statutory authority for special disposition of a defendant found to have been insane at the time of the offense. See generally 2 Wright, supra note 10, at 367-68.¹⁴ 

Certainly the willingness of state authorities to institute state civil commitment proceedings against federal defendants acquitted because of insanity can mitigate to some extent the harsh effects of the federal statutory silence. See Wade v. United States, 9 Cir. 1970, 426 F.2d 64, 73; United States v. Freeman, 2 Cir. 1966, 357 F.2d 606, 625-626. Reliance on state cooperation, however, is at best a partial solution to a serious problem. See United States v. Chandler, 4 Cir. 1968, 393 F.2d 920, 927 (en banc); Tydings, A Federal Verdict of Not Guilty By Reason of Insanity and a Subsequent Commitment Procedure, 27 Md. L.Rev. 131, 133-34 (1967).

Time and again federal courts have decried this gaping statutory hole, most often when adopting a broader definition of insanity for purposes of the insanity defense,¹⁵  and have called upon Congress to take remedial action. E. g., Wade v. United States, 9 Cir. 1970, 426 F.2d 64, 73 (en banc); Blake v. United States, 5 Cir. 1969, 407 F.2d 908, 915 n. 2 (en banc); United States v. Chandler, 4 Cir. 1968, 393 F.2d 920, 927 (en banc); United States v. Freeman, 2 Cir. 1966, 357 F.2d 606, 625-626. Serious legislative proposals have been made, and legislation actually introduced in Congress, but the problem remains. See 2 Wright, supra note 10, at 368 n. 38; Tydings, supra.

It is not our purpose here to repeat the call to Congress for help. For one thing, previous warnings have been clear and eloquent. More important, however, is our own inability to suggest an entirely satisfactory solution to the problem. We recognize, as have our judicial brothers many times in the past, the truth of Mr. Justice Clark's words:

[J]ustice does not permit punishing persons with certain mental disorders for commiting acts offending against public peace and order. But insane offenders are no less a menace to society for being held irresponsible . . .. The community has an interest in protecting the public from antisocial acts whether committed by sane or by insane persons.

Lynch v. Overholser, 1962, 369 U.S. 705, 724, 82 S. Ct. 1063, 1074, 8 L. Ed. 2d 211, 223 (Clark, J., dissenting). In the past courts have sought to frame the solution to the problem posed by Justice Clark in terms of choosing between two types of institutionalization-the prison and the mental hospital-rather than between prison and release. E. g., United States v. Chandler, 4 Cir. 1968, 393 F.2d 920, 927; United States v. Freeman, 2 Cir. 1966, 357 F.2d 606, 626. After all, Daniel M'Naghten himself was sentenced to life in an insane asylum and died after being incarcerated for the last twenty-two years of his life. Yet solving the problem has taken on new and perplexing dimensions with the rising disenchantment over indefinite confinement in a mental hospital as an alternative and the increasing disagreement over what type of disposition really serves the best interests of both the defendant and society. See, e. g., Szasz, The Insanity Plea and the Insanity Verdict, 40 Temp.L.Q. 271 (1967); Comment, supra note 12; Comment, supra note 15; Note, supra note 12.¹⁶  Answers to these troubling questions must come from elsewhere; in the meantime nagging difficulties such as the two posed by appellant in the case at bar will continue to beset courts trying to administer the insanity defense.

As appellant correctly states, usually the only proper verdicts in the federal criminal practice are "guilty" and "not guilty." See 2 Wright, supra note 10. This might in part be explained in terms of need. In the District of Columbia, for example, the NGI verdict form is used to implement the special statutory provision on commitment. A simple verdict of "not guilty" in a case in which the defendant's sanity is an issue might rest either on the jury's belief that the accused was insane at the time of the offense or on its feeling that the Government had not proved the various elements of the offense charged beyond a reasonable doubt. To trigger the commitment provision the more explicit NGI verdict is necessary. For federal courts elsewhere, the absence of any similar statutory provision for defendants who have successfully asserted the insanity defense renders the NGI verdict unnecessary.

