FAHY, Senior Circuit Judge:
Appellant was tried for first degree murder in violation of D.C.Code § 22-2401. He was convicted of murder in the second degree and sentenced to imprisonment for a term of fifteen years to not more than life. The court recommended that he receive psychiatric treatment.
I
The homicide occurred when appellant was a patient at St. Elizabeths Hospital, to which he had been committed on March 25,1965 as a result of a verdict of not.guilty by reason of insanity at his trial for a rape charged to have occurred in August, 1964. When admitted to St. Elizabeths in November, 1964, for observation prior to that trial, he had been diagnosed by the staff as a “patient * * * suffering from a schizophrenic reaction, chronic undifferentiated type,” but he was deemed competent to stand trial. Upon readmission to the hospital after the trial, he was confined to John Howard Pavilion, the maximum security ward. Eight months later his diagnosis was changed to “emotionally unstable personality.” Under the controlled conditions of John Howard Pavilion the hospital staff believed he had improved, and in February, 1967, he was transferred to Cruvant Service at the hospital, where he progressively was given greater freedom, including ground privileges.
A brutal killing of a female employee of the hospital occurred in a wooded area near the hospital the morning of May 30, 1967. Appellant was convicted of this crime and now appeals. The principal evidence against him was a confession. Though there were several confessions, only the final one was offered and admitted in evidence. This occurred after a hearing on defense counsel’s pre-trial motion to suppress the confessions. We think the admission of the confession was error, and for that reason we reverse.
Officer Preston was the first witness at the suppression hearing. He testified that, accompanied by two other officers, he interviewed appellant about the homicide twice on June 5, 1967, because appellant had been committed to the hospital as a patient as the result of a rape [556]*556case closely paralleling the case under investigation. Officer Preston testified that he advised appellant at the first interview of its purpose. Appellant initially denied any implication in the crime. The officer then asked him what he had done the morning of the crime, and continued his testimony as follows:
The defendant told me that he had been inside the Cruvant building until approximately 2:30 p.m. on May 30, and that he had not been in the area where the body was found at any time during that morning.
At this time I told the defendant that I had two witnesses who had seen him on a path that the decedent in the case had taken.
I did not have two such witnesses at that time. However, the defendant Robinson said to me, “You mean Lightfoot and Long saw me?”
And I assured him that they had. So he then admitted to me that Yes, he had gone out the path through the— around the fence.at Saint Elizabeths and gone through this path sometime between 9:30 and ten a.m. on that morning.
On cross examination the officer explained, “I bluffed him.”
During this interview Officer Preston observed what appeared to be fingernail scratches on appellant’s arms. The officer testified that he still had no intention of arresting appellant but that he was interested in the scratches; he felt perhaps there had been a series of struggles in the woods and the victim had in some way marked her assailant. To a question whether he advised appellant during this interview of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he responded, “[h]e was not in custody; no, sir.” After the interview Officer Preston discovered from speaking with one of the men appellant admitted had seen him that it was indeed possible appellant had been on the path “during what we felt was the critical time.”
Later that day the three officers interviewed appellant again for about two hours. At the start of this interview Officer Preston testified that he told appellant:
You don’t have to talk to me, you can get up and walk out at any time, and I don’t want to do anything to upset you, but I am very interested in your activities that morning because of what you had done at Fort Dupont a couple of years before.
The officer then testified that appellant agreed to talk and told them about his morning bus ride to his sister’s house, where nobody was home, and his later return to the hospital. Appellant also offered an explanation for his scratches, except for the deep scratch at an angle on the upper biceps of his left arm. The major part of the interview was consumed by appellant’s discussion of his hostility towards women in general and the details of the earlier rape crime charged to him in 1964, known as the Fort Dupont case.
