United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 14, 1998
JOHN W. HINCKLEY, JR., APPELLANT
UNITED STATES OF AMERICA, APPELLEE
Appeal from the United States District Court for the District of Columbia
Barry Wm. Levine argued the cause for appellant,
with whom John T. Kotelly, Adam Proujansky and Sarah M. Mortenson
were on the briefs.
Helen M. Bollwerk, Assistant United States Attorney,
argued the cause for appellee, with whom Wilma A. Lewis, United
States Attorney, John R. Fisher, Thomas J. Tourish, Jr., Robert R. Chapman,
and Thomas E. Zeno, Assistant United States Attorneys, were on the
Before: WALD, SILBERMAN and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
John W. Hinckley, Jr., an insanity acquittee presently
committed to St. Elizabeths Hospital in Washington, D.C. ("Hospital"),
filed a motion with the United States District Court seeking a conditional
release under D.C. CODE ANN. § 24-301(k) (1981). This release would
have permitted him to spend approximately one twelve-hour period per month
in the community, with his parents but otherwise unsupervised. The Hospital
did not support Hinckley's motion, and had already denied a similar request
from him. The United States also opposed the motion. See United States
v. Hinckley, 967 F. Supp. 557, 558-59 (D.D.C. 1997). After a four-day
evidentiary hearing, the district court, Judge June L. Green, found that
Hinckley continues to present a danger to himself or others. It accordingly
denied his motion for conditional release. See id. at 558.
In the present appeal, Hinckley argues that the district
court's order should be vacated because, in a pre-hearing
evidentiary ruling, the district court held that the
deliberative process privilege shielded the discussion that took place
between members of the Hospital's Review Board as they considered whether
to support Hinckley's conditional release. Hinckley claims that this ruling
prevented him from testing the propriety of the Review Board's ultimate
decision (made before the present case began) to deny Hinckley a conditional
release. We reject this argument and affirm the district court's opinion.
Hinckley attempted to assassinate then-President Ronald
Reagan on March 30, 1981. In the process, he shot and wounded four people:
Reagan, Presidential Press Secretary James Brady, Secret Service Agent
Timothy McCarthy, and Metropolitan Police Officer Thomas Delahanty. At
his criminal trial, Hinckley presented evidence that he was suffering from
a mental disease and that his criminal actions were the result of that
disease. On June 21, 1982, the jury found Hinckley not guilty by reason
of insanity. The district court then committed Hinckley to St. Elizabeths
Hospital, where he has remained to this day. See id.During the course
of his commitment, Hinckley has sought
various forms of release from the U.S. District Court.
All of these requests were either denied or withdrawn. In addition, in
1987 and 1988, the Hospital asked the district court to release Hinckley
into the community under the supervision of Hospital staff, but subsequently
withdrew those requests. See id.
The district court held a four-day hearing on Hinckley's
present motion for conditional release. Hinckley presented five witnesses:
two psychologists, two psychiatrists, and Hinckley's father. See id.
Hinckley's four experts all testified that Hinckley suffers from a psychotic
disorder and major depression, both of which are in remission, and from
narcissistic personality disorder, which is active. They also testified
that Hinckley would present a very low risk of danger to himself or others
if the district court granted his request for conditional release. They
further agreed that, if Hinckley had a recurrence of his prior active mental
illnesses, any symptoms would develop slowly enough that they would be
detectable before an unescorted visit. See id. at 559. The United
States presented one fact witness, Commander Jeanette Wick, and one expert
psychiatrist, Dr. Raymond F. Patterson. See id. at 558.
Wick, who is Chief Pharmacist at the Hospital, testified
about her interactions with Hinckley. She stated that she first met Hinckley
when she offered to lend him a book in late February or early March 1995.
Wick testified that Hinckley then began making fairly frequent, and always
unannounced, visits to her office. Over the course of these visits, Hinckley
gave Wick audio tapes of music he had recorded, including one " 'love song'
" that contained Wick's pet name for her daughter. Wick also discovered
that Hinckley had been gathering information about her personal schedule
with her daughter. Id. at 559. This continued for about three weeks,
until Wick's staff members told her that they believed she was spending
too much time with Hinckley. Wick testified that she then informed Hinckley
that he could not come to her office without calling first. Hinckley nonetheless
continued to make unannounced visits, and Wick had to repeat her instruction.
