MATTER OF LOMAX, 367 A.2d 1272 (D.C. 1976)

No. 10311.District of Columbia Court of Appeals.Argued May 18, 1976.
Decided December 20, 1976. Rehearing en Banc Granted April 19, 1977, and Judgment of December 20, 1976, Vacated.

Appeal from the Superior Court, District of Columbia, Joseph M. F. Ryan, Jr., J.

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Alexia Morrison, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry and John C. Martin, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant Superintendent, Saint Elizabeths Hospital.

Silas J. Wasserstrom, Public Defender Service, Washington, D.C., with whom Frederick H. Weisberg, Public Defender Service, Washington, D.C., was on the brief, for appellee.

Before FICKLING, HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

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

I
For the purpose of the proceedings which are the subject of this appeal, Mr. Lomax was admitted to Saint Elizabeths Hospital on August 25, 1975, pursuant to the emergency hospitalization provision of D.C. Code 1973, § 21-521.[1]
The Superintendent

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then petitioned the court for appellee’s judicial hospitalization. Id. § 21-541. In accordance with § 21-542, the Mental Health Commission held several hearings to determine whether appellee should be hospitalized. Its report recommended either his detention at Saint Elizabeths for an indeterminate period or his placement in a foster care home. Appellee, through counsel, demanded a jury trial.[2] See D.C. Code 1973, § 21-544.

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

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

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

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

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

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

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

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

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Court. See §§ 21-544 and -545. We need not reach this issue, however.

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

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

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

The double jeopardy clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . .” While we eschew reliance upon the labels of “civil” or “criminal”, the nature of a mental health proceeding is fundamentally

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distinguishable from the type of action to which the double jeopardy bar applies. The notion underlying the prohibition against double jeopardy is that an individual should not be twice tried or convicted for the same offense. See United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). A person alleged to be mentally ill is not on trial for having committed an “offense”, and we do not view civil commitment — aimed basically at treatment for the afflicted individual — as comparable to punishment for the conviction of a crime.

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

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

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

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

Additionally, appellee argues that to allow this appeal would betray the legislative design of the Hospitalization of the Mentally Ill Act by frustrating the policy of expedited proceedings. We fail to see

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

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

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

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

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

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

There is, in addition, ample precedent for staying the release of persons who have been declared improperly confined while the adverse party takes an appeal. In Breed v. Jones, supra, 421 U.S. at 541, 95 S.Ct. 1779, the Supreme Court made no objection to the Ninth Circuit’s stay of its order granting a writ of habeas corpus. The United States Court of Appeals for this circuit similarly has stayed the release of a person it held to have been wrongfully

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committed. United States v. Wright, 167 U.S.App.D.C. 309, 313, 511 F.2d 1311, 1315 (1975). The Second Circuit has stayed the release on bail of habeas corpus petitioners pending the state’s appeal from a District Court decision granting the writ. United States ex rel. Rice v. Vincent, 486 F.2d 215 (2d Cir. 1973). The instant stay presents no due process problem.[9]

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

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

On the other hand, the two additional disputed comments were improper, and one called for granting the requested mistrial. In the course of her opening statement, counsel asserted that appellee’s proof would show that he had been tried by a jury some months before in another mental health proceeding and that there the jury had concluded that appellee did not present a danger to himself or to others. Counsel additionally stated that Dr. Smothers, the hospital’s expert witness, was “chagrined” at having failed to secure appellee’s involuntary commitment in that prior trial, and that his persistence in seeking

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appellee’s hospitalization was the result of his desire to have more control over appellee than was necessary. We have found nothing in the record on which such an argument impugning the motives of the doctor rationally could have been based, and thus we find these statements to be unsupported and unwarranted allegations of bias. See United States v. Jones, 140 U.S.App.D.C. 1, 2 n. 5, 433 F.2d 1107, 1108 n. 5 (1970) Johnson v. United States, 121 U.S.App.D.C. 19, 21, 347 F.2d 803, 805 (1965). However, as the court gave a subsequent cautionary instruction which warned the jurors of the limited nature of opening argument, we would not reverse on the basis of those remarks alone.

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

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

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

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MACK, Associate Judge, dissenting:

On two separate occasions in 1975, a jury found that respondent Lomax, while mentally ill, was not a danger to himself or others, and a court ordered him released from Saint Elizabeths Hospital. Petitioner, the Acting Superintendent of the Hospital, speaking through his representative, the United States Attorney, has asked this court to insure the continued confinement of Mr. Lomax, to reverse the last order of release, and to remand for a new trial. Through the tortuous process of rejecting the respondent’s position, the majority opinion holds that the government has a right of appeal in an involuntary commitment proceeding pursuant to the District of Columbia Hospitalization of the Mentally Ill Act (the Act).[1] Having thus cleared the way for reversal of the release order, it holds that the trial court was required to declare a mistrial in response to certain remarks made by respondent’s counsel in the course of her opening statement. Finally and most importantly, it decides that pending resolution of the appeal and now retrial,[2] respondent may be confined involuntarily at Saint Elizabeths Hospital. I find these conclusions to be unjustified and disturbing.

