*1 finding was harmless. I required opin- thus concur The instructions (1) subjected my colleagues. to a ion of being McGowan (2) environment, timely noti- sexual hostile official of given Spencer
fication was (3) environment, Spencer hostile deliberate indifference toward exhibited remedying the hostile sexual environment
despite
knowledge.
its actual
These are
proper
fact the
elements to establish liabil-
Davis,
ity according to Davis.
See
Eugene
GALL, Jr.,
Williams
ness on the of the Board that its Sixth Circuit. knowledge action or inaction based on its would, of the harassment with substantial Argued: Nov. subject certainty, the student to more Decided and Filed: Oct. Thus, correctly harm. the instructions Spencer concentrated on the actions of harassing on the student.
not actions Indeed, per these instructions would have if finding liability mitted a of no even continued, long harassment had so not act with Spencer did deliberate indif substantially ference. This is different the Davis formulation that a finding justified “only deliberate indifference is recipient’s response where the to the clearly harassment or lack un thereof is in light reasonable of the known circum Davis, 648, 119 stances.” U.S. at The district court’s summation of the therefore, liability, standard of was at least substantially accurate. See Clarksvitte- Montgomery County Sys. Sch. United Co., Gypsum
States F.2d (6th Cir.1991) (“A jury instruction which accuracy
states with the law substantial fairly jury submits the issues to the reversal.”). provide grounds will not Because the instructions “no ten- showed
dency to confuse or mislead law,” respect applicable principles id., I any conclude that error in the district
court’s definition of deliberate indifference
OPINION JONES,
NATHANIEL R. Circuit Judge.
Petitioner-Appellant Eugene Gall (“Gall”) appeals the denial of his petition, for corpus habeas challenging his convic- tion and sentence death rape and murder of a young girl in 1978. There is little doubt that Gall committed the acts in question. Instead, the central issue con- tested at trial was his mental state at the time of the killing. The case is further complicated by the numerous errors of n constitutional magnitude that Gall claims occurred during trial appeal, and as well as long-standing confusion regard- ing the meaning and role of extreme emo- tional disturbance Kentucky law. We trial, conclude that Gall’s conviction and appeal contravened fundamental constitu- tional are tenets. We therefore compelled to REVERSE the district court’s denial of habeas relief and REMAND for a condi- tional granting of the writ.
OVERVIEW
Edward Monahan (argued C. and This is tragic indeed a case. pri- briefed), Erwin W. (argued mary Lewis and that a tragedy young girl’s life was briefed), Advocate, Asst. Depart- Public taken in the most cruel and grisly fashion. Frankfort, KY, ment of Advocacy, Public It is also evident that Eugene Gall was the for Petitioner-Appellant. man who cut her life short. And naturally, the death culpability engen- and Gall’s Salven, Counsel, Valerie L. General De- dered an understandably outraged and an- Claims, partment Frankfort, of Workers’ gry public well prosecution as a deter- KY, Sexton, Gen., David A. Asst. Attorney situations, mined to convict. In these it is Frankfort, KY, (briefed), Ian Sonego G. duty a court’s to ensure that amid Gen., Attorney Asst. Rickie L. Pearson tragedy, anger outrage and over hideous briefed), (argued Gen., and Asst. Attorney perpetrated, acts a fair and constitutional Chandler, III, A.B. Attorney General, place. trial takes Constitutionally fair tri- Frankfort, KY, for Respondent-Appellee. als do not whenever judge, jury occur litigants go through pro- the formal MARTIN, Judge; Before: Chief presenting cess of arguments and examin- GUY, JONES Judges. Circuit ing For a trial to witnesses. be constitu- JONES, J., NATHANIEL R. delivered tionally requires sound far more: it is opinion court, of the in which prosecutor BOYCE trial where prove must all MARTIN, JR., J., F. joined. C. RALPH beyond elements of a crime a reasonable JR., GUY, 337-47), B. J. (pp. convict; delivered doubt order to pros- where the separate opinion concurring part ecutor adheres to certain rules of conduct dissenting in part. guarantee a proper fair trial and central issue. the trial’s crime became theories defendant’s consideration 30, 1978, jury found September evidence; jurors On where supporting engaged in murder guilty of while par- adduced evidence consider Finding mitigat- no rape. commission op- had an has a defendant and that ties circumstances, jury recommended ing rebut; a defendant and where
portunity 2, and the penalty on October adverse death right to cross-examine enjoys accordingly judgment entered trial im- contemplates state When a witnesses. *13 6. on October a constitution- penalty, the ultimate posing procedures jury selection requires trial al on the conviction directly appealed Gall to a jury predisposed seating a avoid Kentucky Su grounds, but numerous sentence, each indi- also allows and death See his conviction. affirmed preme Court any mitigating juror give effect vidual Commonwealth, (Ky. 607 S.W.2d v. Gall issues then that the It follows evidence. I). 1980) (Gall a petition for writ summary themselves do not lend raised 9, March 1981. was on certiorari denied treatment. 989, 101 Kentucky, v. Gall See (1981). 1529, Gall 67 L.Ed.2d reviewing each of painstakingly
After
relief
sought post-conviction
subsequently
trial
the extensive
raised and
issues
motion,
11.42
through a RCr
court
state
rele-
record,
examining the
minutely
and
Court denied
Kentucky Supreme
but the
authorities,
with
agree
we
governing
vant
relief. See
claims for
his various
collateral
The
errors occurred.