At that point, the Hospital pharmacy began to receive a high volume of
hang up calls. When Wick answered the phone, Hinckley would identify himself
as the caller. Wick testified that she reported these problems to Dr. Maureen
Christian, Hinckley's therapist, and then began to avoid Hinckley completely.
id. at 559-60. According to Wick's testimony, however, she had to file
an incident report with the Hospital in September 1995 because Hinckley
had disobeyed instructions by delivering a package to her.
After the Hospital investigated, it imposed three restrictions
on Hinckley: (1) Hinckley was prohibited from
being in the general vicinity of the building in which
Wick worked; (2) Hinckley could have no social relationship with Wick;
and (3) whenever Hinckley planned to walk around the Hospital grounds,
he had to tell a member of his treatment team what he was going to do and
where he was going to be. See id. at 560.
Wick further testified that she now sees Hinckley on the
third Monday of each month, when she attends a meeting in the Acute Care
Hospital building. Wick stated that Hinckley is frequently standing in
the lobby when she arrives, and described one such encounter that took
place in March 1996: " '[Hinckley] glares at me. He stares at me. I guess
the kids would say, he stares me down.... I went to the elevator, and as
I went to the elevator, [Hinckley] re-situated himself so he could keep
me in his line of vision apparently.' " Id. The district court credited
Wick's testimony, and found that Hinckley had offered no evidence to rebut
it. See id.
The government's expert witness, Dr. Patterson, also testified.
Patterson agreed with Hinckley's experts that Hinckley's psychotic disorder
and major depression are in remission. However, he did not agree that Hinckley
would not be dangerous to himself or others if allowed to have unaccompanied
visits in the community with his parents. See id. Here, Patterson
cited a number of factors. Patterson explained: "The last time Mr. Hinckley
was in the Community, unattended or unsupervised, the risk of dangerousness
was extremely high. That was 16 years ago. Therefore, you have to consider
history and what factors went into his having committed that offense,
and his subsequent improvement as observed by hospital staff and as reported
by himself and by others, and the psychological testing that demonstrates
some improvements in some areas and some concerns that some very core
personality issues remain unchanged." Id. Patterson also based
his opinion on Hinckley's "relationship" with Wick, stating that it bore
some " 'striking similarities to the 'relationship' ... that he had with
Ms. [Jodie] Foster' " and raised questions about whether Hinckley was obsessively
infatuated with Wick. Id. at 560-61. The doctor stated that Hinckley's
behavior toward Wick was significant because of Hinckley's history of stalking
President Carter, President Reagan, and Jodie Foster.
Patterson described this past stalking as ultimately leading to Hinckley's
assassination attempt on Reagan. See id. at 561.
But, in the district court's judgment, Patterson's description
of Hinckley's past and continued propensity for deception and secretiveness,
especially with respect to those responsible for treating him, was the
most important factor that the doctor cited. Patterson observed that Hinckley's
treatment team did not know about his "relationship" with Wick until nearly
six months after the two had met. Patterson believed that this was consistent
with Hinckley's history, including the failure of several mental health
professionals who were treating Hinckley prior to his assassination attempt
to detect Hinckley's psychosis and the failure of the Hospital on several
occasions during Hinckley's commitment to detect behavior that represented
continuing symptoms of his mental illness. See id. As Patterson
elaborated: "There have been in the Mid-'80's, let's say in '83 to '88,
a number of situations where Mr. Hinckley has not told people that are
his treaters what he's actually thinking or doing. They relate to collecting
pictures of Jodie Foster. They relate to requesting a nude caricature of
Jodie Foster. Even up into the day before a hearing on the matter, Mr.
Hinckley stat[ed] that it had no sexual content, was not nude. They relate
to his writing Ted Bundy, his writings about Adolf Hitler, Charles Manson.
And none of his treaters knew that from Mr. Hinckley telling them until
he was confronted with it by third parties revealing that information to
Hospital staff." Id.