Attention continued to focus on appellant. After the second interview, Officer Preston examined appellant’s shoes and clothes in his locker. The next day, June 6, appellant was returned to the maximum security ward. Finally, according to a memorandum of Dr. Owens, the Clinical Director of this ward, which was introduced in evidence, the police on June 7 took a picture of the scratches on appellant’s arm and talked with Dr. Owens at great length about appellant being a suspect. After this meeting of Dr. Owens with the police, again according to the memorandum of Dr. Owens, appellant was brought to Dr. Owens’ office for the purpose of “getting the entire matter settled or in any way we could clear him as a suspect.” He asked appellant whether he would like a “sodium-amptal (sic) interview examination [truth test] * * * to [help] clarify his position in the matter.” According to the memorandum, appellant became tense and anxious at this suggestion and said he would like to speak with his fam[557]*557ily and an attorney before taking such a test.
Dr. Elliot R. Blum, the clinical psychologist at the maximum security ward, was also a witness at the suppression hearing. He had known appellant since May, 1966 because of appellant’s participation in the doctor’s group psychotherapy sessions conducted twice a week. He recalled that around the end of May, 1967, appellant was experiencing extreme agitation from a very distressing relationship in his life.1 On May 30, 1967, appellant did not keep an appointment, and the doctor felt that this was rather significant since it was the first time appellant had missed the group meetings. The doctor then learned of the crime and appellant’s transfer back to John Howard Pavilion as a suspect. When he visited him there appellant said, “they have me in here on (sic) a suspect,” but he seemed to treat the matter lightly. Soon thereafter, however, on Saturday, June 10, 1967, Dr. Blum received a telephone call at home and was told that appellant wanted to talk with him about something very important. The doctor met appellant at the hospital “as a therapist and nothing more.” Appellant thereupon told the doctor what had happened on the day of the crime. Dr. Blum described appellant as being in a highly emotional state: “he was bawling like a baby;” “[i]t was more of a compelling kind of thing, there, then, that he had to tell me.” Crying profusely, appellant asked what he should do. Dr. Blum replied that “the truth, in the final analysis, is the best thing,” and he advised appellant to “make a clean breast of it” to Dr. Owens and to Dr. Schwartz, the ward administrator. He thought that appellant felt he had no other recourse than to tell the doctor about the crime.
When asked whether appellant was aware of the consequences of his confession, Dr. Blum answered that appellant was aware that he confessed to murder but he did not realize the judicial process would be leveled against him. It was Dr. Blum’s opinion that appellant believed he would remain in the hospital and be treated as he always had been.
Dr. Blum later felt uneasy about the situation and had misgivings about what he had done. Throughout his years of association with appellant, the doctor said he had tried to instill in him a confidence in their relationship and had encouraged him to confide about his personal problems.
* * * I think he respected my advice and * * * what I would say to him. I think he would go along with it [the doctor’s suggestion] and I was relatively naive in terms of what the effect of this kind of situation was.
The doctor added that if he had told appellant to get a lawyer before speaking with Dr. Owens or the police, appellant would have obtained a lawyer. But in response to a question by a superior as to why he did not give this advice, he explained that at the time:
[T]he thought never occurred to me. I just thought the idea of telling * * * the doctors in charge of his case, because he is a committed patient in the hospital.
Dr. Owens was reached with appellant’s consent and a conference was scheduled for the following Monday, June 12, 1967. Dr. Owens testified at the suppression hearing that he had a general idea why the meeting was arranged. Indeed, he called an Assistant United States Attorney for advice and was told that he should advise appellant of his right to an attorney and his right to remain silent. Of the meeting on Monday, attended by Dr. Owens, Dr. Blum, Dr. Schwartz, and appellant, Dr. Owens testified at the suppression hearing that he immediately told appellant of his rights: that he had [558]*558a right to an attorney; that if he could not obtain one he “would call one for him” or would ask the District Court to appoint an attorney for him; and that he did not have to say anything. Dr. Owens could not recall advising appellant, however, that anything he said might be used against him or that he could stop talking at any time during the course of the interview. Appellant said that he had something on his mind which he wanted to talk about and would feel better if he discussed it with the doctors.