that substantial
Gall
Commonwealth,
(Ky.1985)
shortly thereafter she failed when a friend she had I. at the home of arrive and it was way meet on the planned to A. di- gone that she had not ascertained m. about 9:25 a. County rectly to school. At Boone April On Puckett, while morning Mrs. Connie rape grand jury indicted Gall along Kentucky driving her automobile two-phase In a of Lisa murder Jansen. Verona, Kentucky, to- Highway 16 from trial, consid- presented the Commonwealth Walton, Kentucky, ward her home committed the evidence that Gall erable jacket lying on the side of a red time of noticed killing, state at the so Gall’smental highway followed, near the intersection of Ste- around and and then Troop- Road. phenson-Mill stopped She and re- er Gary Carey, alighted who had it, thinking probably trieved it be- his cruiser and was attempting to block longed to one of the attending students the highway. Carey As signaled the the elementary school at Verona. She halt, driver to once, him shot got positive jacket that the had not been out of the Ford and him again, shot passed there when she place same then sped onward with Whelan empty- few minutes earlier way on her to Vero- ing gun into the rear of the fleeing na. Upon resuming trip her homeward car. immediately Almost other police open she observed an lying schoolbook chase, officers took up the and Gall was road, stopped picked it up. It finally brought to bay when attempt- Jansen, bore name of Lisa and when ed to a U-turn in make the town Dry Mrs. Puckett arrived back in Walton she Ridge and one of troopers rammed telephoned the school at Verona. *14 his cruiser into the Ford. The .357 re- principal school advised her that no one volver lying on was the floor of the by the name of Lisa Jansen was enrolled Ford. Also on the floorboard of the Ford there, but later in the day he back called automobile the officer found a cigar box and told Mrs. Puckett that a television $112.88, and money taken at the reported had a newscast Lisa as Jansen store in Gardnersville. missing. Mrs. then Gall the fur- reported Puckett had her discovery jacket of the and school- ther sum of on person. his $42.84 Sub- police. book to the Cincinnati sequent laboratory tests established that distance from The Lisa’s home Ohio a bullet removed from Trooper Carey’s to Kentucky at state line Cincinnati person had been fired from the revolver miles, was 10.9 and from the state line found in Gall’s automobile. southward via Interstate 75 to the place Shortly Gall, following his by arrest near Stephenson-Mill Road where her record, reason of police his became a
body was found the next morning is 22.6 suspect connection with disap- Hillsboro, Ohio, miles. Gall resided at pearance of Lisa Jansen. In 1970 he about 45 miles the other side of the charged had been with several of counts Jansen home. rape robbery and armed in southern At about 10:15 a. m. April on Ohio, had mentally been found incompe- a man later identified the appellant, trial, tent to stand and spent had some Gall, entered a small grocery store at 19 months in a mental at institution Gardnersville, village crossroads of Lima, Ohio, after which he by public miles or so entered roads from the (which vicinity plea Stephenson-Mill guilty of to charges those and spent Road a loop leading consists of off years and then five penitentiary in a state at Leb- 16), Highway back to and robbed anon, years Ohio. He was 31 age at storekeeper and her at customers the time of Lisa Jansen’s murder. point .357-gauge of a magnum stainless- I, Gall S.W.2d 100-01. After his steel revolver. The who storekeeper, trial, throughout arrest and Gall indi-
was type familiar with this weapon, cated to his lawyers and doctors that he observed from the exposed portions of block, chase, remembered the road car magazine it was loaded with shooting trooper. Yet he state claimed hollow-point cartridges. As soon as the that he could recall his actions left, telephoned robber she the local whereabouts much morning pri- headquarters Kentucky Po- State or to period those incidents. The reported lice covered the incident. Within a purported matter of minutes his amnesia coincided Gall encountered Whelan, Detective Joe killing. who turned the time of Lisa Jansen’s joint attempt assess mony described C. claim of amnesia. veracity of Gall’s as- challenges numerous Because Gall the re- attempted perform they When trial, detail we will describe pects his refused, claiming he procedure, Gall quired that pro- elements of important the most hearing, of war. After prisoner arguments. addressing his ceeding before Gall, finding issued an order the trial court trial. competent stand 1. competency question The 13, 1978, the trial court September On repeatedly through- emerged trial stand hearing on Gall’s pre-trial another held the trial it- pre-trial proceedings out stated again Dr. Noelker competence. arraigned day after Gall was self. definitely competent and that Gall “was indicted, appointed Dr. the trial court every that I have on occasion has been Noelker, psychologist, a clinical Robert noted, He howev- him.” J.A. 904. seen trial. competence to stand assess Gall’s er, together” and “more that Gall was “less hired Simultaneously, the Commonwealth than he had been on recent visits anxious” Chutkow, to deter- psychiatrist, Dr. Lee at 904. previously. J.A. Dr. Noelk- legal competence. mine Gall’s 23, 1978, after several September On April examined Gall er first dire, informed the trial days of voir court, by the appointment
After to “take a judge that he desired up to examine and observe Gall continued *15 in defense as far as [his] more active role Dr. the fall trial. throughout and cross-examining [ wit- questioning ] 30, 1978. April Gall on Chutkow examined hearing at 635. In a outside nesses.” J.A. on presented his views Dr. Noelker stated that he jury’s presence, Gall of hearing May on competence at a Gall’s jeopardize he would his insani- understood First, reported Dr. Noelker 1978. in the trial. Dr. ty by taking part defense in- verbal intelligence tests showed Gall’s although he believed Noelker testified high “in the extreme end telligence be develop- competent, remained recent Gall development.” of J.A. at superior range primarily repre- desire to Gall’s ments — showed Gall to be “a 872. Other tests “very bringing sent himself—were Gall disturbed, emotionally disturbed severely inability due to an incompetency close” to individual,” “schizophrenic a severe rationally preparing in to “assist counsel type” personality disorder —the paranoid at carrying out his own defense.” J.A. psychological disorder most severe 910. J.A. at 873-74. Never- diagnosed. can be trial, Dr. theless, observing behavior at concluded that due to Gall’s Dr. Noelker On disorder, counsel that he be- from his he was Noelker notified Gall’s remission Gall’s (sic) longer competent. The that he was lieved Gall was no “absolutely convenced” hearing, again court once called a trial. at 875. At trial competent to stand J.A. Dr. that Gall was Dr. that where Noelker testified hearing, Noelker also testified rationally longer “capable participat- no claimed to have no recollection of his Gall assisting his ing time of the murder. He in his own defense activity at the and/or conducting attorneys preparing rare in further stated that such amnesia is concluded that defense.” J.A. at 915. He personality type, disorders of Gall’s but himself from this yet disassociated “ha[d] that he had not concluded whether Gall Gall in it much peri- participating for the trial and [] had been an amnesic state Defendant,” attorney than the more as the question. od Commonwealth appearance reports by adding Dr. at placed into evidence two J.A. “deceiving.” at Chutkow, competence was J.A. also concluded that he was who an “excellent” abili- Although Dr. he had legally competent. J.A. at 1537. Both 918. taking proceedings understand the report ty Chutkow’s and Dr. Noelker’s