Based on this evidence, the district court made the following
findings of fact: (1) "Petitioner's current diagnosis is psychotic disorder
not otherwise specified, in remission; major depression, in remission;
and, narcissistic rsonality disorder"; (2) "Petitioner has a history of
deception and a record of screening information he is otherwise obligated
to provide to treating and examining clinicians"; (3) "[a]s recently as
March 1995-March 1996, Petitioner has engaged in conduct with the Chief
Pharmacist at the Hospital, Jeanette Wick, that has disturbing parallels
to the conduct leading up to the shooting of President Reagan including
the stalking of President Carter and Jodie Foster"; and (4) "[t]he psychological
testing results indicate that Petitioner has made progress but continues
to be 'very defensive and represses a lot of his feelings.' " Id.
at 561-62. The court therefore concluded that Hinckley would present a
danger to himself or others if granted a conditional release. See id.
When Hinckley's motion for conditional release was before
the district court, his arguments relating to the Hospital Review Board
focused on the assertion that all evidence of the Review Board's decisionmaking
and opinions should be inadmissible, because the Hospital had asserted
that the Review Board's deliberations were privileged. With considerably
less emphasis, Hinckley also contended that the deliberative process privilege
did not apply to the Review Board's deliberations at all. The district
court disagreed on both counts. It found that the deliberative process
privilege did protect the Review Board from having to disclose the substance
of its deliberations. The district court also rejected Hinckley's argument
that all Hospital Review Board evidence should accordingly be excluded,
explaining: [T]he Review Board's decision should not be excluded simply
because the privilege has been invoked. As discussed in United States
v. Ecker, supra, the District Court has a responsibility to consider
all relevant evidence. As the Ecker court stated, "[T]hese are truly
investigatory proceedings in which traditional notions of proof are simply
inapplicable. The district court, the hospital, the patient, and the government
share an obligation to elucidate and explore all the relevant facts." Id.
Accordingly, the Court will not exclude the Review Board
decision from the evidentiary hearing. In so ruling, the Court notes that
all of the information and records available to the Review Board are also
available to the parties here. If, in fact, the Government attempts to
introduce the actual decision into evidence, the Court will give it such
weight as it deserves. J.A. at 164-65.
Ultimately, however, the district court's opinion mentioned
the Hospital Review Board's decision to deny Hinckley a conditional
release only twice. The second mention is clearly irrelevant to the present
appeal. It concerned Hinckley's attempt to have the district court vacate
an order requiring the Hospital to give two weeks of advance notice to
the district court and the United States Attorney's Office before taking
Hinckley on supervised excursions into the community. The district court
denied this request on the ground,
inter alia, that it was moot
because "the Hospital has not extended 'B-City' privileges to the Petitioner,"
which would allow him to make supervised excursions into the community,
"so the notice requirement is not even an issue at this stage." Hinckley,
967 F. Supp. at 563.
The first mention of the Hospital Review Board's decision
appears in the district court opinion's discussion of the "standard of
review." To be understood properly, this discussion must be read in full:
As a motion for conditional release made pursuant to D.C.
Code § 24-301(k), the Court is required to make findings of fact and
conclusions of law with regard to whether the proposed release will benefit
the patient and be safe for the public. United States v. Ecker, II,
543 F.2d 178, 191 (D.C. Cir. 1976). In order for the Petitioner to be successful,
the Court must, after weighing all of the evidence, find (by a preponderance
of the evidence) that the Petitioner "will not, in the reasonable future,
endanger himself or others." Id. at 187. The Court in Ecker II
noted that it is not "sufficient for the district court merely to find
that the patient 'is no longer likely to injure himself or other persons
because of mental illness.' " Id. The Court must make an "affirmative
finding that it is at least more probable than not that [Petitioner] will
not be violently dangerous in the future." Id.
In receiving and weighing the evidence, the Court is not
bound to accept the opinion of any expert witness but is free to consider
other evidence including "the patient's hospital file, the court files
and records in the case, and
Whatever illumination is provided by counsel." Id.
In examining the evidence here, the Court notes that the
request for conditional release has not come from the Hospital, but from
the Petitioner and that the Hospital has, in fact, denied a similar request
made by the Petitioner. Such a posture makes an exacting review of the
evidence that much more important. Id. at 559.
The district court's opinion proceeded to offer a thorough
description and analysis of the expert testimony and evidence that was
before it. The district court never mentioned the Review Board's decision
in this discussion. Hinckley argues that this court should vacate the district
court's order because the lower court improperly shielded the Review Board's
deliberations under the deliberative process privilege. In our view, however,
there are no grounds for vacating the district court's opinion, even if
the court's ruling on the deliberative process privilege was mistaken-which
we do not believe to be the case. The most plausible reading of the district
court's opinion is that its review of the evidence did not rely on the
Review Board's decision denying Hinckley a conditional release, much less
on the Review Board's predecisional deliberations.