Dr. Blum gave a significantly different account of what transpired at the interview with Dr. Owens. His testimony was that upon arriving Dr. Owens immediately said, “Well, what is it?” or something like that, and that appellant replied, “I killed that woman.” Dr. Blum was certain that nothing was said concerning a lawyer until after the confession had been elicited from appellant.
After appellant had given the details of the homicide, Dr. Owens testified that he asked him, “did he want to — would he like to discuss anything with the police because he knew they were cheeking on his activities and what he had been doing,” and that appellant replied he wanted to talk to them. Dr. Owens said that he told appellant he did not have to talk to the police and he had the right to an attorney, but that appellant responded “he wanted to talk to the police and get it over with.”
Dr. Owens then called the police. Detectives Wilson and Mann came to the hospital within a matter of hours the same day. They read to appellant P.D. Form 47, as follows:
You are under arrest. Before we ask you any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
When they finished this procedure, Dr. Owens asked appellant if he understood what had been read to him and if he wished to have an attorney. Appellant said he understood and did not wish an attorney. The doctors then left, and appellant again told his story to the police.
At the conclusion of the hearing on the motion to suppress, the court made its findings as follows: defendant was competent at the time he gave all three confessions; he was aware of his rights, being offered counsel and being sufficiently warned under Miranda at the time of the third confession; all three confessions were voluntary and admissible, the last one constituting the third recitation of the facts; and the defendant was anxious to get the statements off his mind.
After these rulings the prosecutor stated that while he considered all three confessions to be legally sound and admissible, he would as a matter of strategy present to the jury only the final confession given the police, because it had the most solid footing — at this point defendant had been completely advised of his rights. He added that he considered the other confessions relevant to the issue of voluntariness of the final confession and that that was why all three were presented to the court at the hearing.
The course thus indicated was the one pursued at trial; only the confession given to the police was related to the jury.
II
We postpone consideration of the manner in which the confession was presented to the jury in order to consider first whether any of the confessions should have been admitted. It is the duty of this court “to make an examination of [559]*559the record in order to ascertain whether [appellant’s] statements were voluntary,” considering the “totality of the circumstances.” Greenwald v. Wisconsin, 390 U.S. 519, 520-521, 88 S.Ct. 1152, 1153-1154, 20 L.Ed.2d 77 (1968).
A. Contrary to the assumption of counsel, four implications, rather than three, are involved. The one omitted from consideration was appellant’s concession to Officer Preston at the first interview on June 5, 1967.2 After maintaining that he had remained inside until 2:30 p. m. the day of the crime, appellant conceded his presence at or near the scene of the crime at or near the time of its commission when told by Officer Preston that two witnesses had seen him near the scene. The admissibility of this self-implicating statement is to be judged by the standards of admissibility applicable to a confession:
“The rule excludes not only direct confessions, but any other declaration tending to implicate the prisoner in the crime charged, even though, in terms, it is an accusation of another, or a refusal to confess.”
Bram v. United States, 168 U.S. 532, 541, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897). See also Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966), where the Court stated: the “privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.” Even if can be said that at the beginning of the first interview conducted by Officer Preston on June 5, 1967, appellant, notwithstanding the suspicious scratches on his arms, was only a suspect on the basis of the similarity of the crime in question with the earlier rape case, when Officer Preston undertook to bluff him into placing himself on the morning of the crime near its scene, telling him he had been seen, the interrogation had sufficiently focused on appellant to cause the absence of the Miranda warning to bear upon any confession which followed. Under the reasoning of the Bram case the accusation was such as to require an answer, thus rendering the incriminating answer involuntary. See 168 U.S. at 562-563, 18 S.Ct. 183.3 Moreover, appellant was being interro[560]*560gated by officers as a suspect in a manner admittedly designed to obtain a confession. The situation of appellant during the interrogation cannot in any rational manner be distinguished from custodial interrogation. We conclude for this additional reason that appellant’s statement to Officer Preston cannot validly be used in evidence as a voluntary confession.4
B. When appellant went to Dr. Blum he was aware of the extent to which the investigation had focused upon him. He had been interviewed twice by the police. They not only had confronted him with the similarity of the crime in question to the earlier one which had led to his confinement in St. Elizabeths, but they had tricked him into implicating himself in the homicide being investigated. Furthermore, scratch marks on his arms, of concern to the police, had been photographed, he had been removed to the maximum security ward because of suspicion of his guilt, and Dr. Owens had questioned him at length about the homicide and had suggested a sodiumamytal truth test, whereupon appellant had indicated his desire for counsel.
