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. Lomax 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 *1284for 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 he •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 *1285training.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 *1286It 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. Lo-max. 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 *1287held 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 alone15 — 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.” Jack*1288son 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. *1289H.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 — S4S (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 *1290disrupts 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 *1291verdict.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.
. Pub.L.No.88-597, 78 Stat. 944 (1964), r’evised and codified. Pub.L.No.89-183, 79 Stat. 751 (1965), codified at D.C.Code 1973, § 21-501 et seg.
. See note 11 of the majority opinion.
. The majority supports the stay by references ,to traditional criteria set forth in civil cases having nothing to do with commitment. See Virginia Petroleum Jobbers Assoc. v. Federal Power Comm’n, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958).
. Another judge took the verdict in the trial judge’s absence on the 17th but deferred the question of release to the trial judge, who returned the next day.
. We have been informed that the District Court denied Mr. Lomax’s petition for a writ of habeas corpus on the sole ground that he had not yet exhausted his available remedies because he had not presented certain of his constitutional arguments to this court. He has now done so.
The majority today rejects those arguments and in effect denies the motion to reconsider (and lift) the stay. See note 8 of the majority opinion.
. “Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976), citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975).
Because of my view of the due process issues, I see no need to discuss the merits of the equal protection argument.
. D.C.Code 1973, § 21-501 et seq. Thus, respondent was admitted to St. Elizabeths on August 25, 1975, on an involuntary basis (§§ 21-521 and -522). On August 27, respondent’s continued hospitalization for emergency observation was authorized by court order (§ 21-523). On September 3, 1975, a petition for respondent’s judicial hospitalization (civil commitment) was filed (§ 21-541). That filing triggered the applicability of § 21-528, pursuant to which a Superior Court judge ordered respondent’s continued detention, also on September 3. On September 18, the Mental Health Commission held a hearing (§ 21-542). After two continuances to give the Hospital an opportunity to place Mr. Lomax in a foster home, the Commission concluded it could delay no longer and, on November 13, 1975, recommended respondent’s commitment for an indefinite period (§ 21-544). Mr. Lomax then requested a jury trial (§§ 21-544 and -545(a)). Following the jury verdict, the trial court on December 18, 1975, dismissed the petition and ordered respondent’s release, as it was required ,to do (§ 21-545(b)).
.Although the issue is not before us, because of the Act’s narrow definition of the commit-table class, I note that there is considerable doubt about the constitutionality of statutes which permit involuntary commitment solely on the ground of mental illness and with no finding of dangerousness to self or others. This view is implicit in the Supreme Court’s construction of statutes in Jackson v. Indiana, 406 U.S. 716, 92 S.Ct. 1846, 32 L.Ed.2d 436 (1972), and Humphrey v. Cady, 406 U.S. 604, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Recently, a number of courts have expressly so held. Stamus v. Leonhardt, 414 F.Supp. 439, 450-51 (S.D.Iowa 1976); Suzuki v. Quisenberry, 411 F.Supp. 1113, 1124-25 (D.Hawaii 1976) ; Doremus v. Harrell, 407 F.Supp. 509, 513-15, 517 (D.Neb.1975) (three-judge court); Kendall v. True, 391 F. Supp. 413, 418-19 (W.D.ICy.1975) (three-judge court) ; Lynch v. Baxley, 386 F.Supp. 378, 389-92 (M.D.Ala.1974) (three-judge court) ; Bell v. Wayne County Gen. Hosp., 384 F.Supp. 1085, 1096 (E.D.Mich.1974) (three-judge court) ; Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972) (three-judge court), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed. 2d 661 on remand, 379 F.Supp. 1376 (D.C. Wis.1974), vacated and remanded on other grounds, 421 U.S. 959, 95 S.Ct. 1943, 44 L. Ed.2d 445 (1975), judgment reinstated on remand, 413 F.Supp. 1318, 19 Crim.L.Rep. 2260 (E.D.Wis. May 28, 1976) ; State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975) ; In re Levias, 83 Wash.2d 253, 517 P.2d 588 (1973) ; State e® rel. Hawks v. Lazaro, 202 S.E.2d 109, 123 (W.Va.1974) ; but see Fhagen v. Miller, 29 N.Y.2d 348, 328 N.Y.S. 2d 393, 278 N.E.2d 615, cert, denied, 409 U.S. 845, 93 S.Ct. 47, 34 L.Ed.2d 85 (1972).
Evidently the confinement of the mentally ill for their own protection (as opposed to solely on ,the ground of prevention of injury to others) was not widespread in this country until a century ago. This use of the parens patriae power then gained currency, but not without limitation. The Supreme Judicial Court of Massachusetts described this limitation on the state’s power in Matter of Josiah Oakes, 8 Law Rep. 123, 125 (Mass.1845):
[T]he right to restrain an insane person of his liberty is found in that great law of humanity, which makes it necessary to confine those whose going at large would be dangerous to themselves or others . And the necessity which creates the law, creates the limitation of the law. The questions must then arise in each particular ease, whether a patient’s own safety, or that of others, requires that he should be restrained for a certain time, and whether restraint is necessary for his restoration or will be conducive thereto. The restraint can continue as long as the necessity continues. This is the limitation, and the proper limitation.
