Statement of Chief Judge Bazelon Why He Believes The Petition for Rehearing En Banc Should Be Granted
BAZELON, Chief Judge(statement on denial of rehearing en banc):
I vote for rehearing en banc. I agree with Judge Wright that some evidence of mental illness was adduced, so that the insanity charge was required.
The court’s opinion, as amended,1 recognizes that evidence of addiction is probative on the issue of insanity. Indeed, the general medical consensus is that an established addiction process is a significant symptom2 of mental disease.3 But the court rejects this symptom, apparently because not all addicts are mentally ill. It is as if the court feared that giving the instruction would be equivalent to telling the jury that addiction is a mental illness. Of course, there is no such equivalency. Indeed, this court has unanimously stated that the amount of evidence requiring an insanity charge “need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.” 4 The fact that not all addicts are mentally ill is no reason to prevent the jury from considering whether the addiction of the accused in a particular case reflects mental illness.
It is well established that
[I]n criminal cases the defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.” 5
*50We found that the insanity instruction was therefore required in a case where it was not requested, and the defendant’s reliance on the insanity defense was not articulated by his counsel at trial.6 Here, there was not only a request, but the entire defense went to the issue of responsibility. The failure to instruct, under the circumstances, was tantamount to an instruction to convict.
Although the insanity charge was not only required but requested, the defense was so poorly presented as to raise fundamental questions about the adequacy of the defense afforded indigent persons. Defense counsel called three psychiatrists. The total time consumed by their testimony, including qualification and cross-examination, cannot have exceeded twenty minutes. Other than reference to Heard’s statement that he had been using drugs since the 1940’s, there was a complete absence of testimony about his personal history. Other than conclusory statements to the effect that he was “without mental disease or defect,” there was no testimony about his personality structure or mental condition. There was no explanation of the relationship of drug addiction to mental disease.7 Indeed, there was no meaningful exploration even of Heard’s addiction process. Had the jury been charged on the question of responsibility, it would not have known what was meant by the statement that Heard was addicted.8 It would not have known what eifect addiction has on mental processes, except in the situation of deprivation, conceded not to have been present.9 It would not have known whether addiction is symptomatic of mental disease, what the nature of that disease might be, or how it would bear on the insanity defense. It could not have assessed the adequacy of the psychiatric examination,10 or have understood why *51psychiatrists who in other trials stressed the relationship between chronic addiction and disease11 stated in this trial, in conclusory terms, that Heard had no mental disease or defect. This state of the record makes the court’s holding a very limited one indeed.12
This is emphasized by a comparison with Horton v. United States.13 There counsel, supported by a research grant, had spent hours in preparation of the defense. The defendant was examined by psychiatrists from public and private practice. They testified about both his addiction and the disordered personality of which they found it symptomatic. The relationship of addiction and disease was thoroughly explored, and the insanity instruction was given as a matter of course.
It might be unfair to blame appointed trial counsel in this and other cases for past inadequacies in the presentation of the insanity defense. We must bear in mind that counsel either volunteers or is drafted to serve without compensation and at great inconvenience and cost to himself. “[I]t is very often necessary to appoint lawyers who understandably know little about [criminal] practice, and even less about the special difficulties of presenting the insanity defense. The Bar has responded beyond the call of duty and good will.”14 More important, until relatively recent years it had not been made clear that the insanity defense requires behavioral information in depth, and that defense counsel, prosecutor and court have a duty to insure an adequate presentation for an indigent defendant.15 New understanding requires abandonment of old practices. It is not necessarily criticism of those who acted in accordance with prior understandings to say that a great deal more than was offered in this case is now required to maintain the integrity of the adversary system.16
. Compare p. 44 of the opinion, issued December 17, 1964.
. That is, it points to a medically established, statistically significant likelihood that disease is present. Like any other symptom, it may be misleading in any given case. This possibility does not destroy the diagnostic and hence evi-dentiary significance, in an inquiry into mental condition, of a description of the subject as addicted.
. See the American Psychiatric Association’s Diagnostic and Statistical Manual, Mental Disorders 38-39 (1954); Noyes & Kolb, Modern Clinical Psychiatry 473-81 (1963); Council on Mental Health of the American Medical Ass’n, Report on Narcotic Addiction 20-21 (1957): Brill, Misapprehensions about Drug Addiction: Some Origins and Repercussions, 4 Comprehensive Psychiatry 150, 157-58 (1963) (“Experienced psychiatrists who deal with addicts uniformly agree that the addict who appears for treatment in public facilities is uniformly a seriously disturbed person * * *.”); Kolb, Drug Addiction 38 (1962); testimony of Drs. Hamman and Sprehn in Horton v. United States, 115 U.S.App.D.C. 184, 317 F.2d 595 (1963); testimony of Drs. Hamman and Dobbs in Hightower v. United States, 117 U.S.App.D.C. 43, 325 F.2d 616 (1964).