Dr. Blum had frequent contact with appellant and had developed with him a relationship of confidence with respect to his personal problems. To quote the doctor, they met as patient and “as a therapist and nothing more.” When appellant confessed to Dr. Blum there is no suggestion that he intended to make a confession which would incriminate him with the authorities or that he was aware his course of action would be the cause of his conviction in court.5 Dr. Blum is quite clear about this, that “[i]t was more of a compelling kind of thing, * * * that he had to tell me.” When appellant then asked for the doctor’s advice, he was told that a confession to the hospital administrators would be the best thing.
Here, again, if his statements to the doctor were to be used in evidence against him, appellant was entitled, as a minimum, to advice as to his rights, followed by convincing proof of their waiver, such as Miranda establishes at least as one of the criteria by which to determine the voluntariness of a confession sought to be used in evidence. Appellant had previously involuntarily implicated himself to Officer Preston, had been twice interviewed by him and two other officers, had been returned to the maximum security ward as a prime suspect, and had been questioned at length by Dr. Owens, who suggested that he take a “sodium-amptal {sic) interview examination,” to which appellant responded he would like to speak to his family and an attorney. Furthermore, appellant was in custody, without counsel, unadvised as to his right to counsel, and unadvised that what he said could be used against him. While the confession in Miranda was elicited during interrogation in police custody, appellant’s position was even more conducive to compulsion than Miranda’s.6 [561]*561As the testimony indicates, though he was competent to understand what he was doing, he was a mental patient who was clearly no less subject to Dr. Blum’s influence than Miranda was to the influence of the police. And while in a criminal case such as this Section 14-307(b) (1), note 5 supra, provides that a disclosure which otherwise would be confidential under the doctor-patient privilege may be permitted in the interests of justice, the rule excluding an involuntary confession is unaffected by this provision of the Code.
We have no criticism of Dr. Blum.7 We do not say that a duty rested upon him to do other than he did. The issue is quite different. It is whether the confession to him was a voluntary one admissible at appellant’s trial. In the totality of the circumstances in which the confession occurred, to avoid involuntariness which rendered it inadmissible, appellant no less than Miranda was in need of such warning and advice as Miranda requires, with competent waiver of the rights of which he thus would be advised. There is also the special factor peculiar to this case — the compulsion upon appellant to tell Dr. Blum what he had done, because of the relationship between them and the investigative pressures then exerting their influence upon him. The absence of blame on the part of the doctor, therefore, does not render the confession to him any less inadmissible.8
C. When appellant later repeated the confession to Dr. Owens, again no adequate protective warnings or advice as to rights, or waiver of rights, appear. Though Dr. Owens testified that before anything was said at the Monday morning meeting he advised appellant of his right to a lawyer, it is clear nothing was said concerning the use against him in court of anything he might say. In Miranda the particular significance of this phase of the warnings was explained as follows:
This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system — that he is not in the presence of persons acting solely in his interest.
384 U.S. at 469, 86 S.Ct. at 1625, 16 L.Ed.2d 694. Moreover, we are persuaded by Dr. Blum’s convincing testimony that Dr. Owens is mistaken in his recollection that the advice as to his right to an attorney was given before appellant first confessed in brief form — “I killed that woman” — to Dr. Owens.
Like that to Dr. Blum appellant’s confession to Dr. Owens was inadmissible at his trial. As we have seen, Dr. Blum had advised him that a confession to the [562]*562hospital authorities would be the best thing; and Dr. Blum testified that due to the relationship between the two, appellant would do what the doctor told him to do. The confession to Dr. Owens was but a continuation of what had become compelled self-incrimination by all that had occurred, including the confession to Dr. Blum. The compulsion had not been removed. The confessions to Dr. Blum and to Dr. Owens must be considered together. So considered, and viewed against the background of the earlier events, including the confession to Officer Preston, even though the confessions to the doctors were of a therapeutic value the Fifth Amendment privilege against self-incrimination and appellant’s Sixth Amendment right to counsel preclude their use as evidence at his trial for the homicide.