A more important reason for the limited "guilty"-"not guilty" alternatives in most federal cases is the strong distaste felt by the courts for so-called special verdicts in criminal cases. See generally 2 Wright, supra note 10, at 364-65. At the time of the adoption of our Constitution, English common law did not view special verdicts with such a jaundiced eye, see United States v. Noble, 3 Cir. 1946, 155 F.2d 315, 317 n. 4, but in our federal criminal practice, submission of a form calling for a special verdict or special interrogatories from the jury has been held to be error. E. g., United States v. James, 5 Cir. 1970, 432 F.2d 303, cert. denied, 1971, 403 U.S. 906, 91 S. Ct. 2214, 29 L. Ed. 2d 682 (harmless error); United States v. Adcock, 2 Cir., 447 F.2d 1337, cert. denied, 1971, 404 U.S. 939, 92 S. Ct. 278, 30 L. Ed. 2d 252 (1971) (reversible error); United States v. Spock, 1 Cir. 1969, 416 F.2d 165 (reversible error); Gray v. United States, 8 Cir., 174 F.2d 919, cert. denied, 1949, 338 U.S. 848, 70 S. Ct. 90, 94 L. Ed. 519 (reversible error).

As then Chief Judge Aldrich explained in United States v. Spock, supra, 416 F.2d at 180-182, our dislike of special verdicts in criminal cases rests on reasons more basic than the suggestive but not determinative fact that the Federal Rules of Criminal Procedure do not provide for them. The principle that in a criminal case, no matter how overwhelming the evidence of guilt, the court may not direct the jury to return a verdict of guilty is a cornerstone of our jurisprudence. Unless the sacred right to trial by jury is to be a mere empty formalism, " [i]n the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent," both of which "have been said to result from the submission of special questions." Id. at 181. Thus the link between special verdicts or special interrogatories and directed verdicts is clear:

To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case.

Id.¹⁷ 

A general verdict insures the input of compassion into a jury's decisional process. The rule against special verdicts and special questions in criminal cases is thus nothing more nor less than a recognition of the principle that "the jury, as conscience of the community, must be permitted to look at more than logic." United States v. Spock, supra, 416 F.2d at 182. In the words of one thoughtful commentator, the prohibition of special verdicts affirms the notation that " [i]n criminal cases . . . it has always been the function of the jury to apply the law, as given by the court in its charge, to the facts," while preserving "the power of the jury to return a verdict in the teeth of the law and the facts." 2 Wright, supra note 10, at 365.

As strongly as we believe in the essential rightness of the above principles, we are unconvinced that they require reversal in this case. The NGI form of verdict may be an orphan in federal practice, for whom none will accept responsibility, but we do not agree that as used in the case sub judice it posed the dangers usually associated with special verdicts or special questions.

In United States v. James, 5 Cir. 1970, 432 F.2d 303, cert. denied, 1971, 403 U.S. 906, 91 S. Ct. 2214, 29 L. Ed. 2d 682, though we concluded that the error was harmless, we decried the action of the trial court in submitting in addition to "guilty"-"not guilty" verdicts six separate requests for "special findings," inquiring which of the six offenses alleged to be objectives of a conspiracy the jury found the defendants to have committed. In United States v. Spock, supra, the trial court, sua sponte and over objection of defense counsel, put to the jury ten special questions to be answered "yes" or "no" that in effect asked for the jury's conclusions on specific issues in the case. In Gray v. United States, 8 Cir., 174 F.2d 919, cert. denied, 338 U.S. 848, 70 S. Ct. 90, 94 L. Ed. 519 (1949), perhaps the clearest case of a true special verdict, the court submitted three forms of verdict, one for each count of the information against the defendant. The form for each count contained paraphrases of parts of the information describing particular aspects of the offenses alleged, and required the jury to make a determination of "guilty" or "not guilty" as to each particular.