. D.C.Code 1973, § 21-545 (b) (emphasis added).
. A medical doctor testified at trial that respondent’s neglect of his physical well-being might well prove fatal — in ten to fifteen years. (Mr. Lomax is now 52 years old.) Petitioner’s evidence also indicated that respondent stands for long periods of time and that he likes to consume large quantities of salt, both of which habits exacerbate the edema in his legs and feet; that he fails to take his medication; that he chews copious amounts of tobacco and .the tobacco juice contributes to his unsightly appearance; that he stares for long periods at nothing in particular and is sometimes mute; and that he voluntarily returned to St. Elizabeths once after another jury had found, as this one did, that he is not committable under the statute.
As for potential danger to others, ,the majority opinion emphasizes respondent’s “attack” on his wife with a can opener. This so-called “assault” occurred in March 1975,
*1286prior to the first jury trial, when, after an altercation with his wife, respondent lapsed into a catatonic state. His wife’s testimony is instructive:
Q. [By Counsel for Mr. Lomax] : I understand that, Mrs. Lomax, hut at that time did he threaten you with the can opener?
A. No; and it’s a funny thing ....
Q. But he didn’t threaten you, did he?
A. I didn’t say that he threatened me either times. No, I didn’t say that he did.
. The trial judge expressed his agreement with ,the jury verdict in this case:
. . . I feel, sitting as a 13th juror, that I would have voted along with the other 12, that I don’t think he is harmful to others and I don’t think on the evidence adduced that we could say he was harmful to himself, really.
. I note that a common thread running throughout the majority opinion is the notion that respondent is entitled to fewer substantive and procedural rights than a criminal defendant or juvenile delinquent because the government seeks not to punish but to help him. This theory is a familiar one, and it has been repudiated repeatedly, as courts have come to realize that “[1] uniting a person’s constitutional rights on the theory that it is in his best interests is questionable philosophy and bad law.” Suzuki v. Quisenberry, supra note 8, at 1130. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1 (1967); Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968); Doremus v. Farrell, supra note 8, at 513; Bartley v. Kremens, 402 F.Supp. 1039, 1045-46 (E.D.Pa.1975) (three-judge court), prob. juris, noted, 424 U.S. 964, 96 S.Ct. 1457, 47 L.Ed.2d 731 (1976).
. Conflicting medical and lay opinions on this question are not new. In Wisconsin, where juries have been relied on since 1880 to decide whether to confine a person for compulsory psychiatric treatment, periodic efforts have been made to eliminate the jury trial provision because “juries too often [refuse] to order commitment when the medical experts . . . [think] it appropriate.” Humphrey v. Cady, supra note 8, 405 U.S. at 509 n. 5, 92 S.Ct. at 1052.
. Fuentes v. Shevin, 407 U.S. 67, 80-81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Boddie v. Connecticut, 401 U.S. 371, 377-80, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) ; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ; Sniadaeh v. Family Finance Cory., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) ; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
. The only freedom which deserves the name, is that of pursuing our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. [John Stuart Mill, on Liberty, 18 (Gateway ed. 1962).]
. O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) ; Humphrey v. Cady, supra note 8; In re Gault, supra note 12; Speoht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed. 2d 326 (1967) ; Sebastian v. United States, 531 E.2d 900, 903 (8th Cir. 1976) ; In re Barnard, 147 U.S.App.D.C. 302, 455 E.2d 1370 (1971) ; Stamus v. Leonhardt, supra note 8, at 446; Suzuki v. Quisenberry, supra note 8, at 1127; Doremus v. Farrell, supra note 8, at 515-17; Meisel v. Kremens, 405 F.Supp. 1253 (E.D.Pa.1975) ; Saville v. Treadway, 404 F.Supp. 430, 432 (M.D.Tenn. 1974) (three-judge court) ; Bartley v. Kre-mens, supra note 12, at 1049, 1053; Kendall v. True, supra note 8, at 419; Lynch v. Baxley, supra note 8, at 387-88; Bell v. Wayne County Gen. Hosp., supra note 8, at 1097, 1102; Lessard v. Schmidt, supra note 8; Dixon v. Attorney General, 325 F.Supp. 966 (M.D.Pa.1971) (three-judge court).
. Gerstein involved pretrial detention of a criminal defendant. The Supreme Court held that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest and prior to trial. Respondent is not challenging his pretrial confinement, since it was in accord with the standards and procedures of the Act, which already guarantee to respondent the right secured in Gerstein. In re Barnard, supra note 16. What is at issue is this court’s post-trial stay. Gerstein, therefore, in fact supports respondent’s claim that his present confinement is illegal, since he has been held since his trial without the requisite judicial determination of probable cause.
. Lynch v. Baxley, supra note 8, at 388. See also Doremos v. Farrell, supra note 8, at 515; Bartley v. Kremens, supra note 12, at 1049; Bell v. Wayne County Gen. Hosp., supra note 8, at 1097-99, 1102; Lessard v. Schmidt, supra note 8, at 1091.