I.
I turn first to the matter of the stay, because that is the authority under which Mr. Lomax is confined against his will at St. Elizabeths Hospital. Moreover, despite the rather cursory treatment given the stay by the majority,[3] the facts and considerations relative thereto go to the heart of the reasons why the government has no right of appeal.

On December 17, 1975, a jury found that Mr. Loma was mentally ill but was not likely to injure himself or others as a result of that illness if allowed to remain at liberty. The following day,[4] the trial court ordered respondent’s immediate release from the Hospital, pursuant to D.C. Code 1973, § 21-545(b). The government expressed its intention to appeal the jury verdict and the release order, and requested a stay of the order of release pending appeal. The trial judge denied the request. He did, however, delay the order for twenty-four hours to give the government time to seek a stay from this court, noting inter alia:

So, unless we are going to assume a paternalistic type of Government, and if we do that we have to scrap the Constitution, . . . you can’t deprive a person of life, liberty or property without due process of law. It is the Fifth Amendment which is directly effective on us, here. So I can’t deprive this man of his liberty one minute more than he should be deprived of it.
I certainly won’t give a ten day [s]tay. I’ll give you 24 hours to get to the Court of Appeals. I’ll stay it for 24 hours. I am reluctant to do that . . . .

On December 19, 1975, the United States Attorney filed in this court a notice of appeal and a motion for a stay pending appeal. The Motions Division ordered that the effectiveness of the trial court’s release order would be stayed pending further order of this court, following the filing of a response to the motion for a stay. The temporary stay remained in effect until January 21, 1976, when this court, without opinion, granted the government’s motion

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for a stay pending the outcome of this appeal. On March 22, 1976, respondent filed in this court a motion to reconsider the stay, attaching thereto a copy of a petition for writ of habeas corpus and supporting memorandum filed in the United States District Court on February 18, 1976, thus for the first time fully setting forth constitutional objections to his continued confinement.[5]

I believe that the stay was improvidently granted by this court, and I agree with Mr. Lomax that his continued confinement deprives him of his Fifth Amendment rights to substantive and procedural due process and equal protection of the laws.[6]

It seems to me that the due process clause means very little if it does not bar the unauthorized deprivation of liberty at issue here. Lawful authority for the involuntary confinement of Mr. Lomax ceased when the jury returned its verdict and the trial court ordered his release. Until that time, respondent’s confinement had been pursuant to the standards and procedures set forth in the Act.[7] Respondent should have been released pursuant to those standards and procedures, and h would have been released, but for the action of this court, which I find impossible to justify on either constitutional or statutory grounds.

It can no longer be doubted that involuntary commitment to a mental hospital is a deprivation of liberty which cannot be accomplished without due process of law. O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (Burger, C. J., concurring); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435
(1972); In re Ballay, 157 U.S.App.D.C. 59, 66, 482 F.2d 648, 655 (1973). Due process considerations are not solely procedural, but involve as well the substantive constitutional limitations on the power to commit. While the constitutional parameters of that power have not been definitively traced, this much is clear: “Commitment must be justified on the basis of a legitimate state interest. . . .” O’Connor v. Donaldson, supra 422 U.S. at 580, 95 S.Ct. at 2496.

The interests generally advanced under contemporary statutes as justification for involuntary commitment of mentally ill persons are the prevention of injury to the public, prevention of injury to the patient, and the need for care or treatment or

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training.[8] O’Connor v. Donaldson, supra at 573-74, 95 S.Ct. 2486; Jackson v. Indiana, supra 406 U.S. at 737, 92 S.Ct. 1845; Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). See generally Developments in the Law: Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190 (1974).

In the District of Columbia, the substantive limitations on the power to commit mentally ill persons are clearly defined in the Act. Congress has decreed that in this jurisdiction, civil commitment is justified only when the person is “mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty.”[9] The jury here found that such commitment was not justified, and there is evidence supporting such a finding. Apart from the conceded mental illness of respondent, the evidence generally pictured a man with physical ailments, human frailities and a wife who was either unable or unwilling to be his caretaker.[10]

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It is interesting to note that the trial court shared the reaction of the jury to such evidence.[11]

I have no doubt that petitioner and the medical experts who testified at trial in favor of the petition share a genuine and good faith belief that Mr. Lomax’s best interests would be served by involuntary commitment.[12] Clearly they disagree with the jury’s determination that Mr. Lomax is not committable.[13] However, neither the opinion of medical experts nor the order of this court constitutes statutory authority for the indefinite confinement of Mr. Lomax. Under the Act, that determination can only be made by the trial court or, as in this case, by the jury.