D. The warnings and advice given by the police to appellant a few hours later were totally deficient to permit a meaningful exercise of his rights, apart from the absence of convincing proof of their waiver, especially by a mentally disturbed person in appellant’s situation.9 It would be wholly unrealistic to consider the confession to the police as being independent of all that had gone before. It was simply the culmination of the process of disclosure of appellant’s complicity, which began with the admissions to Officer Preston and which in all substance was completed by the confession to Dr. Owens. The involuntary nature of the confession to the police was not due to any overt coercive tactics on their part, but rather to the sequence of events which led to this confession, beginning with Officer Preston’s initiation of the interrogating process of drawing implicating statements from appellant.
E. We conclude that all of the confessions were inadmissible. In so concluding we have referred to the development of the relevant law as evidenced by the Miranda decision, and we have also considered the subsequently enacted provisions of 18 U.S.C. § 3501(b),10 approved June 19, 1968, and in effect at the time of appellant’s trial, which began on January 22, 1969. The provisions of the new statute were neither considered by the trial judge nor have they been relied upon by either party to this appeal. But we do not think this gives us reason to disregard them. Section 3501 (b) provides that “[t]he trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession,” including the various circumstances enumerated in the statute. It also provides, however, that the enumerated circumstances “need not be conclusive on the issue of voluntariness.” All factors we have considered on the issue of voluntariness clearly come within “the circumstances surrounding the giving of the confession.” 11
[563]*563We emphasize also that the case falls within no well defined pattern due to its unusual factual setting. The need for safeguards to prevent compelled self-incrimination by a person suspected and then accused of crime can be no less because he is a mental patient at a Government institution which has special responsibility for his custody and care. On the contrary, by reason of his patient status appellant was entitled to special regard for his rights by those under whose supervision he was placed. It might well have been their duty to have advised him to obtain counsel rather than only of his right to counsel.
Ill
A. In addition to what we have said, we think the confessions to Dr. Blum, Dr. Owens, and Detectives Wilson and Mann must be held inadmissible when we consider the principles embodied in Rule 5 of the Federal Rules of Criminal Procedure, the decision of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the Criminal Justice Act of 1964, and 18 U.S.C. § 3501(c).12
Rule 5(a) requires a person arrested to be taken “without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.” Rule 5(b) provides that the commissioner shall inform the defendant of the complaint against him, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel, of his right to have a preliminary examination, that he is not required to make a statement, and that any statement made by him may be used against him. The commissioner shall also allow the defendant reasonable time and opportunity to consult counsel. The importance of the right to counsel, among those of which the accused is to be advised, was emphatically declared by Congress in the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(b), which provides :
In every criminal case in which the defendant is charged with a felony or a misdemeanor, other than a petty offense, and appears without counsel, the United States magistrate or the court shall advise the defendant that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the defendant waives the appointment of counsel, the United States magistrate or the court, if satisfied after appropriate inquiry that the defendant is financially unable to obtain counsel, shall appoint counsel to represent him.
Under Mallory a confession made during a period of unnecessary delay in complying with the requirement that the defendant be taken before a magistrate is inadmissible at his trial. This judicial rule of evidence has been deemed essential to effectuation of procedural Rule 5 because of the importance of the Rule in the administration of the criminal law. Moreover, 18 U.S.C. § 3501(c) 13 does not [564]*564nullify this judicial rule of evidence, but only restricts its application in circumstances which are not relevant to the case before us.