The most plausible reading of the recited passage is that
it means exactly what it says. The fact that the Hospital did not support
Hinckley's conditional release did affect the district court's standard
of review. Under the relevant District of Columbia statute, it meant that
Hinckley bore the burden of proof by a preponderance of the evidence, see
D.C. CODE ANN. § 24-301(k)(3) (1981), whereas he would not have borne
that burden if the Hospital had supported his conditional release and gone
to the district court on his behalf,
see id.§ 24-301(e).
But after the district court established the burden of
proof, there is no indication that the district court actually relied on
the fact that the Hospital Review Board had denied Hinckley a conditional
release when the court was independently evaluating the evidence in order
to decide whether it should release Hinckley. Indeed, the district court's
sole comment relating to that subject, which appears in the last two sentences
of the passage quoted above, states only that the court undertook its de
novo review extremely carefully in light of the Hospital's denial of
a conditional release, a perfectly appropriate posture. Moreover, it is
clearer still that the district court did not rely on the substance of
the Review Board's internal deliberations in coming to its decision,
precisely because the district court had no knowledge of the content of
This, however, is not our only ground for affirming the
district court's opinion. We also find that, even if the district court
did rely on the Hospital Review Board's denial of a conditional release
when the court was conducting its review of the evidence, the district
court properly held that the deliberative process privilege protects the
internal deliberations of the Review Board. Here, it is important to stress
the extraordinary nature of Hinckley's discovery request and the consequently
limited scope of our holding. Hinckley had access to every piece of evidence
that was before the Hospital Review Board and to a written statement explaining
the Review Board's ultimate decision to deny him a conditional release.
The only part of the Hospital's entire process that the district court
protected under the deliberative process privilege was the discussion that
took place between members of the Hospital Review Board as they reviewed
the evidence amongst themselves and came to their final decision.
We break no new ground with regard to the scope of the
deliberative process privilege in rejecting Hinckley's discovery request
and affirming the district court's holding that the predecisional deliberations
of the Hospital Review Board are protected under the deliberative process
privilege. A review of the steps that the Hospital followed in considering
Hinckley's conditional release, and of the access that Hinckley had to
this information, makes that clear. Hinckley's "treatment team" at the
Hospital consists of a group of mental health professionals who are directly
responsible for Hinckley's treatment and who make recommendations that
they believe will advance his therapy. Hinckley had full access to the
medical records that recount his treatment at the Hospital. In June 1996,
Hinckley's treatment team recommended that the Hospital grant him a conditional
release, which would allow him to spend one twelve-hour period per month
in the community, with his parents but otherwise unsupervised. The treatment
team also recommended that Hinckley receive "B-City" privileges, which
would permit him to take excursions into the community under the supervision
of Hospital staff. See J.A. at 87. The treatment team prepared a
written report that made this recommendation and explained the psychological
assessment behind it. Hinckley had access to this report, which appears
in full in the joint appendix. See id. at 78-94.
Under Hospital procedure, the Hospital Review Board, which
consists of every section head at the Hospital, has the ultimate responsibility
for deciding on behalf of the Hospital whether to support a conditional
release. The treatment team accordingly presented its written report to
the Hospital Review Board. It also made an oral presentation to the
Review Board and answered questions from Review Board
members. The Hospital never asserted that any privilege
covered this presentation, or the questions and answers
that followed. In fact, Hinckley called Dr. John Kelley, a Hospital psychiatrist
who was part of Hinckley's treatment team and who had made an oral presentation
to the Review Board about Hinckley's conditional release, to testify before
the district court. Kelley testified about who attended the meeting between
the Review Board and the treatment team and what various people said, whether
in making presentations, responding to questions, or asking questions.
After this meeting between the treatment team and the
Review Board, the presenters and anyone who was directly responsible for
Hinckley's therapy left the room. The Review Board deliberated on its own.
The Hospital asserted a deliberative process privilege, and the district
court recognized one, only with respect to these deliberations.