testi- place potential nylon carpet and the seriousness of their red fibers from the car Gall consequences, he did not them “appreciate driving matching nylon the red fibers relative himself’ because he now be- found on the victim’s clothing; matching attorney. lieved he was a defense at J.A. tire tracks from Gall’s car and the tracks 921. Recent psychological tests confirmed taken the area where the victim’s finding incompetence, this Dr. Noelker recovered; body was matching blood type stated. between the semen stains on the front seat petitioner’s car and the samples from At hearing, explained this body; victim’s a matching hair and judge trial that he did not agree with his type blood between a long hair recovered “insanity only” counsel’s strategy, defense from Gall’s car and the victim’s hair. requested that the trial continue. He approach believed best trial was to 3. challenge circumstantial evidence him, against creating a reasonable doubt evidence, Due to strong this insanity guilt. as to his J.A. at 930. The trial defense and Gall’s claim that he was under judge tentatively concluded that Gall was an extreme emotional disturbance at the “extremely capable assisting his coun- time of the killing emerged as critical as- Nevertheless, sel.” J.A. he or- pects of the trial. Dr. Noelker testified dered another psychiatrist to examine Gall before the legally Gall was insane evening. April 5. Dr. Toppen, John psy- another chiatrist, reached the same conclusion Lanter, The following day, Dr. Kenneth deposition entered into evidence. The a psychiatrist, testified that he found Gall prosecution rebutted testimony by “normal” “participate and able to presenting a videotape and written tran- any degree [in] his defense.” at 842. J.A. script of Dr. testimony Chutkow’s regard- Specifically, Dr. Lanter found that Gall ing Gall’s mental Arresting condition. offi- appreciated legal his available defenses *16 eyewitnesses cers and also testified that defense); (including insanity under- appeared Gall calm and “normal” when stood the roles of the judge, lawyers and they during observed him and after the jurors trial; in the appreciated the serious- 10:15 a.m. robbery store in Gardnersville. of proceedings possible ness and penal- Because these assessments form a crucial him; against ties and exhibited above-av- part appeal, of Gall’s we will address them erage intelligence. J.A. at 841-46. After in detail. hearing testimony, this judge the trial once again concluded that “qualified Gall was First, Dr. Noelker testified before the mentally and emotionally,” “capable was of jury that psychotic Gall suffered from a assisting his counsel and able to [wa]s disorder —“the type most severe of person- participate in rationally his own defense.” ality disorder that we know.” at J.A. 956. at proceeded J.A. 853. The trial accord- Dr. psychotic Noelker testified that disor- ingly. ders of the type Gall suffered are “com-
monly characterized ... a loss of con- 2. reality[,] by tact with an inability to control below, As the district court delusions, found thinking, by one’s behavior or hallucinations, Commonwealth’s circumstantial evidence by grandiosity by inap- against Gall was “overwhelming.” J.A. at propriate affect of the circumstances he is 25. This evidence included: plac- evidence under.” J.A. at 956. Dr. Noelker reached ing Gall near the area where the victim’s his conclusion conducting personal after body was found around the Gall, time of the examinations and interviews ex- with murder; ballistics gun tests from Gall’s amining past his troubled and extensive matching the bullets recovered from history of mental (including illness Gall’s officer; bodies of police Jansen and the prior imprisonment and institutionaliza- 1211- at of the law. J.A. requirements of an assortment tion), performing that conducted firm out-of-state An tests. 12. test results of Gall’s a blind assessment of the Common- Testifying on behalf recommended finding, and his with agreed that he did wealth, stated Dr. Chutkow This medicine. administering psychotic from acute suffering was that Gall believe Noelker to conclude data led Dr. bevy of Dr. April 5. schizophrenia paranoid paranoid chronic from suffered that Gall at could also believed Chutkow he was at and that J.A. schizophrenia, require- comply his behavior times in likely to act dangerous extremely He at 321. stated the law. J.A. ments of environ- in an uncontrolled manner similar on Gall’s conclusions were based that these He further stated at 962. J.A. ment. 5 that he April of of the events account incurable, schizophrenia type of remembered, “[h]e which showed periodically only although Gall’s behavior realistically” and showed none thinking he is which] manner [in “the exhibited symptoms schizophrenia.” the “classical at this instance.” J.A. acting in accused Moreover, day of the on the 819. J.A. at repeated also Dr. Noelker 969-70. examination, nothing received “[Chutkow] to the trial court made he had observations schizophrenic him ... indicative exhibited the at trial behavior Gall’s ... after he have them nor did symptoms, commonly is [that] type of “disassociation jail.” at J.A. put arrested and he was at 978. schizophrenia.” J.A. found Further, Dr. Chutkow believed that 319. Dr. Noelker also history, Looking at Gall’s simply con- claim of amnesia was actual “blotted out his had that Gall found about to remain silent decision scious he had com- crimes knowledge” of sexual at his J.A 354. preceding hours arrest. his purport- consistent mitted case. J.A. 967-68. in this amnesia ed Dr. circumstances of Chut- peculiar The factors, Dr. Noelker Considering all these scrutiny. testimony warrant close kow’s “absolutely ques- no that he had testified clear Dr. Chutkow testi- The record sub- that Gall lacked mind” [his] tion open than in videotape fied rather conform conduct capacity to stantial showing any explanation without April the law on requirements prosecution provid- The was unavailable. he commit- criminal acts at 982. The J.A. absence, reason for Dr. Chutkow’s ed no personali- of a severe “the result were ted stat- appeal, for this argument oral at 982. severi- ty disturbance.” J.A. that it could not recall reason ed and destructiveness ty, permanence *17 live testimo- did not deliver Dr. Chutkow Dr. Noelker prompted also disorder Gall’s deposi- fact, gave the Dr. Chutkow ny. “never be allowed Gall recommend that in28 the same court- September on tion society [] member of free become place. took where the trial house at 970. J.A. again.” Furthermore, Dr. acknowl- Chutkow introduced into evi- Gall’s counsel also his 90-minute purpose edged that Toppen, of Dr. John deposition dence months before had of Gall examination Septem- Gall on psychiatrist who examined if Gall was simply to determine com- been Toppen Dr. 1978. concluded ber trial, if he and not to stand was petent paranoid type of a “schizophrenia had Gall at 1978. J.A. April on legally sane nature,” catego- he which chronic and stated at the trial As Dr. Chutkow himself “severe, of his certainly terms rized conducted deposition and a 1989 deposition 1207- to others.” J.A. at dangerousness brief, one-time petition, the for this habeas Toppen Dr. testified Gall further OS. compe- Gall’s in which he session assessed schizophrenic psychotic paranoid in a was way approximat- trial in no to stand tency rape and state when he committed intensity of and scope, duration 5, 1978, ed the and therefore killing April on person’s required to assess investigation conform his behavior capacity to lacked
283
(6th
legal sanity.
Cir.1999).
Not
Dr.
only did
Chutkow 171 F.3d
413
District
investigated
not believe he had
sani-
Gall’s
findings
upon
fact based
its review
ty, he did not consider himself to have
of state court records or written decisions
testifying
sanity.
as to
at
been
Gall’s
J.A.
plenary
receive
review. See Caldwell v.
(“I
411
did not conduct an examination on Russell,
(6th
Cir.1999).
