(dissenting):
The exhaustive study which Chief Judge Bazelon has done of this case, reflecting his deep interest in the field of psychiatry as applied to criminal behavior, is indeed a convincing one. But, in contrast to its effect on my two colleagues, I must say that it convinces me that the trial judge did a superb job in handling this case and that no remand for any further proceedings is necessary.
I. The Issue Procedurally
First of all, we should understand the procedural situation as the case comes to us. We are not dealing with a situation in which a defendant was in any way denied the fullest development of a desired insanity defense. We are not dealing with a situation in which the trial judge, on his own volition, sought to interject an insanity defense and in some way prejudiced the trial position of the defendant. We are dealing with a situation in which the defendant, after having been examined and specifically found competent to stand trial, repeatedly made a decision not to plead an insanity defense in his own behalf; in which defendant’s counsel declined to cross-examine Government witnesses on the question of mental illness because the defense was not raising an insanity defense ; and in which as a final result the District Judge, after the most careful consideration, decided that he should not sua sponte inject an unwanted insanity defense into the case. We are, therefore dealing only with a possible abuse of discretion in the trial judge’s declination to interpose the insanity defense sua sponte.
*1162My two colleagues find that the trial judge made such a decision after an inadequate inquiry. On the contrary, I find in the record and in Judge Baze-lon’s opinion ample evidence that the court reached this conclusion only after the most detailed study of the question from the very beginning of the trial. First, the trial judge ordered a bifurcated trial, with the insanity defense, if any, to be tried separately only if there was a conviction. Secondly, the trial judge very wisely deferred his own decision on whether there should be an insanity defense interjected by him, since the defendant had strongly refused to have a plea of insanity made, until after the entire trial had been completed and a special hearing held on this question. Thirdly, assuming his own possible responsibility to interpose an insanity defense later if such were warranted, the trial judge carefully observed the defendant’s conduct in the courtroom throughout the trial, directed the marshals and jail attendants to observe the defendant outside the courtroom, at such times when he was not aware that he was under observation, and to report their observations to the trial judge.
After studying the four written reports of the three psychiatrists and one psychologist, the trial judge then at a special hearing after the trial heard the testimony of the two psychiatrists proffered by the Government. He then heard testimony regarding an insanity defense from the defendant himself. The psychiatrist and the psychologist who had examined the defendant at the request of defense counsel were not heard, simply because the defense counsel did not wish to put those witnesses forward to raise an insanity defense, but the trial judge had received and had studied their reports in comparison with those of the two psychiatrists proffered by the Government.
II. Evidence as to Sanity at the Time of the Offense
Neither the psychologist Dr. Dockett in his page and a half report1 nor the two Government psychiatrists found that *1163the defendant was suffering from a mental disease at the time of the crime; only Dr. Gullattee so stated in her page and a half report.2
Under our test in United States v. Brawner3 I would not read Dr. Doekett’s testimony as finding Robertson with a “mental disease or defect excluding responsibility.” 4 But however Dr. Dockett’s and Dr. Gullattee’s conclusions would fit the test of Brawner, the trial judge has had that before him in the form of their written reports, even though they were not called to the stand to testify.
The psychiatrist Dr. Marland testified unequivocally that Robertson had an “anti-social personality” “of a severe type,” that this was not “a mental disease or defect,” and that Robertson was not suffering from “a mental disease or defect” on the day of the crime. Dr. Marland’s conclusion was based on five interviews with the defendant, his review of the ward notes of observations made by the staff at St. Elizabeths, and his own observation of defendant during a preliminary hearing.5
Dr. Cavanagh, another psychiatrist, examined the defendant on two occasions. He also studied the ward notes and test results. His conclusion was the same as Dr. Marland’s, “anti-social personality,” definitely “not suffering from a mental disease or defect at that time [of the offense].”
The prosecution also informed the court that a third psychiatrist, Dr. Stra-winsky, and a psychologist (unidentified), both of whose conclusions were consistent with those of Dr. Marland and Dr. Cavanagh and were of record in the case, were available to testify if needed.
All in all, it is difficult to see that the District Judge lacked any expert testimony to sustain his conclusion and action taken, or that anything of significance would be added by a further hearing on remand.
III. Authorities
As Judge Bazelon’s opinion recognizes, our en bane decision in Whalem v. United States 6 is the seminal opinion on the point here. In Whalem we defined the *1164issue: “Our query is whether in this ease there was a combination of factors which required the trial judge to inject the insanity issue for, if such factors existed, his failure to do so is an abuse of discretion and constitutes error.”7 To which we footnoted, “No rigid standard exists to control the District Court in deciding whether it should require the insanity issue to be submitted. As a matter within the sound discretion of the District Court, this question must be resolved on a case by case basis.” 8 Our en banc decision then went on to list in one paragraph the circumstances of the Whalem case.