In the case at bar, by contrast, the trial court submitted only a third verdict alternative. To be sure, a finding of "not guilty by reason of insanity" would expose the reasons for the jury's verdict more clearly than a simple finding of "not guilty," although in this case the rationale for a not guilty verdict would have been clear in any event because of defense counsel's virtual concession in open court that the insanity defense was the only issue. Nevertheless, we have difficulty finding in the NGI verdict form the step by step approach to a guilty verdict, the formal catechizing of a juror wishing to acquit, the "progression of questions each of which seems to require an answer unfavorable to the defendant" by which "a reluctant juror may be led to vote for a conviction which, in the large, he would have resisted." United States v. Spock, supra, 416 F.2d at 182.

Another, no less substantial reason for our conclusion that the use of the NGI verdict form was not erroneous lies in the case law. This Court has apparently not until now faced a direct challenge to the propriety of using the NGI form of verdict. Three prior decisions, however, compel us to answer as we do.

In White v. United States, 5 Cir. 1967, 387 F.2d 367, we were asked to hold, based on two District of Columbia Circuit cases,¹⁸  that it was error for the trial court to fail to provide for a specific NGI verdict in its charge to the jury on the possible verdicts. We declined to do so, reasoning that the cited cases turned on the special D. C. statute, see supra, and noting that the "guilty"-"not guilty" alternatives used by the trial court "were consonant with pleas available to defendants under Rule 11 of the Federal Rules of Criminal Procedure." 387 F.2d at 368.

In United States v. Skinner, 5 Cir. 1971, 437 F.2d 164, the principal issue at trial was the sanity of the defendant at the time of the offense. The trial court instructed the jury that it could return verdicts of "guilty," or "Not Guilty by Reason of Insanity." On appeal this Court concluded that " [t]he effect of this instruction was to direct the jury to find Skinner guilty unless it appeared that he was lacking in mental capacity to commit the offense . . .." 437 F.2d at 165. Thus in order to avoid the pitfall of partially directing a verdict against the defendant, we held that the trial judge should have included the "not guilty" alternative.

United States v. Harper, 5 Cir. 1972, 460 F.2d 705, was a Skinner-based challenge to the trial court's instruction that the only issue remaining for the jury was whether the defendant was guilty or not guilty by reason of insanity. Although the two cases were similar, we distinguished them because in Skinner the trial judge in instructing the jury commented on various admissions by the defendant, whereas in Harper the defense counsel had stipulated in open court that the allegations contained in the indictment were true, in effect pleading the defendant guilty but reserving the question of insanity. Thus, while in Skinner the jury should have been given the opportunity of finding that the elements of the offense had not been established beyond a reasonable doubt, in Harper the only issue put in dispute by the defendant was the defendant's mental condition at the time of the offense. 460 F.2d at 707. Under the special circumstances of Harper, we concluded that instructing the jury in terms of "guilty"-"NGI" alternatives did not constitute direction of a verdict against the defendant.

Appellant argues that because under White it is not error to omit the NGI alternative, it must therefore be error to include it. This step, though radiating a certain superficial logic, is neither as short nor as ineluctable as Appellant believes. The Government, on the other hand, concludes that Skinner and Harper require the trial court to use the NGI alternative in a case in which insanity is an issue. This step is as difficult for us to make as that suggested by Appellant, for at the very least the NGI verdict form cannot be required if, as White holds, omitting it is not necessarily error.¹⁹ 

We think the relevant principles to be extracted from White, Skinner, and Harper are more limited. Quite simply, while the NGI alternative is neither required nor necessary, its use does not, standing alone, constitute error. The disposition of this case does not require us to express a final opinion regarding the wisdom as a policy matter of using the NGI form in federal courts outside the District of Columbia.²⁰  Our previous cases have given at least tacit approval to that form of verdict, and we are mindful that both attorneys and trial judges might well have based their use of it on these decisions. We cannot now upset that reliance without more persuasive indications that significant prejudice results from the practice.

