Finally, the opinions cited by the Government for their no standing argument hold that it is a "transgressor" or "prisoner" who has no standing to complain of a transfer to answer other charges in another jurisdiction. Private Bowman was neither when transferred. Bowman was acquitted of criminal charges in the District of Columbia by reason of insanity although immediately committed to St. Elizabeth's Hospital pursuant to D.C.Code § 24-301(d)(1). When conditionally released in accordance with D.C.Code § 24-301(e), he remained subject to the court's jurisdiction and to the detailed conditions of its release order. That Bowman remains under the Superior Court's control is emphasized by Judge Block's concern that Private Bowman has departed from the jurisdiction without leave of court.
A second reason Private Bowman has standing to challenge his present custody is his alleged right to psychiatric treatment. The restrictions the Superior Court placed upon Private Bowman, an individual acquitted of crime, are only justified by treatment for the mental illness which precipitated the anti- social behavior concomitantly provided. See, United States v. Ecker, 177 U.S. App. D.C. 31, 543 F.2d 178 (D.C.Cir.1976); In the Matter of Nelson, 408 A.2d 1233 (D.C.App.1979). The seizure of Private Bowman interrupted treatment in which he, an individual acquitted of crime but nonetheless subject to significant restrictions on his personal liberty, had an important stake. Bowman testified that he requested psychiatric help; while Lt. Wilson's testimony denying that such a request was made is credible, it is undisputed that no psychiatric treatment has been provided by his captors. Bowman's psychiatrist at St. Elizabeth's Hospital testified that psychotropic medication had been prescribed for Bowman at the time he was taken into custody by military police. Lt. Wilson testified that he did not inquire as to the nature of Bowman's treatment at St. Elizabeth's nor did he determine whether Bowman was receiving medication there. It may, therefore, be inferred that Bowman's drug therapy has been interrupted by his apprehension by the military police. Serious harm to Bowman may result from this course of events.
Private Bowman's status as an involuntary committee following acquittal on criminal charges differs from that of a convicted prisoner serving a sentence or a parolee. A parolee has no absolute right to parole nor does a sentenced prisoner have an absolute right to remain in a particular prison, to participate in a work-release program or to the eradication of every possible obstacle to rehabilitation. See, Cobb v. Aytch, 643 F.2d 946 (3d Cir. 1981) (the Court distinguishes between rights of pretrial and post-trial detainees in a transfer situation, the former having greater rights to oppose transfer); X v. Brierley, 457 F. Supp. 350 (E.D.Pa.1978); Cook, Constitutional Rights of the Accused, Post-Trial Rights, (1976) § 34 at p. 92. Private Bowman is neither a sentenced prisoner nor a parolee. Having been acquitted, his rights are comparable to those of pretrial detainees recognized in Cobb v. Aytch, supra.
Private Bowman, following acquittal by reason of insanity, was by statute committed for treatment; he can and does assert a right to the treatment for mental illness which was the justification for his involuntary commitment. We do not hold that an out-patient in Private Bowman's position has an unconditional right to remain on a court-ordered release program regardless of what violations of federal or state law he may have committed in the past or may commit in the future. We do not hold that the Army cannot obtain custody of Private Bowman while he is on conditional release. We find only that the particularized harm to Private Bowman in these unusual circumstances gives him standing to challenge his present custody.
The court recognizes the gravity of even the limited intervention with a pending court martial which is contemplated by this Memorandum; however, two major concerns which generally counsel against such intervention are present to a lessened degree in the particular circumstances of this case. First, the requirement of exhaustion of remedies within the military is obviated by the military court's grant of a continuance of the court martial proceedings for a limited time, pending decision by civilian courts of the litigation arising out of Judge Block's Orders, and its willingness to defer to the Orders of an appropriate civilian court. The transcript of court martial pretrial proceedings (Exhibit 5 to Respondent's Return and Answer) reads, in relevant part, as follows:
If it is determined in a proper forum that and I would presume since Judge Block has issued his order that it will be determined one way or another if it is determined in the proper forum that the accused is not properly in military jurisdiction, then I presume an appropriate court, and the Army authorities in deference to an appropriate court, will turn him over to the civilian authorities, which will resolve the problem. If it is decided the other way, then he will remain in Army custody and the problem will be alleviated. So it seems to me that we would be pursuing this pursuing collateral litigation concerning the same subject matter which is already before Judge Block's court and is a matter of litigation in that court. Now, based on that, Counsel, however, I am willing to grant you a continuance for a reasonable period of time in order to allow that matter to be decided, and if you wish I will be happy to entertain a motion to that end. (Transcript at p. 40).
The continuance was thereafter granted. At a later hearing, military proceedings were temporarily stayed as the petition for writ of habeas corpus was actively before this court.
Thus, the military tribunal, in recognition of the unusual situation created by Judge Block's Orders and the Army's failure to comply therewith, has expressed its willingness to defer to the ruling of an appropriate civilian court while granting the defense a continuance to allow for such resolution; the military judge's ruling evidences a sensitivity to the principles of comity and a recognition of the gravity of this matter uncharacteristic of Government and Army response to these proceedings.
