(dissenting):
Appellant’s convictions on three counts each of housebreaking and robbery, and verdicts of not guilty by reason of insanity on two counts of rape were affirmed by this court on appeal. Kent v. United States, 119 U.S.App.D.C. 378, 343 F.2d 247 (1964). Thereafter, “[b]e-cause * * * the Juvenile Court’s order waiving jurisdiction of petitioner *413was entered without compliance with” procedures newly announced by the Supreme Court it remanded the case to the District Court for the limited purpose of having that court re-evaluate the waiver made in 1961. Kent v. United States, 383 U.S. 541, 543, 86 S.Ct. 1045, 1048, 16 L.Ed.2d 84 (1966). The Supreme Court decided only that the philosophy of the juvenile court system made waiver from that court a critical stage in the proceedings and that “there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons.” Id,, at 554, 86 S.Ct. at 1053. The Supreme Court expressed no views whatever on the ultimate correctness of the waiver, nor did it give any indication that Appellant should not be punished criminally. The Court said: “We do not consider whether, on the merits, Kent should have been transferred; * * Ibid. The sole basis for the Supreme Court’s holding was the lack of procedural regularity in not affording Appellant a formal adversary hearing on the question of waiver, accompanied by the right to counsel, access to social files of the Juvenile Court, and findings based on reasons.
At the remand hearing the District Court, constituted as a Juvenile Court pursuant to statutory power not challenged here, conducted a two-day eviden-tiary hearing and determined that Appellant’s waiver to the District Court was proper.1 The majority now reverses that determination.
I do not agree that Appellant’s case was improperly waived from the Juvenile Court to the District Court. Appellant’s entire record, including not only the evidence in the District Court trial but also his own account of multiple rapes and robberies for which he was never criminally charged,2 and his entire social and psychiatric file were known. This revealed, in findings not challenged, that the “child” with whom we are dealing was “on the verge of killing” when arrested; was charged with three capital offenses; had “engaged in extensive criminal activity characterized by aggressiveness and violence” while under the probationary supervision of the Juvenile Court for previous offenses,3 had not responded to the efforts and facilities of the Juvenile Court; and was suffering from mental disorder for which the period of rehabilitation could reason- • ably be assumed to exceed the time limits of Juvenile Court jurisdiction.
The majority casually asserts that due to “defective findings” the District Court’s decision cannot be sustained. Even assuming, as the majority contends, that the District Court was in error in some aspects of its findings, we should affirm if the result reached is correct; the law requires us to affirm unless the District Judge is “clearly erroneous.” Review in this court of District Court findings which rest on observations of the accused, detailed judicial and social files, and vast amounts *414of testimony, is not a contest of private opinion, or our sociological leanings versus those of others. Our review has a narrow scope and we are as much subject to the commands of statutes and rules as are all others.
The nature of the District Court’s “defective findings” which the majority asserts are based on “erroneous assumptions and unwarranted speculations” is far from that. For instance, the majority attacks the District Court’s fear that if civilly committed, Appellant' would not be placed in the maximum security ward at St. Elizabeths Hospital. But the only assurance that he would be placed there if civilly committed is the majority’s own assumptions and speculations. There is not a scintilla of evidence in this record to support the majority’s freewheeling speculations that Kent would have been kept under maximum security. On the contrary, the evidence satisfied the District Court that the prevailing practice had been to place civilly committed patients in non-maximum security wards. The majority also refers to the finding that a person civilly committed to St. Elizabeths Hospital may be released by a doctor, without judicial order or review. This, of course, is neither an assumption nor a speculation —it is the law. 21 D.C.Code § 548 (1967). But the majority reads into the opinion of the District Court an implication that Kent might be negligently released while still dangerous. As I read the findings, the District Judge was simply showing a proper concern for the protection of the public and Kent. Nor did the District Court find, as the majority opinion states, that the Juvenile Court could not reinstate the charges. It concluded only that 1961 Juvenile Court practice was that civil commitment was not attempted until after termination of the case in the Juvenile Court.
The majority opinion asserts that the District Court turned “civil commitment law on its head” because it found that Kent’s dangerousness was a factor to consider on the waiver issue. The majority view seems to be that if Kent were potentially dangerous to himself or others he should have been committed, not tried, and that neither the District Court nor the Juvenile Court could assert jurisdiction over him. But the District Court was not called upon to determine whether or not Kent should be committed — in which ease dangerousness would be a factor in favor of commitment. It was asked instead to determine whether the Juvenile Court or the District Court should have original jurisdiction over Kent. Unless we are to say that the District Court had no duty to protect the public from Kent and Kent from himself, the District Court plainly was correct in weighing his dangerousness and trying to discern what were the best “mechanisms by which society could be protected” — to borrow a phrase from Judge Bazelon. (Page 411).
I suggest that it is the majority who turn the law “on its head.” The District Court had a narrow issue before it —if Kent were not to be waived, all the procedures of the Juvenile Court would take over, but if he were waived, he would be like any other person charged with a serious crime. In the District Court he could assert absence of criminal responsibility and this could lead him to treatment at St. Elizabeths Hospital after verdict. Alternatively, the District Court could constitute itself as a juvenile court and have broader facilities than available to the Juvenile Court itself. Judge McGowan, in his earlier opinion in this very ease, noted that if waived Kent “ ‘will have in the District Court all the rights in relation to his alleged psychiatric problems that he would have in the Juvenile Court.’ ” Kent v. United States, 119 U.S.App.D.C. 378, 385, 343 F.2d 247, 254 (1964). Judge McGowan was there quoting what Judge Washington had said in yet another opinion relating to this appellant. Kent v. Reid, 114 U.S.App.D.C. 330, 333, 316 F.2d 331, 334 (1963). Judge McGowan further observed that “the District Court’s range of opportunity in this respect exceeds that of the Juvenile Court *415* * * ” 119 U.S.App.D.C. at 385, 343 F.2d at 254.