The only single factor differentiating Whalem from Robertson, which would tend to support the conclusion of the majority here, is that in Whalem the only two psychiatric reports both negated a defense of insanity (lack of mental disease and lack of productivity), while in Robertson’s case there is the report of Dr. Gullattee, which concludes Robertson was suffering from a mental disease at the time of the crime. The other three reports on Robertson do not so conclude. But, in Robertson’s case, cutting against my colleagues’ opinion and supporting the action of the trial judge here, is the detailed record of his own observations of the defendant, his own personal understanding of the defendant’s problems, the care he took to have the defendant observed not only in but outside the court, in transit and in the cellblock, when the defendant was not aware he was under observation.
What the majority have concluded here, and to me it is astonishing, is that somehow the District Judge was not fully informed of the psychiatric evaluation and evidence, bearing on the exercise of his own discretion in interposing sua sponte the insanity issue over the objections of defendant. The only purpose of the remand is to inform the District Judge further. On the very complete and detailed record of the trial judge’s observations, thoughts, dialogue, and ultimate conclusion here, I think it inconceivable that we should remand the case so that he may appoint another lawyer in addition to the prosecutor and defense counsel, and put a psychiatrist and a psychologist, whose written reports he has already carefully studied, on the stand for examination and cross-examination. This is all that my two colleagues expect to occur as a result of the remand. And, after that, what result do they anticipate?
This brings to the fore an important distinction between the trial judge’s position in Whalem and here. In Whalem we held: “[A] trial judge must have the discretion to impose an unwanted defense on a defendant and the consequent additional burden of proof on the Government prosecutor.”9 So, in Whalem, it was the prosecutor10 on whom we said the trial judge had discretion to thrust an additional burden.
Thrusting an additional burden on the prosecutor is not what the majority are doing here. Since Whalem the D.C. Code has been amended; this is of the utmost importance, as neither Whalem nor any of our other precedents apply. No authority is cited for the result my colleagues want the District Judge to reach here. Under 24 D.C.Code § 301(j) the “burden of proof” is no longer on the prosecutor, it is on the defendant. So now my two colleagues are holding that a trial judge had discretion (and an appellate court review of that discretion to compel him to do the job over again) to compel defense counsel (or an amicus curiae if defense counsel balks) to prove that the defendant was suffering from a mental disease or defect at the time of *1165the crime.11 Defense counsel can be ordered to do this (or have it done for him by an amicus) over the objections of both defense counsel and his certified competent client.
It is highly significant that the American Law Institute in the Model Penal Code specifically declined to approve what my colleagues are doing here. Section 4.03 provides: “(1) Mental disease or defect excluding responsibility is an affirmative defense.” The ALI Comment on this section states: “While it was considered desirable to give the trial judge the power to raise the defense of irresponsibility, in a proper case, where the defendant refuses to permit his counsel to do so, such a provision was finally omitted as being too great an interference with the conduct of the defense.” 12
I respectfully submit that what my two colleagues do here is in no way sanctioned by Whalem or any of our other decisions, raises serious questions as to due process under the Fifth Amendment,13 equally difficult questions as to effective assistance of counsel under the Sixth Amendment, and does violence to the entire adversary concept of a criminal trial. I would expound at some length on these fundamental objections to what the majority does here, if it were not for the fact that the remand is so clearly and simply not justified on the facts of Robertson’s case.
IV. Some Ignored Practicalities
For me the decisive reason why no remand to the trial court is called for is the sheer purposelessness of it all. The trial judge has reached a carefully considered conclusion, on evidence which he deemed sufficient, as to the exercise of his own discretion on interposing an insanity plea in this case over the objections of the defendant and defendant’s counsel. In exercising this discretion he has certain tremendous advantages over any member of this court:
(1) As Judge Bazelon points out in his opinion, like the defendant, the trial judge is black, and the trial judge indicated that this was of importance in understanding the defendant’s racial expressions, which are spread throughout this trial in language and, of course, before the trial in the heinous homicide.
(2) The trial judge observed the defendant carefully over a period of several days.
(3) While he was observing the defendant, he had the advantage of four (or more) experts’ written conclusions in front of him.
(4) He heard two of the experts testify-
(5) He heard the defendant himself testify at the hearing after the trial.
(6) He had the give and take of arguments of counsel live before him on several occasions.
(7) He heard the witnesses live as to the conduct of the defendant on the day of the trial.
