UNITED STATES OF AMERICA

v.

ROBERT A. GRIMES, APPELLANT

PER CURIAM.

On consideration of appellant’s suggestion for rehearing en banc, it is

Ordered by the Court en banc that appellant’s aforesaid suggestion is denied.

Statement of Chief Judge BAZELON as to why he would grant rehearing en banc.

BAZELON, Chief Judge:

Appellant sought and was denied a bifurcated trial upon the issues of commission of the acts charged and criminal responsibility, in order to be able to present his substantial insanity defense without losing his privilege against self-incrimination. Testifying at trial in support of his claim of insanity, he was forced on cross-examination to place himself at the scene of the crime at the time it took place. A division of this court refused to decide his constitutional claims on the ground that any error in the admission of his testimony was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

But the teaching of Chapman is that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless.”1 A coerced confession may not be so treated,2 and it is not immediately apparent to me why incriminating statements, not amounting to an outright confession, deserve different treatment. I know of no case in which the Supreme Court has found the admission of such statements by a defendant himself to be “harmless error.” 3

On the ultimate issue, I think that appellant has raised a substantial claim that the Constitution entitles him to a bifurcated trial on the issues of commission of, and responsibility for, criminal acts.4 His argument, as I understand it, has two prongs. The first is that he has an absolute due process right to put the government to its proof, and at least a common-law right to plead not guilty by reason of insanity. Forcing him to waive his right to put the government to its proof in order to obtain the benefit of the insanity defense places an impermissible burden on the exercise of his due process right. Particularly since in this case bifurcation would have resulted in little inconvenience to anyone,5 its denial was, he asserts, an unnecessary and therefore unconstitutional6 burden upon his right to put the government to its proof.

The second prong of appellant’s argument is based on his privilege against self-incrimination. The Fifth Amendment provides him with the right not to be compelled to testify against himself. In the present case, he did testify; and it seems clearly apparent that his only motive for testifying was to support his claim of insanity. Had he failed to testify and to present other evidence relevant to his insanity claim — but highly prejudicial on the issue of guilt- — he would have been forced to abandon his insanity defense. This sanction — loss of his strongest defense to the crime charg'ed — was, he argues, sufficient to establish that his testimony was compelled and therefore inadmissible on the issue of guilt.7

Both prongs of appellant’s argument raise serious, substantial, and far-reaching questions concerning the administration of the insanity defense in this circuit. Since it is not clear to me that the error, if any, in appellant’s trial can properly be treated as harmless, I would grant rehearing en banc.

. The psychiatrist was a private practitioner who liad been appointed by the trial court to examine appellant at the Government's expense. A pretrial commitment of appellant to Saint Elizabeths resulted in a report of competence to stand trial, which report was not objected to by the defense.

. Harried is not the only case in which this court has appeared to recognize that a highly relevant factor informing the discretion to be brought to bear upon a motion for bifurcation is the existence or non-existence of a merits defense. In Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F. 2d 281, 283 (1966), where we first articulated with some precision the discretionary power residing in the trial judge to direct bifurcation, we noted that defense counsel there premised his request on the co-existence of insanity and merits defenses, and we said that “Mclcvant considerations upon a request for bifurcation include the substantiality of appellant's insanity defense and its prejudicial effect on other defenses. * * * ■’ (Emphasis supplied). In out-most recent discussion of the matter, Contee v. United States, 133 U.S.App.D.C. -, 410 F. 2d 249, 250 (1969), we said that “a sound exercise of the trial court’s discretion will ordinarily result in bifurcation whenever a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other,” and we characterized Holmes as noting that “a unitary trial involving both the merits and the issue of criminal responsibility is replete with potential sources of prejudice.” (Emphasis supplied.) In between these two cases, we quoted with approval the language given above from Holmes, although finding the proffered insanity defense to be insubstantial, Higgins v. United States, 130 U.S.App.D.C. 331, 401 F. 2d 390, 398 (1968) ; and we considered and upheld the denial of a motion for bifurcation with separate juries in the context of a claim that the Government's evidence was so circumstantial in nature as to raise a serious question as to whether the jury would accept it ns adequate proof of the defendant’s guilt of committing the act, Parman v. United States, 130 U.S.App.D.C. 188, 399 F. 2d 559 (1968), cert. denied, 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126 (1968).

. In connection with the suggestion that denial of bifurcation hero falls short of the Fifth Amendment command of due process, appellant points to the pendency in the Supreme Court of Maxwell v. Bishop, 39.8 F. 2d 13S (8th Cir. 1908), cert. granted 393 U.S. 997 (1968), re-argument ordered 395 U.S. 918, 89 S.Ct. 1708, 23 L.Ed.2d 230 (1969), and, in particular, to the question presented in that case as to the Arkansas single-verdict procedure under which 'the jury in a capital case determines guilt and punishment simultaneously. Appellant also calls onr attention to a pending petition for certiorari, Garrison v. Patterson, No. 103 on the Miscellaneous Docket (No. 1873, 1968 Term), in which the arguments advanced in Maxwell are marshalled in support of a claim that the accused cannot be made “to stand trial on the merits and on the issue of insanity at the same time.”