181 F.3d
(“I
412, 413,
sanity.”);
his
J.A.
law,
Determinations of federal
or determi
quite
would have been
aware if there
awas
nations involving
questions
mixed
of fact
question
sanity,
they
about
and
didn’t ask
law,
receive de novo review. See
(“I
that.”);
me
really
J.A.
Mapes,
to determine competency); J.A. at 435-38 claims, his we examine whether Gall has insane).1 (denying that he stated Gall was remedies, exhausted his state which he Rather, purpose consistent with the of his gain must do to relief. habeas See Rust v. in April, examination Gall he believed Zent, (6th Cir.1994). 17 F.3d questions were at eliciting aimed his With one exception, presented trial, views on competency to stand Kentucky every courts with constitutional nothing more. claim that he raised before the district court and this Court. While Gall never
II. asserted state court the Confrontation This court reviews de novo a dis Clause claim that argued he has below and trict refusal grant court’s a writ Court, of before this agree we with the Com McQueen corpus. habeas See v. Scroggy, monwealth that he procedurally defaulted (6th Cir.1996). F.3d because, We on that cause, claim without he review the district findings court’s of fact failed to bring appeal either his direct for clear error. See id. Given the com postconviction or state petition. See infra. case, review, of this plexity our of necessi Because the requirement exhaustion “re ty, must explicit. Primary historical fers to remedies still available at the facts found “presumed state courts are ..., time of the petition federal it is satis and are only by correct rebuttable clear fied ‘if it is clear that petition [the habeas convincing Mapes Coyle, evidence.” er’s] claims are now procedurally barred deposition 1. The 1989 elaborated on Dr. Dr. Chutkow had testified have been testimony significant Chutkow's detail. Dr. assessing sanity. vital J.A. at 387-88. Chutkow "dialogue” concluded reflection, Upon Dr. Chutkow stated that a April Gall in 1978 "was sufficient for [deter- sanity full would have taken examination him mining] competency sanity.” not for but J.A. from two to four weeks. J.A. at 400. Fur- First, at 412. the vast described difference ther, Dr. Chutkow that his conclu- testified exams, competency sanity between both *18 sanity sions as to Gall's were not based on in the substance of the examinations and in (such prior psychiatric information as 364-385, length scope, their and J.A. at un- history) medical that is vital to such assess- derscoring inadequacy competency ments, because he never received that infor- determining exam he conducted in Gall’s san- until complete. mation after trial was (Indeed, ity. acknowledged using that J.A. at 397. competency sanity test to determine "would 426). proper.” not have been J.A. For 2. apply These standards of review because instance, typical while he testified that a sani- petition Gall filed his for habeas review before ty exam takes from six hours to hundreds of date, hours, 375, April 1996. After the new that review- J.A. at Dr. Chutkow testified that ing standards ushered in only he examined Gall for Antiterrorism 90 minutes. J.A. at 387; Act, Penalty fraction Effective Death of those-minutes were Pub.L. No. 5, 104-132, spent (1996), recounting April apply. events which 110 Stat. 1214 284 understanding Netherland, well as factual rational as Gray v. law.” [state]
under
(quot
him.” Id.
2074,
against
proceedings
152, 161,
135
116 S.Ct.
518 U.S.
States,
402,
362 U.S.
omitted);
ing Dusky v. United
(citation
(1996)
see
L.Ed.2d 457
(1960));
788,
see
at 249.
1.
that the rec-
argues
The Commonwealth
supports a conclusion
Gall
fairly
ord
supports
the trial
The record
repre-
trial
to stand
competent
was
competent
judge’s conclusion that Gall
agree.
sent himself. We
held a number of
to stand trial.
solely
hearings
devoted
may
separate
A
defendant
criminal
At
competence.
question of Gall’s
competent. See Godi
tried unless he is
Dr.
Dr. Noelker and
Moran,
389, 396,
May
hearing,
both
nez v.
legally
(1993).
concluded
To be com Chutkow
anme understanding of the nature and this trial very could be dangerous any the proceedings and the seriousness of defense” had; that he may have that he the proceedings my personal and belief understood that taking part in the trial extremely is he is capable of assist- was counter to the advice of his attorneys; ing his counsel. and that he understood that his counsel Nevertheless, defense, had raised an insanity J.A. at 936. judge or- and that participation dered an additional might examination the trial preju- Gall Dr. Lanter. Dr. dice that testified defense. Lanter the next J.A. at 636-37. After he, too, day that fully began, trial compe- judge found held another hearing tent to stand trial. J.A. at 840-53. outside the presence After jury. testimony, this the trial judge again, made his Once both counsel pros- defense and final decision that Gall competent: ecution questioned Gall about his compre- him, hension of the
Gentlemen, proceedings before having heard ... the testi- possible their consequences, mony Lanter, and the role of Doctor the testimony of of all persons Dr. Noelker involved. Gall then ex- testimony and course Gall, that his plained represent of Mr. decision to him- the Court is of opinion Defendant, Gall[,] disagreement self stemmed from a Mr. with his under- defense team as to trial very strategy, stands well the and that nature and conse- he considered himself quences him, capable as his proceedings against attorneys at qualified mentally examining witnesses. J.A. at emotionally 645-47, 657-59. capable hearing and is After this testi- assisting his counsel mony, judge participate and is able to concluded: rationally in his own defense. [M]y impression is that Mr. Gall’s choice ... charge decision to take of his own record, J.A. 853. From it is clear case is made intelligently compe- that the trial court the Dusky understood tently understandingly and know- competence standards for carefully en- ingly. certainly He has been advised of they sured that were met. Because its the possible consequences and I feel fairly conclusion is supported the rec- confident that he understands that. ord, we defer to it. J.A. Likewise, we hold that the trial
court undertook a satisfactory inquiry be again, Once we believe the record permitting fore Gall to serve as co-counsel shows that the trial properly ensured First, in his own defense. actually court’s de that Gall signifi- understood termination that competent Gall was to cance and consequences of his decision
286 851, 298, 330, 130 Delo, 115 S.Ct. 513 U.S. that his decision himself
represent
(1995).
mere existence
Godinez,
record
choice is made
doing and his
is
he
is
Winship,
process
due
Under
422
California,
Faretta v.
open.’”
eyes
proves ev
prosecution
if the
only satisfied
2525,
806, 835,
45 L.Ed.2d
95 S.Ct.
U.S.
beyond a
offense
charged
of a
ery element
omitted).
(citation
(1975)
Although
562
364, 90
U.S. at
doubt. See 397
reasonable
may not
himself
to represent
decision
1068;
v. New Jer
also Apprendi
see
S.Ct.
interest, the rec-
in Gall’s best
have been
2356,
2348,
147
466, 120 S.Ct.
sey,
U.S.