Brief of the District of Columbia as Amicus Curiae at 4 ("The District
[of Columbia] is asserting that only the confidential discussion
of the Review Board, that occurs after the treatment team finishes its
presentation and after the Review Board examines the record and questions
the team, is privileged."); Final Brief for Appellee at 36 ("[T]he only
information withheld from [Hinckley] by the Hospital was the substance
of the Review Board's deliberations as its members debated the appropriateness
of the treatment team's recommendations."). Once the Review Board
came to a conclusion, it made a note in Hinckley's medical chart recording
its decision and the reasons for its denial of a conditional release. Hinckley
had access to this note, and it is included in the joint appendix. See
J.A. at 215-16.
We find that the deliberative process privilege protects
the deliberations of the Review Board as it evaluated the evidence before
it in order to come to a decision about Hinckley's conditional release.
This court has identified two prerequisites to the assertion of the deliberative
process privilege: In deciding whether material is protected under this
privilege, we consider whether the material is "predecisional" and whether
it is "deliberative." "A document [or information in another form] is 'predecisional'
if it precedes, in temporal sequence, the 'decision' to which it relates.
Accordingly, to approve exemption of a document as predecisional, a court
must be able to pinpoint an agency decision or policy to which the document
contributed." Senate of the Commonwealth of Puerto Rico, 823 F.2d
at 585 (citation and internal quotation marks omitted);
see also Formaldehyde
Institute, 889 F.2d at 1122. In this case, it is undisputed that the
information Hinckley seeks concerns the discussions that the Hospital Review
Board had prior to its decision on Hinckley's conditional release.
These discussions, moreover, were precisely designed to help the Review
Board reach its final conclusion on Hinckley's conditional release. Accordingly,
we find that the Review Board's deliberations are predecisional.
Communications are "deliberative" if they are "part of
the agency give-and-take by which the decision itself is made. The agency
must establish what deliberative process is involved, and the role played
by the documents in issue in the course of that process." Senate of
the Commonwealth of Puerto Rico, 823 F.2d at 585-86 (citations, internal
quotation marks, and alterations omitted). Hinckley does not dispute the
fact that the information he seeks concerns the deliberations of the Hospital
Review Board as it arrived at its decision about Hinckley's conditional
release. However, he contends that the deliberations of the Hospital Review
Board are nonetheless not "deliberative" within the meaning of the deliberative
process privilege because the Review Board's decision about whether to
grant Hinckley a conditional release allegedly constituted nothing more
than "the routine application of already-formulated Hospital policy." Brief
for John W. Hinckley, Jr. at 12.
Hinckley is surely right in that the Hospital does not
claim to have adopted new general policies to govern Hinckley's case; the
Hospital claims only to have applied its standard decisionmaking procedures
in reviewing the possibility of supporting Hinckley's conditional release.
Nevertheless, we find Hinckley's argument unpersuasive.
First, this court has applied the deliberative process
privilege to protect materials that concern individualized decision-making,
rather than the development of generally applicable policy. Mapother
v. Dept. of Justice, 3 F.3d 1533 (D.C. Cir. 1993), for instance, involved
the "Waldheim Report," which Justice Department experts had prepared in
order to help the Attorney General decide whether to bar Kurt Waldheim
from entering the United States because of evidence that he may have participated
in Nazi war crimes. See id. at 1535. The Justice Department did
not develop new policies of exclusion in the course of deciding Waldheim's
case; rather, it applied the existing law governing the exclusion of Nazi
war criminals. See id. Moreover, substantial portions of the Waldheim
Report consisted simply of factual material culled from historical archives.
id. at 1538. Nonetheless, this court protected almost all of the report
under the deliberative process privilege. See id. at 1537-40.
Second, the Review Board's decision about Hinckley's conditional
release cannot be appropriately characterized as "routine." To be sure,
the Review Board was determining in Hinckley's case, as in all such cases,
the likelihood that the patient would pose a danger to himself or others
if conditionally released into the community. But any such determination
has to revolve around the facts and circumstances in each instance. It
necessarily involves the exercise of predictive judgment, based on case-specific
discussion and debate. Moreover, it is easy to see how different Review
Board members could disagree in their interpretation and analysis of the
relevant information and in their final judgment. In sum, knowing the standards
by which the Hospital judges the appropriateness of a conditional release
tells us relatively little about whether any particular patient should
actually be granted such a release. The Hospital Review Board's decision
denying Hinckley a conditional release was not a "routine" one.