(8) The trial judge did not merely have the opportunity to observe a defendant for several days in an ordinary trial, he could and did watch the reaction of this defendant instantly to every specific item of evidence or argument as to the defendant’s mental state as it was brought out.
(9) The trial judge, at the request of the prosecutor, had required to be made half-hour written observations of the defendant’s conduct outside the trial arena over an eight-day period, when the de*1166fendant was not conscious that he was being observed.14
It was on the basis of all this that the trial judge said, “And I know everything about the condition of life that made him exactly what he is and what he is going to be. . The public at large will never understand, but there are people who do. Now, there is no basis for me to raise the insanity plea in this case.”
In contrast to the opportunities for understanding by the trial judge, and the clear record evidence that the trial judge made the most of his opportunities to gain a complete understanding of the defendant, we sit here as three white appellate judges who have never laid eyes on the defendant or heard a witness in the case. The only omissions of the trial judge that my two colleagues can point to, that they would have him correct on remand, are:
(1) The trial judge’s failure to hear the two experts who reached conclusions differing in one instance sharply and in another in some degree from the two Government experts — but the trial judge had their written reports before him throughout the trial.
(2) The trial judge’s failure to have cross-examination of the two experts who did testify — but how valuable would this have been or would it be now in light of the thorough discussion of all four experts’ views which did take place ?
(3) His failure to appoint an amicus curiae to do what defendant’s own counsel declined in the interest of the defendant to do.
*1167I respectfully submit that nothing tangible will be gained here by remand, that ordinary deference to the exercise of discretion in a trial judge requires that we leave the case as it is, and under the particular circumstances of this case, given the actions of the trial judge, there is absolutely no reason to ask for him to do anything more to assist in his own determination of whether he will exercise his own discretion to impose an insanity defense over the objections of the defendant.
V. Conclusion
There are two possible results of the remand:
A. The District Judge, after hearing further testimony as my two colleagues desire, will reach the same conclusion as before, i. e., the trial judge should not thrust the burden of an unwanted insanity defense on the defendant; or,
B. The District Judge will order a trial on the insanity defense because
1. He concludes that he should order such a trial sua sponte over the objection of the defendant, or
2. The defendant withdraws his objection and asks to interpose the insanity defense.
Under result A, nothing whatever is achieved by the remand, except wasteful expenditure of judicial energy. Under result B.I., the District Judge must perforce have confronted the issue’ of judicial interposition of an insanity defense over the objection of the defendant, and reached a result contrary to the ALI Model Penal Code. There is no authority supporting such a result. My two colleagues apparently believe such a result can be sustained, in spite of the grave consequences inherent therein, as discussed in Part III, supra. Under result B.2., the District Judge must permit the defendant to change his mind about making an insanity defense to a crime occurring 20 August 1971, which was tried in May 1972, after the jury which was then available to hear the second half of a bifurcated trial has long since been dispersed. A complete new trial would be needed. No rational system of judicial administration should tolerate this.
There being no conceivable result from the remand which would enhance the quality of justice in this case, I respectfully dissent.
. “Overtly he presents the impression of a well orientated person with respect to person, place and time. Whereas when his self concept is explored delusional material becomes apparent. Ilis identity is confused, with his sexuality not being integrated by his ego. He has a highly systematized delusional system which incorporates delusions of persecution and influence. His belief that a computer is controlling his life is delusional, with his belief that he has a special mission denoting grandiosity. His history indicates a longstanding pattern of assaultiveaggressive behavior.
“Ilis Rorschach productions are not notably bizarre. In fact his responses, indicate that his cognitive processes are intact. Nonetheless, there is notable sexual confusion present, which generates guilt, internal rage, and which is inadequately defended against by intellectual and compulsive mechanisms. The resultant sexual feelings are unacceptable to him and responded to by his attempting to implement a super-masculine self concept. Nonetheless, his self hatred is intense, and very likely to be manifested in self-destructive behavior. His basic orientation is that of moving against people, whites in particular. Ilis unacceptable feelings and projection onto whites in general. Consequently, bis sexual confusion and resultant rage are dealt with by an elaborate delusional system, where he sees himself as being victimized by whites who intend to emasculate him. The threat of emasculation is paramount with survival and triggers his underlying rage.
“Mr. Robertson lacks sufficient internal controls. His emotional life is premature in nature, and poorly socialized. Ilis strong promptings to act overwhelm his splintered ego and are translated behaviorally into aggressive behavior. Strong emotional stimulation results in his controls becoming much weaker, which is very likely to result in acting out behavior as a function of his basic identity problem.