530
that Gall
conclusion
fairly supports the
ord
(2000)
(stating
reliance
L.Ed.2d 435
choice, and
to make that
competent
“ ‘re
standard
reasonable doubt
on the
voluntarily.
knowingly and
so
he did
way
about the
a profound judgment
flectfs]
jus
be enforced
in which law should
Emotional
of Extreme
B. Absence
Winship, 397
’’(quoting
tice administered’
Disturbance
1068).
361-62,
While
90 S.Ct.
U.S. at
violated
his conviction
contends that
Gall
clear, the
Winship is
rule of
fundamental
U.S.
Winship,
In re
process under
397
due
complex:
question is more
logical prior
(1970),
1068,
358,
L.Ed.2d
25
368
90 S.Ct.
question
ingredient
is
whether
did not estab-
because
Commonwealth
offense,
criminal
element of the
fact an
doubt
ele-
beyond a
one
reasonable
lish
ele
If it is such an
Winship.
implicating
law.
Kentucky
murder under
of
ment
ment,
“may not shift
the state
then
mur-
argues
he
that to show
Specifically,
defendant.” Patter
proof
burden
der,
prove
needed to
the Commonwealth
York,
197, 215, 97
v. New
432 U.S.
son
emotional distur-
absence of extreme
an
(inter
(1977)
2319,
L.Ed.2d 281
53
S.Ct.
beyond a reasonable doubt.
bance
684,
Wilbur, 421 U.S.
Mullaney v.
preting
present-
that the Commonwealth
contends
(1975));
1881,
287
eluding
possession
statutory
that because firearm
lature’s
definition of the of
fense.”) (citation
bearing
pun-
omitted).
was a factor
on the extent of
course,
And of
ishment, and not an element of the we defer to state courts’ construction of
crime,
charged
Winship
implicat-
was not
those state laws in making such determi
ed).
nations.
Mullaney,
691,
See
terson,
12,
432
at 211 n.
U.S.
8.Along dissent Patterson these the caselaw, the interpretation of its own opinion allow Court’s majority fretted the that did not opines these decisions persua- burden of dissent legislature to the shift ill- showing mental that a of severe establish any factor in a criminal respect to sion with We of EED. present evidence sufficed case, ness long not to mention is careful "so argument address in the statuto- factor the nonexistence infra. the crime. sole ry language that defines I Court argues the Gall 10. The dissent any to the fac- requirement references fact, the it was in distinguished In provide sections that tor be those confined Ratliff. challenge by Gall that separate of a context defense." for an affirmative 223, As distinguished (Powell, dissenting). IGall Court J. S.Ct. 2319 Ratliff. argued infra, in n. opposite explicitly just discussed Kentucky did — reading portion of by not erred mentioning of EED in the trial the nonexistence required jury to EED instruction language statutory that defines crime subjective standard— EED under de- examine considering failing as an affirmative mention EED the defen- circumstances as fense. Moreover, clearly we find that Gall EED); met dition bearing 431-32, id. at Edmonds, requirement S.Ct. 2906 (noting that an examiner’s ex- Ratliff having introduced the testimony of Dr. amination for the purpose of assessing a Noelker Dr. Toppen that he suffered defendant’s mental condition in the “here disorder, and, psychotic from a severe spe- and now” was irrelevant the defendant’s cifically, paranoid schizophre- from chronic mental condition when the killing oc- Moreover, curred) nia. Dr. Noelker stated explic- (Marshall, J., dissenting). Dr. itly to that Gall in a state of Chutkow also stated his belief that Gall did “extreme emotional April disturbance” on not have one particular form paranoid 5. J.A. 982-83. Dr. Noelker’s conclu- schizophrenia on day of the crime and sions were based on history of se- could at appreciate times the criminality of vere mental disorders and the tests and his conduct. 308-56, J.A. at 1535. But interviews Dr. Noelker had administered Dr. point Chutkow at no disputed crime, since as well as circumstantial showing that Gall psychot- suffered from a “aggressive evidence of Gall’s very ic disorder sufficient to constitute an EED. bizarre behavior” on day fact, of the mur- reasons, for several testimony J.A. at example, der. 1014. For Dr. failed to rebut in any way the evidence stated, Noelker “I not explain [can] Mr. that Gall suffered from EED while com- morning Gall’sbehavior on that in question mitting the killing. ... except terms of extreme mental First, Dr. Chutkow’s testimony was nar- [Tjhis disorder.... defendant had no rea- row, failing to overcome crucial statements about, [ ]
son rush helter-skelter throw- made Dr. Noelker Toppen. and Dr. *25 clothes, ing belongings, books and whatev- For example, he only stated that he could er all highway.” over the J.A. 1014-15. symptoms not find of paranoid acute
Meanwhile, the Commonwealth failed to schizophrenia before the onset of Gall’s
fact,
this showing
rebut
of EED—-in
claimed amnesia and that he believed that
does not even claim to have done so in the
legally
Gall was
sane.
testify
He did not
brief it filed with this Court. Dr. Chutkow that Gall had no mental disorder whatsoev-
prime
er,
was
state’s
witness on Gall’s
nor that he did not suffer from an EED
with,
mental state.
begin
To
gist
of
at
Indeed,
the time of the killing.
Dr.
testimony
that
his
was
competent
Gall was
acknowledged
Chutkow
that he could not
indeed,
to stand
purpose
sole
of
out
having
rule
Gall
schizophre-
chronic
trial —
only
his
examination of Gall had been to
very
nia' —the
form that Dr. Noelker had
competency.
determine Gall’s
In
diagnosed.