Respondent has characterized the military judge's order as simply indicating that the military would await Judge Block's efforts to serve the Order of Attachment and allow the matter to come to a head in that fashion. We do not believe that the military judge's resolution of this matter contemplated the necessity of a physical confrontation between United States Marshals and military police over who should have custody of Private Bowman. The continuance ordered by the military judge and his deferral to the ruling of an appropriate civilian court makes further exhaustion of remedies within the military unnecessary.
The second concern regarding district court intervention is expressed in Schlesinger v. Councilman, 420 U.S. 738, 95 S. Ct. 1300, 43 L. Ed. 2d 591 (1975), which held that when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, a federal district court must refrain from intervention by injunction or otherwise. See, Hodges v. Brown, 500 F. Supp. 25 (E.D.Pa.1980).
However, Private Bowman has shown some harm other than that attendant to resolution of the court martial proceedings; it is the very harm which gives Private Bowman standing to challenge his custody. Private Bowman presently faces serious legal difficulties in the District of Columbia because of his failure to remain in that jurisdiction and his violation of court Orders entered there. Private Bowman has also been deprived of court-ordered psychiatric care for a period of over three months. The relief here requested is not permanent injunction of a court martial, the situation presented in Schlesinger, supra, but rather a return of petitioner to the District of Columbia to clarify his jurisdictional status and perhaps to facilitate the eventual disposition of military charges against petitioner. Thus, the intervention is of a significantly lesser magnitude than the situation before the Court in Schlesinger, supra. Finally, the military court has indicated a willingness to allow the civilian courts to determine this matter and to abide by such a determination. Intervention does not violate the principles of comity under the Schlesinger doctrine. The court has the authority to act and fashion a reasonable remedy in aid of its jurisdiction.
We find it untenable that the Army should ignore or defy Orders pursuant to statute of the Superior Court of the District of Columbia and place Private Bowman in conflict with a jurisdiction actively asserting its authority over him when he is unable to rectify the situation because he is in Army custody. The Government asserts that Judge Block's Orders need not be complied with because the statute pursuant to which the Orders were issued, D.C.Code § 24-301(i), is inapplicable to the facts of this case; it contends that Private Bowman is not an "escapee" and that the statute requires that the Government request that the Orders be issued. This court will not pass upon the legality of Judge Block's Orders. See, Commonwealth of Pennsylvania v. Local Union 542, Int'l. Union of Operating Eng'rs. (Appeal of Freedman), 552 F.2d 498, 505-06 (3d Cir.), cert. denied, 434 U.S. 822, 98 S. Ct. 67, 54 L. Ed. 2d 79 (1977) (on appeal of attorney's criminal contempt for disobeying order of trial judge not to state reasons for objection on record, court refused to consider merits of order that was violated). Without suggesting that the Orders were in any way improvidently issued, it is clear that even a misguided court order, until rescinded or reversed, must be obeyed. See, Walker v. Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18 L. Ed. 2d 1210 (1967). As recently stated by the Third Circuit in United States v. Stine, 646 F.2d 839 at p. 845 (3d Cir. 1981):
It is fundamental to our legal system that "all orders and judgments of courts must be complied with promptly. If a person to whom a judge directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.' Maness v. Meyers, 419 U.S. 449, 458 (95 S. Ct. 584, 590, 42 L. Ed. 2d 574) (1975). A person who makes a private determination that an order is incorrect, or even unconstitutional, may properly be convicted of criminal contempt for violation of the order even if his or her private determination is later proven correct in the courts. Walker v. City of Birmingham, 388 U.S. 307 (87 S. Ct. 1824, 18 L. Ed. 2d 1210) (1967); Howat v. Kansas, 258 U.S. 181 (42 S. Ct. 277, 66 L. Ed. 550) (1922).
Certainly colorable authority for the issuance of Judge Block's Orders was present. While one might wonder if a judge would hold in contempt one forcibly rather than voluntarily removed from the jurisdiction, counsel for the Government should understand that possibility because it was asserted at the hearing before this court that a serviceman arrested and confined involuntarily by civilian authority is nonetheless a deserter by Army Regulations. It has been argued that the court martial ought to go forward at this time and Private Bowman returned to the District of Columbia thereafter. But every day of Private Bowman's classification as an escapee in defiance of court orders exacerbates his difficulties with the Superior Court of the District of Columbia. Every day the Superior Court Order for Bowman's return, outstanding since February 11, 1981, is ignored makes mockery of the principles of comity the Government purports to espouse.
We also have considered that the Army has failed to follow its own Regulations in this matter. Army Regulation 190-9 dated July 17, 1980 provides the policies and procedures for the apprehension and return to military control of Army absentees or deserters. AR 190-9, Section II, P 1-6a provides:
1-6. General. a. An absentee or deserter in the custody of civilian authorities or being treated in a civilian hospital will be returned to Army custody as soon as practicable. Military authorities will strive to effect such return within 48 hours after being notified of the absentee's or deserter's whereabouts. (See para 2-7 or para 3-4.) (Emphasis supplied).