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10/24/57 Russell E. Carter, v. United States of America

October 24, 1957




Before PRETTYMAN, BAZELON and BURGER, Circuit Judges.


October 24, 1957, Opinion Filed

Petition for Rehearing In Banc Denied November 21, 1957.


PRETTYMAN, Circuit Judge.

Carter was indicted, tried, convicted, and sentenced to death for first-degree murder. We have heretofore, shortly after the oral argument in this court, ordered that the judgment of conviction be reversed and that Carter have a new trial.

At the time of the offense Carter was eighteen years of age. His alleged victim was a girl fifteen years old. The trial consumed thirteen days over a period of four weeks. The transcript, which we have examined with care, is some fifteen hundred pages long.

The prosecution rested upon confessions made by Carter, some physical evidence (bloody clothing) said to belong to Carter, and a few circumstances. The defense was insanity; the defense also opposed admission of the confessions.

Four doctors testified at the trial as experts. Fifteen witnesses testified concerning Carter's life history, his personality, habits and attitudes. These witnesses included Carter's father, three foster parents, a case worker for the Board of Public Welfare, six employees of the Industrial Home School, a social worker at the Children's Center, a counselor at the Receiving Home, and two shorttime employers of Carter.

Born illegitimate, Carter spent the first seven or eight years of his life with his father's sister, a blind woman. Shortly before his eighth birthday he was hit by a car. He was taken to Freedman's Hospital, where his symptoms were described as a comatose condition, convulsive seizures, and grinding of the teeth. Hemorrhage was noted from the right ear, and there were lacerations on the forehead. His father testified that after the accident "Sometimes he would answer people when people wouldn't be calling him, and then get out and you could call him and he wouldn't answer at all." And further, in response to the question, "Was he still jolly and playful?," his father answered, "Not much after that. He wouldn't do much talking after that."

A year after the accident Carter's aunt released him to the Child Welfare Division of the Department of Public Welfare. He was forced to leave his first foster home. After six months at a second foster home he was placed with a Mr. and a Mrs. Reed, with whom he stayed almost four years. The Reeds found him extremely difficult. He relieved himself in his clothing and bedclothing "just as regularly as if it were the right thing." He often struck smaller children without provocation; he was extremely cruel to animals - put a cat in a sewer and tried to strangle a dog; and he stole food. It was not uncommon common for him to stay out all night, and on occasion he left home for as much as eight or ten days. At these times he slept in pool halls, garages, and the neighboring woods.

Carter left the Reeds in August, 1949, and went to the Industrial Home School at Blue Plains. While there he forced a child into an act of sodomy, threw a knife at another child, and was in the habit of fighting with smaller children who would not give him their possessions. His behavior there was characterized as aggressive and hostile. Upon reaching the age of sixteen (in December, 1952) Carter was placed in another foster home. He stayed there only a short time and then went to live with a Mrs. Gordon, who requested the authorities to remove him from her home after he masturbated in her presence.

Thereafter Carter moved to still another foster home for about one month, after which he was again placed in yet another foster home where he remained for three days and then ran away. He was found seventeen days later sleeping in a garage and was removed to the Receiving Home for Children. He subsequently left the Receiving Home to live with his father, remaining there about one month. His father testified that Carter absconded with a hundred dollars. He was apprehended on a complaint charging "disorderly conduct or peeping tom" and was sent back to the Receiving Home. By this time Carter had grown to be a large physical specimen. While at the Receiving Home be picked up another boy bodily and threw him on the floor, causing injuries serious enough to require hospitalization. His explanation was that the boy had been looking at him. His nature had become so vicious that he required constant supervision.

On June 21, 1954, when he was about seventeen and a half years old, Carter was sent to Gallinger Hospital by the Department of Public Welfare for a determination as to whether he was at that time of unsound mind. While there he was given an I.Q. test, on which he scored 74 - "borderline intelligence". The report, if there was one, of the psychiatric examination was not put in the record, and there is to testimony by a doctor as to the results of such an examination at that time. The social worker testified, however, that as a result of the report from Gallinger the Department filed a "Beyond control petition" with the Juvenile Court. The petition stated that Carter had "a considerable amount of aggressive hostility", that he "acted impulsively", and that "we felt he would perhaps get into some difficulty because of his mental abilities - his inability to make use of community resources, his inability to plan for himself". The social worker testified: "And there were no other relatives who showed any interest in him whatsoever and we did not believe that he should be continued in the community. We felt that he should be placed in an institution." The petition to the Juvenile Court stated further that the difficulties Carter had been in and his behavior indicated that perhaps there was a mental illness. The petition was denied on the basic that Carter "should be able to go out into the community and learn to take care of himself even though [the Department] did not feel that he was able to do this."

Carter stayed at the Receiving Home until his eighteenth birthday, December 30, 1954, when the commitment to the Department of Public Welfare automatically expired. After his eighteenth birthday a social worker, knowing that Carter had no place to live, helped him find a place in the Municipal Lodging House, where he lived for about two and a half weeks. The social worker discussed with Carter the possibility of an army career, and Carter attempted to enlist. He was unable to pass the mental examination, however, and was rejected.

He was seen in April, 1955, by the social worker who had had much to do with him and by one of his former foster parents. He was disheveled and appeared confused. "He looked terrible. Glassy-eyed. And he looked very upset. . . . He was glassy-eyed and staring, starry-eyed - I don't know - it was an expression of a person that when I left him I said to myself, 'I wonder if he had been using dope.' . . . And I said to myself, ...

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