Moreover, the foundational policy concern underlying the
deliberative process privilege supports the privilege's application in
this case. "[T]he privilege rests most fundamentally on the belief that
were agencies forced to operate in a fishbowl, ... the frank exchange of
ideas and opinions would cease and the quality of administrative decisions
would consequently suffer." First Eastern Corp. v. Mainwaring, 21
F.3d 465, 468 (D.C. Cir. 1994) (citation and internal quotation marks omitted);
also Mapother, 3 F.3d at 1537 ("[T]he deliberative process privilege
... protects the decisionmaking processes of government agencies and encourages
the frank discussion of legal and policy issues by ensuring that agencies
are not forced to operate in a fishbowl.") (citation, internal quotation
marks, and alterations omitted).
The Hospital Review Board's deliberations as it considered
whether to grant Hinckley a conditional release constitute precisely the
sort of situation in which governmental decisionmakers need to know that
their internal discussions will not be eventually exposed to public review.
As this court has long recognized, insanity acquittees are an "exceptionally
dangerous class." United States v. Ecker, 543 F.2d 178, 186 (D.C.
Cir. 1976). Deliberations about whether to allow them back into the community
may accordingly attract substantial public interest and perhaps become
the center of public controversy. Moreover, Review Board members might
potentially be concerned for their personal safety in some instances, if
the content of their internal deliberations were released to the insanity
acquittee. The possibility of this sort of outside scrutiny of the Review
Board's deliberations would almost certainly hamper the candor of future
discussions, and perhaps even change the decisions that the Review Board
reaches. In addition, Review Board members might be unwilling to criticize
the proposals or assessments of other Hospital professionals not included
in the deliberations, such as the members of the treatment team, if they
knew that the Review Board's discussions could be made public.
As Hinckley notes, "[t]he deliberative process privilege
is a qualified privilege and can be overcome by a sufficient showing of
need." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). "For
example, where there is reason to believe the documents sought may shed
light on government misconduct, the privilege is routinely denied, on the
grounds that shielding internal government deliberations in this context
does not serve the public's interest in honest, effective government."
at 738 (citation and internal quotation marks omitted); see also In
re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630,
634 (D.C. Cir. 1992).
Hinckley asserts that his attempt to access the deliberations
of the Hospital Review Board falls within this exception to the deliberative
process privilege, on the ground that he suspects that the Hospital Review
Board had improper motivations when it denied him a conditional release.
Hinckley contends that whatever showing he needs to make in this regard
is satisfied by the mere fact that his treatment team unanimously recommended
his conditional release.
We disagree on several grounds. First, this sort of argument
appears to have no logical stopping point. The deliberative process privilege
would soon be meaningless, if all someone seeking information otherwise
protected under the privilege had to establish is that there was disagreement
within the governmental entity at some point in the decision-making process.
One of the key insights behind this privilege is that governmental decisionmakers
will frequently disagree and debate many options before they reach any
final conclusion, and that such predecisional and deliberative discussions
and disputes should be protected from public review. Second, the simple
fact that Hinckley's treatment team and the Hospital's Review Board came
to different conclusions does not suggest, in our view, any improper motivations
on the part of the Review Board. As indicated above, Hinckley's treatment
team and the Review Board have different functions and concerns. Whereas
members of the treatment team are directly responsible for Hinckley's therapy
and are charged with advocating the treatment program that they believe
will best advance Hinckley's therapy, the Hospital Review Board is drawn
from all sections of the Hospital and considers a wider array of issues,
including most notably the danger that a conditional release would pose
to the community.