. COUNSEL: We feel in this case, Your Honor, we have a substantial insanity defense and we feel further it would have a prejudicial effect upon the merits of this case.

THE COURT: First of all, what is the defense outside of the insanity defense? Do you care to tell the Court?

COUNSEL: I can, Your Honor. I can say basically aside from our insanity defense we would be attacking the Government’s case on the merits.

THE COURT: In other words you are denying the commission of the crime, I take it?

COUNSEL: We would be challenging the Government's having met their burden of proof beyond a reasonable doubt.

THE COURT: Is that all you want to say about it?

COUNSEL: About that particular item, Your Honor. I would not malee the request for bifurcation unless Your Honor were considering impanelling two juries because I feel bifurcation might be prejudicial if we ivould hare the same jury considering both, and therefore my request would be conditioned upon Your Honor viewing it in that fashion, (Emphasis supplied) [by the Court in Parman]. 399 F. 2d at 561 n. 2

. In Parman the court referred to the fact that, at the close of the Government's case, the defense renewed its motion for bifurcation “because the entire evidence was circumstantial.” Here, there was no such renewal, and appellant’s motions to acquit were confined to the claims that (1) the evidence as to the taking of the money supported attempted robbery at most, and not robbery itself and (2) the evidence was insufficient to show that appellant had assaulted Nichols, as distinct from Carter. . The Government vigorously argues that, in the event, appellant’s insanity defense proved to be insubstantial, thereby removing any basis for a present claim that appellant was entitled to bifurcation. The Government points in this regard to the testimony of the defense psychiatrist that appellant was, at most, a sociopath, and that mental illness of this kind is not characterized by lack of mental acuteness or capacity to understand what one is doing but, rather, by a callousness toward society generally. The psychiatrist also felt that the pattern of appellant’s conduct on the night in question, together with the nature of the drug he was taking, suggested that he knew what he was doing at all times. Appellant disputes this view of the weight of his evidence, and asserts that the Government has distorted the effect of that evidence by undue selectivity in its description of it. Although the showing of a lack of criminal responsibility appears to have been something less than overwhelming, we are prepared to assume for present purposes that it was of sufficient dimensions to justify the invocation of the trial court’s discretion with respect to bifurcation.

. We dealt with this subject in Lyles v. United States, 103 U.S.App.D.C. 22, 25, 254 F. 2d 725, 728 (1957), where we said:

We think that when the instruction is given the jury should simply be informed that a verdict of not guilty by reason of insanity means that the ac cused will be confined in a hospital for the mentally ill until the superintendent has certified, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or to others, in which event and at which time the court shall order his release either unconditionally or under such conditions as the court may see fit.

We considered the matter again in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F. 2d 642 (1968), where at 395 F. 2d 651 n. 50 we suggested a revision:

“If the defendant is found not guilty by reason of insanity, it then becomes the duty of the court to commit him to Saint Elizabeths Hospital for examination. After this examination a hearing will be held to determine whether defendant is dangerous to himself or others due to mental illness. If he is, defendant will remain at St. Elizabeths until it is established that he is no longer dangerous due to mental illness, at which time he will be released and will suffer no further consequences from this offense.”

As the Government reminds us, Note 50 was not added to Bolton at the time this case was tried, and the trial court was not on notice of it.

. 386 U.S. at 23, 87 S.Ct. at 827.

. Id. at 23 n. 8, 87 S.Ct. 824.

. Cf. Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (ownership of suitcase containing incriminating evidence), on remand sub nom. United States v. Garrett, 395 F. 2d 769 (5th Cir. 1968).

. His insanity defense was substantial, and he duly moved for bifurcation at trial. Compare Pope v. United States, 372 F. 2d 710, 727-730 (8th Cir. 1967) (en banc) (no trial motion for bifurcation and no substantial prejudice) ; United States v. Curry, 358 F. 2d 904, 913-916 (2d Cir. 1966) (bifurcation of guilt and penalty unnecessary because motion abandoned at trial and no actual prejudice) ; id. at 919-922 (Hays, J., dissenting).

. Since appellant presented no defense on the merits, bifurcation would have been a simple matter. At the dose of the government’s case, counsel could have summed up, and the jury could have been charged, on the issue of guilt. If the jury returned a verdict of guilty, the same jury could immediately have begun hearing evidence on the issue of sanity.

. “The question is not whether the chilling effect is ‘incidental’ rather than intentional; the question is whether that effect is unnecessary and therefore excessive.”

United States v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968).

. Cf. Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (threatened loss of Fourth Amendment claim sufficient to render testimony involuntary and inadmissible on issue of guilt). In this regard, defendants who did testify may be in a different position from those who failed to testify and thereby lost only their insanity defense. Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), held that Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) was not retroactive as to defendants who had failed to testify and at whose trial the prosecutor had commented on that failure. But in United States v. Jackson, 390 U.S. 570, 583 n. 25, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the Court clearly implied that notwithstanding Tehan, at least some of those defendants who had testified because of the threat of improper comment should they fail to do so could obtain retrials on the ground that their testimony had been improperly compelled.