In a strict sense it may be said that appellant was not arrested or detained as envisaged by Rule 5 and Section 3501(c) before the confessions to Dr. Blum and Dr. Owens14 and that, therefore, Rule 5, and the Criminal Justice Act provision for counsel, do not apply in appellant’s case. In all substance, however, even if not technically arrested, he was as though arrested. Probable cause for his continued confinement existed after the interviews with Officer Preston, aside from his patient status. He was transferred the next day to the maximum security ward. No additional restriction of his freedom occurred when the officers later formally said to him, “You are under arrest.” The impact of Rule 5, Mallory, and the Criminal Justice Act accordingly are not avoided because of the possible absence of a formal arrest.
Moreover, even if the Rule, the Mallory decision, and the Criminal Justice Act do not strictly apply as such, the rights they stand for cannot be disregarded in determining the voluntariness of appellant’s confessions subsequently to the one to Officer Preston. The latter is inadmissible for the independent reasons we have given. The others, aside from the reasons set forth in Part II, were inadmissible because appellant was entitled to no less safeguard against self-incrimination than is available under Rule 5 and Mallory to an arrestee, and under the Criminal Justice Act to a defendant charged with a serious crime who is without counsel.15
Finally, just as we have concluded that, as a minimum safeguard, appellant should have been advised of his rights, followed by their intelligent waiver, if the compulsion which existed were to be offset, we also conclude that absence of the safeguards provided by Rule 5 and the Criminal Justice Act also left operative the compulsion which, without those safeguards, caused the confessions to be involuntary. It is difficult to imagine a situation in which the purposes of the Rule and of the Act would have been more fully served by compliance with their provisions. It would have avoided the compulsion inherent in this investigation of an institutionalized mental patient who continued without counsel for eight months after the homicide, and for six months after his indictment.
B. The case also raises a question of due process of law. Appellant was not afforded the rights the law accords those accused of crime in order to protect the integrity of the administration of the criminal process. We do not decide the case, however, on grounds of due process, though the matters we discuss in this opinion suggest the possible availability of that basis for decision.
IV
Appellant contends that the court did not find the confession to be voluntary beyond a reasonable doubt. It is true [565]*565that the court did not explicitly so find, but the Government points out that counsel for defendant, just prior to the court’s findings, had argued that the accused’s statements were not voluntary beyond a reasonable doubt, as required to be admissible by Pea v. United States, 130 U.S.App.D.C. 66, 76, 397 F.2d 627, 637 (1968) (en banc). We note the absence of specific findings in this regard without deciding whether error occurred in this respect or if it did whether it was harmless.
The judge then submitted to the jury the question whether the confession to Detectives Wilson and Mann was voluntary. The jury was not instructed that they must find the confession voluntary beyond a reasonable doubt as a condition to their consideration of it as evidence in the case, as we held to be required in Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967).16 There is a question, however, due to the intervening enactment by Congress of 18 U.S.C. § 3501 (a),17 whether this requirement of Clifton applied at the time of appellant’s trial. The trial court did not appear to have Section 3501 (a) in mind and, as we have said, it is not referred to by the parties on this appeal. Nevertheless, it raises several questions concerning the responsibility of both the judge and the jury respecting the confession. We do not decide these questions, which it would be necessary for us to do except for the fact that we have held as a matter of law that the confessions are inadmissible and, therefore, cannot be considered by the jury. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
V
We are faced also with the possibility that appellant’s defense of insanity was prejudiced by the delay in the appointment of counsel. The indictment on which appellant was tried was rendered July 13, 1967, and filed with the court August 17, 1967, but it was not presented to appellant until his arraignment on February 16, 1968, when he pleaded not guilty. During all this intervening time he was in custody at St. Elizabeths without counsel. Counsel was not appointed for him until February 20, 1968, more than eight months after the crime and six months after the return of the indictment. Furthermore, as we have seen, he was never presented to a magistrate under Rule 5, when he would have been advised of his right to counsel and, unless waived, would have been provided with one under Rule 44(a) and the Criminal Justice Act, 18 U.S.C. § 3006A. Nor was local Rule 87(b) of our District Court complied with, which at that time provided that “[o]n the second Friday following indictment the defendant will be arraigned and counsel ascertained.” All this is difficult to understand unless due to a decision by the Government, later reconsidered, that appellant need not be tried for the homicide since he was a mentally disturbed inmate of St. Eliza-beths, was held there in maximum security, and was not to be released except if it were found under the provisions of D.C.Code § 24-301 (e) that he had recovered so that he would not, in the rea[566]*566sonable future, be dangerous to himself or others.