The significance of the jury’s role in such proceedings has been described by the Supreme Court in Humphrey v. Cady, supra 405 U.S. at 509, 92 S.Ct. at 1052:

Like most, if not all, other States with similar legislation, Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty. In making this determination, the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment. [Footnotes omitted.]

This jury concluded — as did the one before it — that respondent’s potential for doing harm was not
sufficiently great to justify “such a massive curtailment of liberty.” In sanctioning continued confinement, this court has, in effect, reversed that verdict. This is a denial of substantive due process.

The validity of the stay fares no better in a procedural due process analysis. Even assuming, arguendo, that there is a legitimate state interest which justifies depriving respondent of his liberty, it is, nonetheless, unconstitutional to achieve it in the manner chosen here. Respondent has been

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held twelve months, with no hearing, no statement of reasons, pursuant to no standards, and for an indefinite period.

While the concept of due process is a flexible one, it seems elementary that there is a denial of due process when a person is committed or held without a hearing. An individual is entitled to a hearing before he is deprived of any significant property interest.[14] Certainly an individual’s interest in his personal liberty — the freedom to come and go as he chooses, and the right to be let alone[15] — is more precious than any property. Mr. Lomax has been denied that freedom, contrary to established law.[16]

The majority opinion suggests that respondent’s continued detention is justified constitutionally because the Mental Health Commission hearing and findings more than satisfy the probable cause requirement of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). To the extent that I find Gerstein relevant, it is supportive of respondent’s position.[17] What Gerstein requires is not a hearing per se but a timely judicial determination of probable cause as a prerequisite to detention. Id. at 119-26, 95 S.Ct. 854. The Act, of course, requires no less. D.C. Code 1973, §§ 21-523-525; In re Barnard, 147 U.S.App.D.C. 302, 305-306, 455 F.2d 1370, 1373-74 (1971).

Surely my colleagues, by reliance on Gerstein, do not mean to suggest that the due process safeguards surrounding respondent’s initial confinement (that is, the judicial determination of probable cause which justified his detention pending trial) can also justify his post-trial detention. “[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Jackson

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v. Indiana, supra, 406 U.S. at 738, 92 S.Ct. at 1858. Thus, if the commitment is a short term confinement with a limited purpose, lesser safeguards may be appropriate, but then the duration of the confinement must be strictly limited. Where the commitment is permanent in its practical effect, it requires safeguards commensurate with a long term commitment Id. at 723-38, 92 S.Ct. 1845. “A confinement that is in fact indeterminate cannot rest on procedures designed to authorize a brief period of observation.” McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249, 92 S.Ct. 2083, 2087, 32 L.Ed.2d 719 (1972).

Clearly, then, petitioner could not lawfully have confined respondent indefinitely, and without a trial, solely on the basis of the emergency admission or temporary commitment. It follows also that his post-trial confinement cannot be justified on the basis of the temporary commitment, since the purpose of that short term detention was to determine respondent’s need for judicial commitment, and that purpose was served when the jury returned its verdict.

Just as emergency detention is justified only until a probable cause hearing can be conducted, temporary detention following a finding of probable cause to believe that confinement is necessary can be justified only for the length of time required to arrange a full hearing on the need for commitment.[18]

Although respondent’s involuntary commitment was initially permissible, it could not constitutionally continue after that basis no longer existed.[19] O’Connor v. Donaldson, supra, 422 U.S. at 575, 95 S.Ct. 2486; Jackson v. Indiana, supra, 406 U.S. at 738, 92 S.Ct. 1845; McNeil v. Director, Patuxent Institution, supra. Thus the stay ordered by this court operated as a new commitment, and in my opinion its constitutionality fails.

II.
I would therefore dismiss this appeal and hold that the petitioner in a civil commitment proceeding has no right to appeal from a verdict in favor of the respondent. In my opinion, no other conclusion is possible in view of the design and intent of the Act. Keeping in mind that “[a] statute sanctioning such a drastic curtailment of the rights of citizens must be narrowly, even grudgingly, construed,”[20]
it is significant that the Act does not provide, nor even suggest, that a petitioner in such a proceeding might appeal. Significantly also, the applicable Rules mention only an appeal by the respondent. Super.Ct.Ment.