Compare Robinson v. California, 370 U.S. 660, 667 and n. 8, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Horton v. United States, supra; Brown v. United States, 118 U.S.App.D.C. 76, 331 F.2d 822 (1964); Castle v. United States, (1964), 120 U.S.App.D.C. -, 347 F.2d 492; Jackson v. United States, 118 U.S.App.D.C. 341, 343, 336 F.2d 579, 581 (1964) (separate op.); National Council on Crime and Delinquency, Advisory Council of Judges, Report (1964); Hightower v. United States, 117 U.S.App.D.C. 43, 325 F.2d 616 (1964) (all judges apparently agreed that had jury trial not been waived, submission to the jury of the issue would have been warranted); and “not guilty by reason of insanity” verdicts returned in United States v. Prince, D.D.C.Crim. No. 349-63 (March 17, 1963); United States v. Bell, D.D.C. Crim. No. 969-61 (May 22, 1962); United States v. Purcell, D.D.C.Crim. No. 487-62 (Jan. 14, 1963); United States v. Wallace Carroll, D.D.C.Crim. No. 383-62 (June 28, 1962).
. McDonald v. United States, 114 U.S.App.D.C. 120, 122, 312 F.2d 847, 849 (1962).
. Tatum v. United States, 88 U.S.App.D.C. 386, 391, 190 F.2d 612, 617 (1951); *50accord: United States v. Indian Trailer Corp., 226 F.2d 595 (7th Cir. 1955); Perez v. United States, 297 F.2d 12 (5th Cir. 1961): Phillips v. United States, 311 F.2d 204 (10th Cir. 1962).
. Tatum v. United States, note 5 supra.
. See note 3 supra.
. The term “addition” has a variety of connotations in the narcotics context, ranging from a simple habit of personal use to a chronic state of physiological as well as psychological need. Chein, The Status of Sociologieal and Social Psychological Knowledge Concerning Narcotics, in Narcotic Drug Addiction Problems (Livingston, Ed., 1963) at 146, 148-49. Some contend that a person is not an addict until he experiences withdrawal symptoms, or accepts “addiction” as part of his personality structure. Lindesmith, Opiate Addiction 67-112 (1957). A common definition is that of the World Health Organization:
“Drug addiction is a state of periodic or chronic intoxication detrimental to the individual and to society, produced by the repeated consumption of a drug (natural or synthetic). Its characteristics include: (1) an overpowering desire or need (compulsion) to continue talcing the drug and to obtain it by any means; (2) a tendency to increase the dose; and (3) a psychic (psycho-logic) and sometimes a physical dependence on the effects of the drug (often called habituation).”
The uncontested claims of appellant are that he has been using drugs since the late 1940’s; the psychiatrists testified at trial that he has been an addict since the mid-50’s. The meaning of the distinction was not explored at trial, so it is not possible to know what meaning the experts attached to “addiction.” The depth of a person’s involvement with drugs would certainly be a relevant inquiry where evidence of “addiction” was preferred as bearing on the insanity defense.
. Counsel did not even attempt to draw out the possibility that Heard may have been acting out of fear of future deprivation at the time and that therefore, although he seemed to have an ample supply of narcotics, his acts were not responsible.
. See the authorities cited at note 3 in Judge Wright’s amended dissent, and the successful motion for independent psychiatric examination in United States v. Coleman, D.D.C.Crim. Nos. 1229-63 and 83-64; compare Blunt v. United States, 100 U.S.App.D.C. 266, 275 and n. 23, 244 F.2d 355, 364 and n. 23 (1957).
. See the transcripts in Horton v. United States, and Hightower v. United States, note 3 supra.
. For example, it does not alter our unanimous acceptance in Brown v. United States, 118 U.S.App.D.C. 76, 331 F.2d 822 (1964), of the established medical view of addiction, note 3 supra.
. Note 3 supra.
. Jackson v. United States, 118 U.S.App.D.C. 341, 347, 336 F.2d 579, 585 (1964) (separate op.).
. Bollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269, decided Oct. 1, 1964; Jackson v. United States, note 14 supra; see Adams v. United States, 119 U.S.App.D.C. 152, 337 F.2d 548 (1964) (dissenting opinion).
. For example, counsel may need to consult with psychiatrists in order effectively to develop and present the defense. Compare Whalem v. United States, 120 U.S.App.D.C.-at p.-, 346 F.2d 812, at p. 823, decided April 23, 1965, (dissenting opinion).