We are concerned to note that the Superintendent of St. Elizabeths certified to the District Court on August 8, 1968, that appellant was not only competent to stand trial but also qualified for unconditional release; in addition, three hospital doctors and one independent doctor provided appellant by the court testified at trial that at the time of the crime, in May, 1967, appellant had been cured of any mental disease or defect.18 The Superintendent’s opinion resulted, however, from a staff meeting held on June 24, 1968, over fourteen months after the crime. And when one of the doctors who testified at trial was asked whether an earlier diagnosis might have produced a different opinion, he admitted that it might have. Moreover, the examination of the court appointed doctor, occurring in September, 1968, was even more remote from the time of the crime. We do not hesitate to state that upon the record before us, there is substance to the contention that appellant’s defense of insanity was prejudiced by the delay in his presentment and arraignment and in the appointment of counsel.19 In Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932), the Court stated:
[In], a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.
The principle has been repeated recently in United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967), holding that “[t]he plain wording of this [Sixth Amendment] guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’ ”
Nevertheless, some delay in the examination of appellant occurred after counsel was appointed for him. Moreover, his counsel at trial represented that appellant had not been prejudiced by the delay.20 We accordingly hesitate to conclude that the possible prejudice to which we have referred requires dismissal of the indictment, although we do not pre[567]*567elude the District Court if so advised from passing upon this question after a hearing devoted to the issue of prejudice.
VI
We come to the question whether, in the event of a new trial, appellant is entitled to an instruction that because of his prior acquittal by reason of insanity in 1964, and his continued confinement at the time of the crime, the jury should have been instructed that it should be presumed that his mental disease had continued. The following instruction was given without objection:
Every man is presumed to be sane, that is, to be without mental disease or defect and to be responsible for his acts.
But that presumption no longer controls when evidence is introduced that he may have a mental disease or defect.
-x- * x x x x
When the issue is raised, the mental condition of the defendant becomes a critical element in the case. The Government must then prove beyond a reasonable doubt either that the defendant had no mental disease or defect at the time of the act, or if he did, that his act was not the product of the disease or defect.
The Government’s position is that the instruction was not plain error, citing Robinson (Joseph S.) v. United States, 136 U.S.App.D.C. 309, 420 F.2d 151 (1969) (rehearing en banc denied), cert. denied, 397 U.S. 977, 90 S.Ct. 1095, 25 L.Ed.2d 272 (1970), where a similar instruction was given.
Our reversal for other reasons does not preclude our consideration of the subject, notwithstanding the absence of objection, especially since this is a capital case. Nevertheless, we do not believe that in the circumstances the instruction given was reversible error. The real defense was insanity. Under the instruction the jury was required to consider the issue of appellant’s sanity as a “critical element in the case.” Furthermore, the instruction placed upon the Government the burden of proving beyond a reasonable doubt that the crime was not the product of a mental disease or defect. We do not think that the failure to give an instruction that appellant be presumed insane, unless the Government prove the contrary beyond a reasonable doubt, prejudiced appellant in his defense.
VII
In retrospect, it seems clear that in appellant’s condition a mistake was made in giving him as much liberty as he had. This is not to say that the hospital authorities are to be criticized. The search for certainty about a patient’s mental and emotional condition is often unavoidably impaired by the subtleties of the problem, at times involving undiscernible factors of causation in explaining conduct. A judgment reached in advance of events may be confounded by their occurrence. So it was in this case. Now, however, the situation is different. While for the reasons we have given we cannot approve the manner in which his present conviction was obtained, the record falls far short of demonstrating that appellant is no longer mentally ill or not likely to be dangerous to himself or others if at liberty.
Reversed and remanded.