Hinckley also contends that the district court improperly
invoked the deliberative process privilege because it failed to balance
the government's interest in nondisclosure against Hinckley's need to obtain
the Review Board's deliberations as evidence to support his motion for
conditional release. As this court recently noted, adjudicating such an
assertion of need requires a "balancing of the competing interests, taking
into account factors such as the relevance of the evidence, the availability
of other evidence, the seriousness of the litigation, the role of the government,
and the possibility of future timidity by government employees." In
re Sealed Case, 121 F.3d at 737-38 (citation and internal quotation
In this case, the balance weighs strongly against granting
Hinckley access to the Review Board's internal deliberations, notwithstanding
the seriousness of the present litigation. First and most importantly,
we see no reason to believe that these internal deliberations are particularly
relevant to Hinckley's motion before the district court for conditional
release. Hinckley has made no colorable showing that the Review Board acted
improperly. Moreover, the district court conducted a de novo review
of the evidence, rather than simply reviewing the Review Board's denial
of Hinckley's request for conditional release. Second, the Hospital has
already given Hinckley access to a tremendous amount of information, including
all of the evidence that was before the Review Board as well as the Review
Board's final decision and explanation for it. Third, Hinckley has not
even suggested that the United States has acted to thwart his motion before
the district court in an improper or untoward manner. Fourth, granting
Hinckley access to the Review Board's internal deliberations would seriously
endanger the future candor of such discussions.
The most plausible interpretation of the district court's
opinion in this case is that its de novo review of the evidence
did not rely on the Hospital Review Board's decision to refuse Hinckley
a conditional release. Even if the district court did rely to some extent
on the Review Board's decision, however, we find that the court properly
protected the deliberations of the Review Board under the deliberative
The decision of the district court is accordingly
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment:
I agree with the majority that "there is no indication
that the district court actually relied on the fact that the Hospital Review
Board had denied Hinckley a conditional release" and that "it is clearer
still that the district court did not rely on the substance of the Review
Board's internal deliberations in coming to its decision, precisely
because the district court had no knowledge of the content of those deliberations."
Maj. Op. at 10 (emphasis original). In United States v. Ecker, 543
F.2d 178 (D.C. Cir. 1976), this Court emphasized the district court's expanded
role in resolving a conditional release petition pursuant to D.C. Code
§ 24-301: Thus, in conditional release proceedings (as well as unconditional
release proceedings) the role of the district court (i.e., the standard
of review) ... is not simply to review the hospital's decision for unreasonableness,
but rather itself to decide the ultimate question: whether the present
status of the patient is such that continued confinement [without conditional
release] is justifiable.
... In order to approve a conditional release, we hold
that the district court must independently weigh the evidence and make
a de novo determination that the patient will not in the reasonable
future endanger himself or others. Id. at 186-87 (internal footnote
and quotations omitted) (emphasis and brackets original). This is so because,
as the Ecker court recognized, "when a district court is asked to
review a conditional release certification the basic policy underlying
section 301(e) comes into play, and the court must decide whether the hospital's
proposal 'provide[s] treatment and cure for the individual in [sic] manner
which affords reasonable assurance for the public safety.' " Id.
at 182-83 (internal footnote omitted) (brackets original).
The record reveals that the district court followed Ecker
to the letter, "independently weigh[ing] and evaluat[ing] the evidence."
at 184. The district court relied heavily upon the opinion of the government's
psychiatrist, Dr. Raymond F. Patterson, who described Hinckley's "past
and continued propensity for deception and secretiveness, especially to
those responsible for treating him." United States v. Hinckley,
967 F. Supp. 557, 560 (D.D.C. 1997). And in evaluating the opinions of
Hinckley's experts, the district court looked to Hinckley's own words:
Moreover, in considering the opinions of his experts, the Court is reminded
of a journal entry made by Mr. Hinckley in 1987 in which he wrote:
"I dare say that not one psychiatrist who has
analyzed me knows any more about me than the average person on the street
who has read about me in the newspapers. Psychiatry is a guessing game
and I do my best to keep the fools guessing about me. They will never know
the true John Hinckley. Only I fully understand myself."
Tr. 156-157; (stipulated to by counsel for Petitioner).
What is particularly disturbing is that this statement
was written at a time when the Petitioner had already undergone five years
of treatment and had convinced his treatment clinicians that he had recovered
sufficiently for conditional release. Statements such as these cause the
Court to proceed carefully in weighing current assessments of the Petitioner
by his experts. Id. at 562.
As the majority observes, the district court "never mentioned
the Review Board's decision in this discussion." Maj. Op. at 9. The record
plainly manifests that the district court did not rely on the Hospital
Review Board's recommendation (indeed, the court did not deem it relevant
except insofar as it caused the court to conduct an even more "exacting"
review, 967 F. Supp. at 559). Accordingly, there is no need to reach the
extraneous deliberative process privilege claim and I respectfully decline
to join the majority's discussion of it.