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H.R. 6(c). Furthermore, it is not necessary to imply such a right to further the purposes of the statute; quite the contrary. As respondent suggests, common sense dictates that it is meaningless to infer a right to appeal and, if successful, to retry the patient, since at trial, it is always the patient’s current mental status which is at issue.[21] As the majority recognizes, nothing prevents the petitioner from bringing a new petition to commit the patient whenever such action is warranted by his mental condition. Thus the only discernible governmental interest in an appeal is to continue the confinement of the respondent. Yet the mandatory language of Section 21-545(b) requires his release. Continued confinement subverts that legislative mandate.

I am unpersuaded by petitioner’s claim, accepted by the majority, that D.C. Code 1973, § 11-721, is applicable to proceedings under the Act. I fail to see how the Superintendent of Saint Elizabeths Hospital is “aggrieved” by an order to release a patient who has been found by a jury not to be properly committable under the terms of the Act. The majority, drawing from precedents in juvenile delinquency proceedings as to who is an aggrieved party, correctly observes that Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346
(1975), would now preclude an appeal by the government in such cases. It goes on to argue that there are obvious distinctions between juvenile delinquency proceedings and mental health proceedings, but we are left wondering what those distinctions are. At least in this jurisdiction, the distinctions are without true significance, since in both, the interest in liberty is at stake. In re Hodges, D.C.App., 325 A.2d 605 (1974); In re Ballay, supra at 79-80, 482 F.2d at 668-69.

I am also concerned with the majority’s summary recital that it finds “no statutory, constitutional, or policy grounds” which would operate to defeat our jurisdiction under Section 11-721. The constitutional considerations are obvious and the statutory considerations only slightly less so. Certainly a time-consuming appeal, which

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disrupts the expedited timetable forming the very core of the Act,[22] is inconsistent therewith. The Act’s primary thrust was to secure the civil and constitutional rights of a long-neglected group.[23] It evolved out of a “profound congressional concern for the liberties of the mentally ill.”Covington v. Harris, 136 U.S.App.D.C. 35, 41, 419 F.2d 617, 623 (1969). Thus, provisions were written to insure that no one would be hospitalized against his or her will for an unnecessarily lengthy period, unless a jury or trial court determined the patient to be mentally ill and
dangerous. It is noteworthy here that even with several continuances of the Mental Health Commission hearing, less than four months elapsed between the emergency admission of Mr. Lomax and the signing of the release order, in conformance with the Act’s provisions. In contrast, his confinement by order of this court has already lasted twelve months and could last indefinitely. This is the very indignity that the Act was designed to prevent.

I think the facts of this case demonstrate quite vividly the danger of inferring a right to appeal by the government. Unless it is held that that right does not include the ancillary right to seek a stay of the release order pending appeal, I see a threat to individual rights and the emasculation of a statute specifically tailored to protect those less able to assert such rights.

III.
Finally, the majority holds that the respondent’s trial counsel’s opening remarks were so prejudicial to the government as to require reversal of the verdict in his favor. While I see no reason to reach this issue, I am convinced that if any error occurred during the opening statement, it was cured by the instructions of the trial judge, whose refusal to declare a mistrial certainly did not, in my opinion, amount to an abuse of discretion.[24]

Quite apart from counsel’s isolated comment, several witnesses made reference to respondent’s prior trial. Such references can be expected in any retrial situation and certainly could not have been unexpected in this case in view of the trial court’s denial of the request — made by respondent’s counsel — to limit testimony to events subsequent to the first trial. Moreover, I fail to see how the government is prejudiced by a jury being informed that the respondent was found not dangerous at some prior time, since the ultimate issue is the respondent’s present mental condition and not his condition at the time of the previous

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verdict.[25] Both the majority and petitioner have noted that the outcome of the prior trial was “irrelevant.” In view of the likelihood of disclosure of the prior trial, I think it preferable that it be made by the trial court, accompanied by appropriate instructions. I offer, therefore, a suggestion previously made in reference to the identical problem arising in the context of criminal trials:

In retrials, references to previous trials are likely to be made. Such references may sometimes be prejudicial to the party who does not make them. We think the ultimate objective of a fair trial is most likely to be achieved if at the outset of a retrial the judge gives a cautionary instruction, as some judges in this circuit do, to the following effect: ‘The defendant has been tried before. [If there has been a mistrial, so state.] You have no concern with that. The law charges you to render a verdict solely on the evidence in this trial’ [Carsey v. United States, 129 U.S.App.D.C. 205, 207, 392 F.2d 810, 812 (1967).]

Such an instruction seems particularly appropriate where, as here, the issues before the two juries are not in fact identical.

IV.
In conclusion, I am concerned that the majority today is destroying the effectiveness of a statutory scheme designed to protect the rights of the mentally ill. It is doing so at a time when other jurisdictions are adopting the protections employed therein as representing an enlightened approach and one required by the Constitution.[26] I would dismiss this appeal, lift the court’s stay, and permit Mr. Lomax to be released from his illegal confinement. I respectfully dissent.