Buchan-
J.A. at 334-36. He also ac-
v. Kentucky,
an
knowledged
that
during
Gall’sbehavior
his
(1987),
but not to Gall's. to the dissent's testimony lay that the think do we Nor just prior schizophrenia acute from fering create a was sufficient at trial adduced the commission amnesia on period EED. The showing of simply over Gall’s But conflict at 438. crime.” J.A. of the testimo- part on the rebut relied not did district schizophrenia lacking acute at the present he witnesses evidentiary showing that and ny of officers strong Gall’s quiet, “appeared the time of robbery at that Gall an EED under later nervous, steady had excited, and not killing. not that voice” to conclude a normal hands several stated Dr. Additionally, Chutkow introduced suffi- had the Commonwealth know no he had basis times at 26. sanity. J.A. on Gall’s cient evidence killing. the time at state mental witness, testimony of one included This “no had instance, that he stated he For robbery, Gall during the Wynn, John after mental state as to Gall’s knowledge” not and did normal” [and] “nice seemed amnesia,” he claims which “time from Although at 1287.11 J.A. nervous. appear know Gall’s 335-36; he not did J.A. per se rule apply does not Circuit two approximately “gap condition for creating testimony from lay 350-51; barring hours,” J.A. at or three state to a defendant’s of fact as of time” before issue interval a certain “[f]or Smith, 437 F.2d feelings, mind, United States see murder, not know Gall’s did (6th Cir.1970), long have we J.A. at 540-41 judgments. sensations testimony. lay also acknowl- of such skeptical Dr. Chutkow been Importantly, lay testimony never consid- Smith, he had because stated edged that we Dr. data that extensive value when probative the more lacks ered state mental examined, he Dr. Noelker of the defen- Toppen knowledge “direct witness’s conclusions challenge their at 541. could Id. superficial.” is brief dant paranoid schizo- chronic Gall suffered noted that We also Finally, not 350-51. J.A. phrenia. never ob- that the witness a statement Dr. contradict never did Chutkow only Dr. part act on the an abnormal served suffered that Gall statement Noelker’s if, if, value but accused *26 (he killing committing the from EED con- and intimate prolonged had witness pres- on the question a asked was never There is accused.... the tact with EED), Dr. Chutkow of ence or absence witnesses that nothing to these show that Gall acknowledged because expressly might— an expert capacity the had —as schizophre- diagnosed of had a background judgments psychological valid to make in a of nia, have been” “state he “could relatively brief these the basis of on of crime. at the time exacerbation” contacts. sum, Dr. In of Chut- none J.A. at 352. (internal marks and quotation 541 Id. at Dr. countered Noelker’s kow’s statements omitted). holding State’s citation suffered definite conclusions a factual to raise lay insufficient evidence was schizophrenia and paranoid chronic sanity, the over Smith’s Smith issue killing. of the EED at the time under was no indication that there reasoned jury give instructs us to Jackson While to make were trained lay witnesses con- extant responsibility to full resolve neces- evaluations psychiatric kind of “the testimony prosecution’s flicts in questions” intelligently the sary to answer 2781, 319, 99 S.Ct. favor, at see 443 U.S. also was sanity, and there regarding to testimony failed contra- Dr. Chutkow’s either of “to indicate showing of no evidence aspects Gall’s dict the central witnesses, appellant, in observing these EED. argument that no Gall’s to rebut they to state evidence use this evidence 11. While showing rebutting his presented genuine evidence before there was issue EED at time he suffered from that killing. sanity, neither the district nor Gall’s (in brief) points this its Commonwealth
293 concerned his sanity compe Indeed, insane or under EED. even they if tence.” Id. at Following similar log believed he appeared “normal” on the sur- ic, Kentucky long courts have lay allowed face, these witnesses clearly lacked the testify witnesses to opinion as their of a capacity to determine if Gall suffered from state, defendant’s mental but have consis the type of disorder that expert tently emphasized the need sufficient diagnosed, witnesses or that he was under basis on which that witness form can her EED at the time of the killing several opinion. Commonwealth, See Brown v. hours earlier. 934 S.W.2d 248 (Ky.1996)(noting long Moreover, notwithstanding the fact that precedent time that lay can witnesses tes Dr. Noelker believed Gall’s behavior after “ tify as to a defendant’s when sanity ‘by the killing was further evidence of both association [they] and observation have EED and insanity, the Commonwealth had an opportunity to form opinion as theorized at trial that because Gall was ”) sanity of a person’ (quoting Ab attempting to flee the scene of the killing, Commonwealth, bott v. Ky. 624, he must have been sane and not under (1900)); S.W. Wiseman Com rejected EED. just We logic in a prior monwealth, 587 S.W.2d “ case, concluding that ‘any fool faced with (Ky.1979)(describing potential rele fear and foreboding can flee and hide. “lay vance of witnesses testifying as to the ” is the Such nature even a wild beast.’ customary of an conduct accused” d Love, Stacy v. (6th 679 F.2
jury’s assessment of a defendant’s mental Cir.1982) (citation omitted). Thus, flight state); Commonwealth, Jewell v. alone does not amount to evidence of sani (“‘The S.W.2d (Ky.1977) judg ty or lack of EED. person’s ment intimate friends and Finally, acquaintances we also do not his find soundness of mind is therefore always competent in Commonwealth’s cases of cross-examination Dr. ”) Abbott, this character.’ Noelker elicited (quoting 55 S.W. contradictions his state- 198). ments under direct examination. The Commonwealth asked a of ques- number case, In this lay question evidence tions seeking to show that Dr. Noelker did suffers shortcomings equivalent to that in not talk key witnesses of Gall’s First, behavior Smith. lay witnesses observed on April later or examine other key Gall not as he committed the crime in information, pieces before question, reaching but as he committed robbery conclusions as Gall’s hour, mental least one state. J.A. and perhaps hours, several at 993-1001. But Dr. explained after the Noelker Second, of Lisa killing Jansen. *27 that pieces those of these information witnesses were not observed Gall for matter necessary (no to of several determination other Smith, minutes at most. inAs their witnesses that they testified that he observation did not were neces- appear sary), and abnormal that not to in even them those brief Gall’s claimed moments prevented carries no amnesia him probative from weight rendering an ab- opinion sence of EED. based the 540-41; variety 437 of See F.2d at other avail- see Burks, also United able data 1011, he States had studied. at F.2d J.A. (6th Cir.1977) (stating that He lay proceeded testimo- to describe that ny that at great length. defendant did not data appear “abnor- When the Common- mal” persons attempted “who had very press wealth to Dr. limited Noelker as opportunity to observe” him to whether truly had little val- he could pinpoint Gall’s ue), rev’d grounds, on other 98 mental state at 8:00 a.m. on April he (1978). Third, L.Ed.2d 1 responded that he was “as I certain as can the Commonwealth introduced no evidence of anything my profession.... be As suggesting any that of these you witnesses had certain as can be ... that he was ” capacity the to if determine Gall was either actually there.... J.A. at 1017. The doubt, Gall’s conviction with Dr. reasonable ended Noelker