One other consideration buttresses our conclusion that use of the NGI alternative by the trial court is insufficient, standing alone, to justify reversal in this case. On various occasions during the closing jury argument, defense counsel referred to a verdict of "not guilty by reason of insanity." [e. g. TR. at 654, 664.] In addition, several of the instructions proposed by defense counsel and rejected by the court incorporated the NGI verdict language. [TR. at 727-28] Appellant cannot now object to the use by the court of specific wording his own counsel used and proposed for inclusion in the instructions. Cf. United States v. Easterly, 5 Cir. 1971, 444 F.2d 1236, 1240; Bianchi v. United States, 8 Cir., 219 F.2d 182, 194, cert. denied, 1955, 349 U.S. 915, 75 S. Ct. 604, 99 L. Ed. 1249.²¹ 

C. TURNING McCRACKEN "A LOOSE"

We have concluded that instructing the jury with the NGI alternative verdict is not, standing alone, reversible error, and have disclaimed any intention of expressing a final opinion about the wisdom of employing that verdict alternative. Nevertheless, the case sub judice illustrates dramatically one problem that can arise when the NGI language is used to formulate a verdict-that it may not stand alone. The reason for the problem is simple enough:

Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning.

Lyles v. United States, 1957, 103 U.S. App.D.C. 22, 254 F.2d 725, 728, cert. denied, 1958, 356 U.S. 961, 78 S. Ct. 997, 2 L. Ed. 2d 1067.

The lack of a common understanding of the meaning of the NGI verdict cannot be attributed solely to limited legal education of the public in general and jurors in particular, since the legal meaning of the NGI verdict in fact varies not only from state to state, but from state to federal practice. Given the manifest possibility of juror confusion, a trial judge who for whatever reason employs that language might understandably desire that the jury "know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts." Lyles v. United States, supra, 254 F.2d at 728.

The desire to prevent jury confusion and misunderstanding led to the D.C. Circuit to require, whenever the defense of insanity is fairly raised and unless the defendant affirmatively requests omission, carefully framed instructions explaining the NGI verdict alternative. McDonald v. United States, 1962, 114 U.S.App.D.C. 120, 312 F.2d 847, 851; Lyles v. United States, supra, 254 F.2d at 728. See generally Note, 16 Wayne State L.Rev. 1197, 1199-1201 (1970).²²  Because of the special D.C. statute, any assumption by the jury that if acquitted because of insanity the defendant will necessarily go free is simply erroneous. If allowed to exist in the jury's mind, this erroneous assumption might well lead them to convict the defendant despite strong evidence of insanity at the time of the offense²³ -thus the need for instructions imparting "a sufficient intimation of continued incarceration to dull the danger of the jury's having a vision of appellant walking out of the courtroom a free man upon its return of an insanity verdict." United States v. Grimes, 1969, 137 U.S.App.D.C. 184, 421 F.2d 1119, 1125, cert. denied, 1970, 398 U.S. 932, 90 S. Ct. 1831, 26 L. Ed. 2d 98.

Given the lack of any comparable statute applicable to other federal courts, it is obvious that the instruction on the consequences of an NGI verdict used in the D.C. Circuit would be inapposite outside the District of Columbia. Accordingly, various courts, including this one, have held that it is not error for a trial judge to refuse to give an instruction regarding hospitalization following an NGI verdict. E. g., United States v. Borum, 10 Cir. 1972, 464 F.2d 896, 900-901; Apgar v. United States, 8 Cir. 1971, 440 F.2d 733, 737; White v. United States, 5 Cir. 1967, 387 F.2d 367; Pope v. United States, 8 Cir. 1967, 372 F.2d 710, 731, vacated, 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968); Powers v. United States, 10 Cir. 1962, 305 F.2d 157, 158, cert. denied, 1963, 375 U.S. 858, 84 S. Ct. 123, 11 L. Ed. 2d 85; Pope v. United States, 5 Cir. 1962, 298 F.2d 507, 508-509, cert. denied, 1965, 381 U.S. 941, 85 S. Ct. 1776, 14 L. Ed. 2d 704. See I Devitt & Blackmar, supra note 20.²⁴  The question in the case at bar is whether it was error for the trial judge to instruct the jury as to the correct consequences under the law of a verdict of acquittal by reason of insanity.