“Summary/Impression: Mr. Robertson presents the general configuration of a highly systematized and encapsulated delusional system which in paranoid in nature. His sexual conflicts are projected onto whites in general. His sexual confusion is paramount and fused with his internal rage. He basically has a propensity to act out in a violent-aggressive manner. Minimal stimulation results in a breakdown of his reality testing and reality contact, with his ego being overwhelmed by primary processes.”
. “It is my professional opinion based upon the result of the complete mental status examination of Mr. Robertson that proceeding [sic] the time and at the time of the alleged criminal offenses committed on or about August 20, 1971, he was suffering from a mental condition and said criminal offenses were a product of that mental condition diagnosed as
“Schizophrenia, Schizo-affective type.”
. 153 U.S.App.D.C. 1, 471 F.2d 969 (1972).
. As we summarized our holding in a court-prepared syllabus:
1. The court adopts as the criterion of insanity, for all trials beginning after today, the rule stated in § 4.01(1) of the Model Penal Code of the American Raw Institute. That rule . . . states: “A I>erson is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect lie lacks substantial capacity to appreciate the wrongfulness of bis conduct or to conform his conduct to the requirements of the law.” . . .
2. The court retains the definition of mental disease or defect adopted in McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (en banc, 1962) : “A mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially affects behavior controls.” (Pp. 983-984).
5. The court has carefully considered, but rejected, the suggestion that the jury should be instructed to acquit whenever it concludes that there have been substantial impairments in mental or emotional processes and behavior controls such that the defendant cannot justly be held responsible. (Pp. 987-989).
Id. at 3-4 and 971-972.
. It was in reference to this first observation, of defendant calling attention to himself in court, that Dr. Marland made his comment, “I knew he was an exhibitionist before I ever examined him,” cited in Judge Bazelon’s opinion. Hearing Transcript at 25.
. 120 U.S.App.D.C. 331, 346 F.2d 812 (1965).
. Id. at 819 (emphasis supplied).
. Ibid., n. 10.
. Ibid.
. And in every case since following Whalem. See Judge Bazelon’s Separate Opinion, note 2.
I. “There is no more reason for the prosecutor or judge to displace defense counsel with regard to the insanity defense than there is in the case of alibi or entrapment or a coerced confession or an unlawful search.” Goldstein, The Insanity Defense, 188 (1967).
. Model Penal Code, Tent.Draft No. 4 (1955), p. 194.
. I need not draw up a catalogue of possible horrors to which defendants might be subjected, if the “defense” of insanity could be interposed over the objection of counsel and defendant. We have the examines current in other countries.
. Transcript at 3-4, 7-8 :
Q. Pursuant to my request, what type of observation was carried on in terms of Mr. Robertson?
A. Well, we had an officer make notes daily as to his actions while confined.
Q. And on what time schedule was it?
A. Around the clock, from 0001 until 2400 hours.
Q. Did they make notations as to what they observed during each half-hour?
A. Yes, they did.
Q. And would you tell the Court what, if anything, was observed of Mr. Robertson during that time?
A. They observed his actions as being more or less that of a normal person. They observed that he was talking with the other inmates.
However, he was somewhat uncooperative in talking or speaking with the correctional staff.
Q. Was there any unusual, bizarre behavior noted by the staff as to the defendant at any time?
A. No.
Q. Over how long a period was his conduct observed?
A. May 12th through May 20th.
Q. A period of eight days?
A. Right, sir.
Q. Directing your attention to May lltli, which would have been Thursday, did you have occasion to observe an assistant handling a person by the name of Thomas L. Robertson, the defendant?
A. Yes, I did.
Q. And what were your observations at that time?
A. When we first attempted to take him up to the courtroom, he was in a limp position. He wasn’t moving.
Q. Wliat time was this? Do you recall?
A. This was — let’s see. [Looking at document.]
Q. Was it in the afternoon or in the morning?
A. It was in the evening.
Q. Now, what time was it? Do you recall ?
A. About 2 :00 p.m., approximately.
Q. And what happened at that time? What did you observe?
A. Well, we tried to take him from the cell block up to the courtroom. And he wouldn’t walk. He had to be carried.
Q. Were his eyes open or closed?
A. His eyes were open at that time. Rather, I asked him cut it out. I told him he didn’t have to act for us.
At this time he winked his eye. He did like that — [indicating.]—and smiled.
MR. MILLER: May the record reflect that the witness lias made a motion of his thumb and first finger in a circle, with the other three fingers extended.
BY MR. MILLER:
Q. Would this be the type of sign like an “okay” sign?
A. Right. That is what it seemed to be to me.
Q. And when he did that, he smiled and winked?
A. Yes, he did.