cross-examination process. violated due murder “any compe- that assuring prosecutor who has professional health tent mental I the data that reviewed all of
reviewed c. come to the same should [] could Finally, agree we with Gall at 1034. conclusion.” J.A. question, the Ken faced with this when tucky Supreme Court read the Common its overall the weakness of Reflecting in way statute that vio wealth’s murder evidence, closing ar- Commonwealth’s Winship. appeal, On his direct state lated argu- offer a failed to viable gument also had alleged that the Commonwealth Gall EED. It regarding the absence of ment of on the proof its burden not satisfied proposition merely offered erroneous I Court re of EED. The Gall absence prove an in- the defense’s failure a shred of sponded that there was “not prose- meant that the sanity defense also suggest acting was [Gall] evidence to its shouldering had cution succeeded an the influence of emotional distur under of proving the lack EED. J.A. burden ..., that he except for the evidence bance discussing the elements 1590-91. When from suffered a mental which illness doubt, proved beyond reasonable found, find, not jury could have but did in detail on the prosecutor elaborated at 109. was insane.” S.W.2d linking evidence Gall abundance of I, Although Kentucky Gall Su before contrast, the Commonwealth murder. preme showing Court had that a held point any showing failed to evidence comprise illness could evidence mental clear, it EED—largely, is be- absence of EED was an EED and that absence presented had cause Commonwealth of murder the Common element at 1592-1604. none. J.A. see, Ratliff, disprove, e.g., wealth must I held that Thus, S.W.2d Gall Court make even when we all inferences to place Gall’s evidence not sufficient favor, can not the Commonwealth’s we that burden on Commonwealth. trier fact conclude that a rational beyond of EED find an absence reason- proposi- There is much be said for at the time killed able doubt Lisa inher- tion an emotional disturbance point no did Jansen. At the Common- in a the kind of ing mental illness not showing rebut that he wealth suf- contemplated an emotional disturbance schizophrenia paranoid fered from chronic however, Assuming, the statute.... killing. at the time did the disorder, or Neither that a mental whether not Dr. Commonwealth counter ex- Noelker’s legal insanity, may constitute amounts to plicit that Gall under EED statement “explanation excuse” for a reasonable Instead, he. disturbance, when committed the crime. it was extreme emotional did Dr. Chutkow that he had upon state incumbent the trial court to re- no findings, basis to contest Dr. Noelker’s quire negating of that factor its disorders, murder, acknowledged but he that other instruction on which was done. *28 paranoid schizophrenia, say is including chronic That is not to that once the issue ground possibilities, (by were distinct raised evidence sufficient Gall doubt) have of the could been a state exacerbation. a reasonable Commonwealth one-time, countervailing the must it with evi- Neither did surface-level ob- meet lay raising servations the a the evidence the witnesses create dence. Unless dispute disturbance] over Gall’s mental state. Because issue emotional [of of viewing probative even when evidence in a such otherwise light force a Commonwealth, entitled as matter most a would be favorable defendant acquittal higher rational have law on the trier of fact could not found of (murder), beyond charge prosecution one of the a is not elements of murder required, to come negating ivith evidence “of such probative force that oth- forth evidence in order to sustain its burden erwise [he] would be entitled as a matter proof Otherwise it would of never be law to an acquittal on the higher of possible to convict a charge” defendant of places mur- an equally weighty burden der if if, defendant, there were no eyewitnesses and on that and thus violates due for example, process. he testifies that he acted self-defense, or was intoxicated out of Moreover, the Mullaney rejected mind, acting under the influ- several of arguments Maine’s with reason- ence of extreme emotional disturbance. ing that is relevant to First, this case. it added) (cita- stated that proof at 109 (emphasis S.W.2d of an element that omitted). distinguishes words,
tion In other between the Court murder and man- announced, slaughter implicates though even Winship Gall presented ev- as much as an element that idence require distinguishes sufficient to guilt a instruc- innocence. id. 697-98, tion that See the absence EED had 95 S.Ct. to be Second, rejected beyond arguments established doubt, iden- reasonable tical to those prosecution made did Gall I Court prove fact have to the burden-shifting beyond its is necessary absence be- reasonable doubt. cause of the difficulties prosecution Given that the absence of EED anwas faces in “proving negative”: element of murder under Kentucky law—-a No doubt this is often a heavy burden principle of law that Gall I accepted and prosecution to satisfy. The same Kentucky Supreme Court would may be said of the requirement of proof not overrule for years several por- —this beyond a reasonable doubt many con- tion of I directly violates Mullaney troverted facts in a criminal trial. But and In re Winship. The Gall I regime this is the traditional burden which our shifted the burden to defendants to pro- system justice of criminal deems essen- duce evidence of EED “of such probative tial.... Nor is requirement force that ... the defendant would be proving a negative unique in system our entitled as a matter of acquittal.” law an of criminal jurisprudence. Maine itself Id. Without that showing, a defendant is requires prosecution prove presumed to have acted in the absence of absence of beyond self-defense a reason- EED. Stated differently, the “absence of able doubt.... Satisfying this burden EED” drops element out of the state’s ... is identical to the burden involved required burden unless a defendant affir- negating the heat passion on sudden matively EED, shows even if the defen- provocation. Thus, we discern no dant presented has sufficient evidence to unique hardship on prosecution raise a reasonable doubt about the absence would justify requiring the defendant to of EED. This is exactly the type of bur- carry the burden of proving a fact so proscribed den-shifting by Mullaney; in- critical to criminal culpability. deed, the two cases are markedly similar. 701-02, (citations Id. at omit- In Mullaney, Maine had affirmatively ted). shifted the burden of proof “heat
passion” to the requiring that A close look at many Patterson —in defendant — malice aforethought to be “was ways conclusive- image the mirror of this case—fur- ly implied unless the proved defendant by ther illustrates the Mullaney violation preponderance fair Patterson, evidence that here. the Court reviewed he acted in the heat of passion on sudden inway which York New had adopted provocation.” 421 U.S. at the same Model provi- Penal Code EED *29 1881. The Court found this to be a clear sion penal into its law. Like other most Winship violation. We states, find that the I 3, supra see n. the New York code Court, by requiring a defendant to explicitly provided offer that EED was affir- an than onerous less is far evidence” “some of murder, tasked and then to defense