. There is, of course, as the majority notes, no lack of precedent for continuing confinement pending final resolution of appeals, even after one court has declared the challenged confinement illegal. In all of these cases, however, there has first been a judicial finding that ,the person committed a criminal act or was committable under a statutory standard. Of the cases cited by the majority, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), for example, involved an individual convicted of robbery. The appellant in United States v. Wright, 167 U.S. App.D.C. 309, 511 F.2d 1311 (1975), was convicted by a jury of destruction of govemment property and thereafter found not guilty by reason of insanity. In United States ex rel. Rice v. Vincent, 486 F.2d 215 (2d Cir.1973), the court of appeals stayed an order of release pending appeal by the government of a grant of a writ of habeas corpus; the prisoner was serving a life sentence for first-degree murder, attempted murder and attempted robbery, and ,the appellate court was concerned that he might flee.
This case is fundamentally distinguishable, since here, the individual has been found not to be committable. This distinction forms the crux of this case. The majority has failed to cite any precedent for staying the release of a person whom the factfinder has found to be not guilty or not committable, while the government takes an appeal.
. Covington v. Harris, 136 U.S.App.D.C. 35, 41, 419 F.2d 617, 623 (1969).
. The majority’s analysis of this factor, analogizing a civil commitment trial to a ha-beas corpus hearing, is unpersuasive. It is incorrect to state that .the question of whether or not the patient is currently mentally ill is always at issue in a habeas corpus action brought by a patient seeking release from involuntary confinement. That issue was of course present in the case cited by the majority, because the petitioner sought release from confinement “primarily on ,the ground that he had recovered his sanity and was no longer dangerous to himself or others.” Dixon v. Jacobs, 138 U.S.App.D.C. 319, 322, 427 F.2d 589, 592 (1970). In contrast, a patient might seek a writ on the ground that his confinement was illegal by virtue of a jury finding of nondangerousness and the subsequent noncompliance by the authorities with the terms of the Act. The patient’s current mental status would not be before the court for determination in such a case; rather, the issue would be, given the jury’s findings, is his confinement legal?
. Thus, for example, the Act provides for involuntary emergency hospitalization only where a certified emergency exists and only for a period of 24 hours until a psychiatrist on duty at the admitting hospital can examine the person alleged to be mentally ill. D.C. Code 1973, §§ 21-521 and -522. A person alleged to be mentally ill may not be detained beyond an initial 4& hour period without a court order. Id. §§ 21-521, -523. Section 21-524 then requires the court receiving a hospital’s petition for emergency observation and diagnosis of persons temporarily detained under the Act to review the written record and make a determination within 24 hours as to the appropriateness of further hospitalization for a seven-day period. The court must either order the seven-day involuntary hospitalization or order the person’s immediate release. If the court orders the seven-day hospitalization, § 21-525 requires that upon ,the patient’s request, a probable cause hearing on the issue of his further hospitalization must be held within 24 hours after receipt of the request for a hearing. If a hearing is held and probable cause is found, other provisions come into play. Section 21-542, for example, requires .the Mental Health Commission promptly to examine the patient and promptly to hold a hearing. Under § 21-544, if the Commission finds that *1290a person is not mentally ill and dangerous, it shall immediately order his release. If, on the other hand, the Commission finds that the respondent is mentally ill and dangerous, § 21-545(a) requires the court promptly to set the matter for a hearing and, if a jury trial is requested, it shall be accorded with all reasonable speed. Finally, § 21-545 (b) requires that upon a finding by the court or jury, as the case may be, that the patient is either not mentally ill or not dangerous, the court shall dismiss the petition and order his release.
. In re Ballay, 157 U.S.App.D.C. 59, 71-72, 482 F.2d 648, 660-61 (1973); Covington v. Harris, supra note 20, at 41, 419 F.2d at 623; Protecting the Rights of the Mentally Ill, S.Rep.No.925, 88th Cong., 2d Sess. (1964); Hearings on the Constitutional Rights of the Mentally. Ill Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 91st Cong., 1st and 2d Sess. (1969-70).
. See, e. g., Frazier v. Cupp, 394 U.S. 731, 734-37, 89 S.Ct. 1420, 22 L.Ed.2d 684, aff'g 388 F.2d 777 (9th Cir. 1969); Robinson v. United States, D.C.App., 361 A.2d 199, 200 (1976); Smith v. United States, D.C.App., 315 A.2d 163, cert. denied, 419 U.S. 896, 95 S.Ct. 174, 42 L.Ed.2d 139 (1974); Mares v. United States, 409 F.2d 1083, 1085 (10th Cir. 1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed. 564 (1969); Carey v. United States, 129 U.S.App.D.C. 205, 392 F.2d 810 (1967).
. This is, of course, why an appeal and retrial are not contemplated by the Act.
. See state and federal cases cited in notes 8 and 16, supra. It has been held in these decisions .that due process mandates not only the substantive commitment standard set forth in the Act, but many of its specific procedural safeguards as well, including adequate prior notice, a prompt bearing, and the assistance of counsel. See particularly Lynch v. Baxley, Bell v. Wayne County Gen. Hosp. and Lessard v. Schmidt, supra note 8.