The result of the approach of the majority is to re-constitute this court as the Juvenile Court and to reach a factual determination contrary to that already carefully worked out in the District Court sitting as a juvenile court. The Supreme Court could not have been more explicit about where waiver properly belongs: “the statute contemplates that the Juvenile Court should have considerable latitude within which to determine whether it should retain jurisdiction * * *. The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached.” 383 U.S. at 552-553, 86 S.Ct. at 1053. The discretionary powers of the trier, so plainly underscored by the Supreme Court, are now cavalierly taken over by this court. There is no claim that the District Court employed the wrong standards for its- re-appraisal of the waiver; indeed the prior opinion of this court gave express approval of the “waiver policy memorandum” and the Supreme Court did not disturb that holding. Perhaps the more serious fault of the majority holding is that it overrules the prior decisions of this court without even giving the reasons or alluding to what Judge McGowan said previously, much less requiring that the issues be submitted to the court sitting en banc. Judge McGowan wrote, when Kent’s case was last here:
The mental condition of a juvenile is obviously a relevant factor within the meaning of Policy Memorandum No. 7. We assume that the Juvenile Court here was well aware that there might be a question in appellant’s case as to whether his mental condition justified the imposition of criminal responsibility upon him. But we do not consider that the Juvenile Court either can or must finally and definitely resolve this issue as a pre-condition to a valid waiver. Waiver does not fix criminal responsibility. As in this case, it simply leaves that to the tribunal normally charged with doing so —the District Court. It is by no means clear, as appellant seems contrarily to assume, that the facilities presently available to the Juvenile Court for the diagnosis and treatment of mental disease are as adequate as they should be; or that, indeed, they approximate those serving the criminal law system. A Juvenile Court judge, confronted with the possibility of mental disease, is hardly disabled from waiving solely by a concern that the relationship of that possibility to criminal responsibility may not be properly established in the District Court or, if no responsibility for this reason is ultimately found, that the defendant cannot thereafter be accorded proper treatment. * * * In any event, the District Court is equipped with both the authority and the facilities to explore the mental difficulties of defendants and to effect hospitalization in proper cases. We pointed this out expressly in appellant’s earlier appeal, where we said that "it seems unnecessary to note that the appellant will have in the District Court all the rights in relation to his alleged psychiatric problems that he would have in the Juvenile Court.” Kent v. Reid, 114 U.S.App.D.C. at 333, 316 F.2d at 334. Indeed, it can be urged that the District Court’s range of opportunity in this respect exceeds that of the Juvenile Court, especially considering the limited time available for cure and rehabilitation under a Juvenile Court commitment. * * *
119 U.S.App.D.C. at 385, 343 F.2d at 254 (emphasis added) (footnote omitted). By holding that a juvenile who has a mental disorder cannot be waived, the majority overrules the express statement of the law in the prior appeal of the present case.
As a result of the criminal proceedings in the District Court, Kent was placed in the maximum-security ward at St. Elizabeths Hospital. This was error, says the majority. He should have been *416civilly committed and then placed in the maximum-security ward at St. Eliza-beths Hospital. In other words, it shows a lack of proper regard for “Kent’s care and rehabilitation” to have placed him precisely where the majority now vehemently argues he should be placed. So convinced is the majority that Kent belongs in the precise facility where he has been sent that it has now determined to keep him there on its own motion— completely without statutory authority or any “due process” — even while invalidating his commitment to St. Elizabeths by the District Court.
The majority’s mandate is stayed only until civil commitment proceedings are commenced. Should Kent be found not to be civilly committable, then it would appear that he should go free, notwithstanding the majority assurance that Kent can be held under maximum security.4
. The District Court on remand was to consider Kent’s waiver nunc pro tunc in the circumstances of 1961. But in a nunc pro tunc reconsideration judges cannot close their eyes to the stubborn fact that in 1968 Kent is 23 years old. Turning the clock back in these circumstances is about as productive as trying to “unring the bell.” Kent is not a juvenile but, on this record, it is uncontested that he is a dangerous person who has committed numerous grave crimes of violence. Can we assume that a juvenile court is equipped to deal with this kind of person?
. The record reveals not only the’ charges for which he was eventually tried, but, within a time span of six months, seven separate incidents, each involving housebreaking, robbery and sexual assault.
. Appellant’s prior contact with the Juvenile Court was based on four housebreak-ings, two purse-snatchings and one Peeping Tom offense, all within a period of three years and some of which occurred while on probation for prior offenses.
. The basic fallacy of relying on civil commitment procedures to deal with criminal conduct is that civil commitment was not designed for that purpose. The equal protection claim is not a valid one; persons for whom civil commitment statutes were designed are not persons who have committed robbery, rape or murder. Convicted felons are not entitled to precisely the same processes as senile old people. Lawmakers in recent years have been sensitive to the need to make civil commitment difficult, recognizing the dangers of relatives “farming” out their kindred into mental institutions for motives not always worthy.