concurring in the denial of rehearing en banc.
The issue before the jury at trial was whether appellant Samuels was legally sane when he threatened, in writing, to kill the President. The government presented the testimony of Dr. Clayton Pettipiece, an expert witness, that Samuels was merely manipulative and suffering from a “personality disorder.” In his opinion, Samuels was sane, as the law defines that term, when the offense was committed.
It seems to me that this evidence is sufficient to support a jury verdict against Samuels, no matter how strong the other evidence on the point may have been. The jury did not have to believe any of the *1301witnesses. It obviously chose to believe Dr. Pettipieee and disbelieve the others. I do not see how an appellate court can properly label such a decision as irrational. My disquietude at the panel’s holding that the evidence was insufficient to support the conviction, is only heightened by the panel’s frank description of its own action as “invadpng] the jury’s domain.” United States v. Samuels, 801 F.2d 1052, 1056 (8th Cir.1986). That is exactly what no court, trial or appellate, should do.
The whole basis of the criminal law is moral. It proceeds on the assumption that most people, most of the time, appreciate the difference between right and wrong and are able to control themselves. Only if this is so does it make moral sense to punish those who violate the law. For the same reason, it makes no sense to punish someone who does not appreciate the difference between right and wrong, or is not able to control himself. So the defense of insanity is a necessary part of our system of criminal justice. But it is open to abuse, and only if treated with healthy skepticism can it be kept within proper bounds. Common sense and good practical judgment of human conduct are essential in this regard, and that is what juries are for. They usually know a phony when they see one, and they are unlikely to be attracted by notions that people have no free choice, or that anyone who does wrong is somehow “disturbed” and not responsible. We should be very slow to override jury verdicts, especially on a subject where the moral judgment of the community is so closely engaged. This is no less true when the government has prevailed. It has just as much right to a fair trial as do criminal defendants.
All these considerations seem basic to me, so basic that I regard the issue as suitable for en banc consideration, especially as the life of the President may be involved. I have nevertheless determined to vote not to rehear the case en banc, and I have done so simply because the United States did not ask us for this relief. This is not, in my view, an abdication of judicial responsibility, but simply giving appropriate recognition to the fact that courts are essentially passive instruments of government. We do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us. The Solicitor General, either personally or through a small, carefully selected staff, decides whether to apply for rehearing en banc. In the present case, the decision not to do so came after we had granted, at the government’s request, an extension of time within which to file a petition. I must assume that careful consideration was given to this decision, and that the United States’ conclusion that its case should end here is supported by some facts or reasoning not readily apparent to judges who view the case, so to speak, from the outside — for example, that Samuels is not really so dangerous as he seems.
In reaching this conclusion I am fortified by a general distaste for en banc proceedings. They devour enormous amounts of judicial effort, usually (in my opinion) without corresponding benefits. Each judge of course decides for himself how to balance the factors pointing towards or against rehearing en banc in each case. We are different people, with different views of the law, and naturally our weighing of the relevant factors often leads us to different conclusions. I have tried to say enough to explain my reasons for thinking that we should not rehear this case en banc.