mative Kentucky placed proof of high burden the aby pre- EED proving with defendants I The Gall Court I. in Gall defendants Pe- on N.Y. See evidence. the of ponderance clear, rejecting this distinction made 205-06, itself 125.27(2); at U.S. § Law nal is issue that once the proposition had not Gall’s the state Because 2319. 97 S.Ct. create to sufficient “by evidence crime, raised and the of an element EED deemed doubt,” the Commonwealth reasonable “not did serve EED showing of because countervailing evidence. rebut it with must which the crime facts of any negative to the raising evidence Rather, the only when of convict to in order prove tois the State other- force that probative “is of such issue shift permissibly murder,” could New York aas would be entitled defendant the wise EED. to show onto defendants the burden higher the acquittal on to an lawof matter The Court 206-07, 2319. at Id. ne- (murder)” prosecution must the charge explained, of burden to sustain its evidence the gate code, New York criminal its revising Thus, the while 109. at 607 S.W.2d proof. ex- of the provided defense affirmative to sufficient evidence found ..., but disturbance emotional treme negate to the need an instruction merit the facts only if so do willing to to weighty insufficiently factor, it was that were established the defense out making to rebut Commonwealth require the certain- with sufficient the defendant See proof. of its burden part of as factor to unwilling itself The State ty. I direct- of Gall threshold higher This id. of absence to establish undertake Mullaney the distinction ly contravened doubt, a reasonable beyond facts those de- that a merely requiring between drew too would be proof that fearing perhaps with re- evidence some “present fendant difficult.... requiring at the fact issue” to spect In stark con- 2319. at 97 S.Ct. Id. affirmatively establish that must “he that established legislators trast, Kentucky 31, 95 S.Ct. n. at 702 See fact.” murder, and “clear- of an element EED added). (emphasis to bear prosecution intended ly I Court short, the Gall regime In Bartrug, 568 non-persuasion.” of risk evidentia- to Gall’s response constructed allowing the logic very 926. S.W.2d at constitutionally infirm was itself review ry consti- pass statutory scheme York New have should The court Mullaney. under renders thus Patterson muster tutional time at the Kentucky law adhered re- burden-shifting unconstitutional prosecu- head-on whether addressed I. gime Gall the absence to show itsmet burden tion Commonwealth although the Finally, doubt. a reasonable beyond EED here) (it that not do so does argue could Kentucky Su- review, the averting this the state comports with regime IGall process. due violated preme Court Mullaney government that ment “when proof a burden only bears 3. homicide in a presented properly issue prosecutor’s even the In contrast case,” at 95 S.Ct. 421 U.S. Kentucky law reading of judge’s trial The Court ring hollow. argument Kentucky time, mention not to Car North in Hankerson elaborated interpretation clear Supreme Court’s not forbid Mullaney “does olina that Guy’s statute, Judge dissent murder criminal defen requiring States was not of EED the absence contends evidence at least some present dant conclu- murder, our element respect to heat issue raise a factual clearly errone- “is most it was 237 sion self-defense.” passion or we argues It also (1977) Post ous.” 53 L.Ed.2d n. finding error “eompound[]” our added). requirement (emphasis But *30 equates mental illness with EED for pur- thorough review of the evolution of Ken- poses Kentucky of the tucky murder EED statute. easelaw reveals this. See id. carefully After considering the Following the incorpo- Commonwealth’s points dissent’s and underlying reasoning, ration of the Model Penal Code language respectfully disagree
we with both asser- into its definition of murder in Indeed, tions. we find the dissent’s rea- first Kentucky Supreme Court cases to soning to on an rest reading anachronistic explore its Edmonds, meaning were Rat- of Kentucky law—based on Kentucky liff, and Bartrug. As stated supra, all Supreme explicit Court’s and non-retroac- three opinions stated without condition or re-interpretation tive of the Common- exception that the failure to act under the wealth’s murder years statute in the after influence of an EED was an element of the its IGall decision. See, offense murder. e.g., Edmonds,
298
Su-
Moreover,
States
1986).
the United
of extreme
absence
in the
conduct
wanton
and
only Wellman
Court, looking
disturbance.”)-
preme
Importantly,
emotional
Wellman,
that
concluded
of
light
of
in
Gall
passages
on
Gall
relied
cases also
these
defense, not an
affirmative
an
I
was
burden- EED
new Gall
the
I, indicating that
v.
Buchanan
See
murder.
of
the continu-
with
element
coexisted
regime
shifting
n.
408&408
an Kentucky,
was
of EED
absence
that
ing notion
(1987).
L.Ed.2d
murder.
of
element
routinely labeled
have more
cases
Later
change.
would soon
interpretation
This
see,
murder,
e.g.,
to
defense
as a
EED
the
which
on
Wellman,
case
a 1985
In
Commonwealth,
S.W.2d
v.
Foster
Kentucky Su-
relies, the
heavily
dissent
of
role
precise
although the
(Ky.1991),
of
plainest
in the
articulated
preme
flux.12
in
appears
still
defense
that
Gall,
EED
of
absence
that,
prior
terms
murder,
of
element
an
been
had indeed
in
flaw
illuminates
cases
of
This line
changed
formally
had not
Gall
and that
of
absence
that
contention
the dissent’s
per-
it had
although
interpretation,
that
at the
murder
of
an
not
element
was
EED
was immi-
change
that the
signaled
haps
is
on Wellman
I. Its reliance
of Gall
time
nent.
over-
explicitly
case
that
because
in error
argu-
continually beset
areWe
of
the absence
holding that
the cases
ruled
emotional
“extreme
upon
founded
ments
murder —and
of
an element
was
EED
of
articulation
despite
disturbance”
when
place
in
very cases
were
those
is
in
I
It
impact
[Gall
].
meaning and
its
occurred,
that
and
appeal
and
trial
Gall’s
of
cause
principal
that
opinion
our
Only in
place.
Henley left
I and
Gall
court,
this
failure of
problem
Supreme Court
Kentucky
did
Wellman
those
overrule
Gall,
specifically
not
EED is
of
the absence
establish that
' Ed-
Ratliff, Bartrug and
portions
explain
murder,
of
as we
of
and
an element
absence
that the
declare
which
monds []
retro-
holding
apply
not
that
we can
infra,
an es-
distress is
emotional
extreme
appeal.
of
conviction
actively to
murder
the crime
element
sential
of
of
reliance
unavailing is the dissent’s
Equally
prove
the Commonwealth
require
on
Buchanan,
relied
that case
since
on
the extent that
... To
absence.
such
an
EED was
conclude
Wellman
extreme
absence
declare
cases
such
of
sum, the dissent’s
defense.
affirmative
element
to be an
distress
emotional
of
was
of EED
that the absence
conclusion
murder,
expressly
are
they
crime
is based
murder
element of
an
not
oveiTuled.
conviction
postdated Gall’s
caselaw
(emphasis
Wellman,
at 697
694 S.W.2d
that resulted
and,
appears,
it
appeal,
explain
added).
proceeded
trig-
The court
IGall
shift that
dramatic
emotional
of extreme
presence
Mullaney
“[t]he
violation.
to its clear
gered due
evidence,
an
matter of
ais
distress
case
to Gall’s
applicable
The caselaw
later,
year
Id. A
crime.”
indeed
element
of EED
the absence
clear
Wellman
explained that
court further
of murder.
element
emo-
of extreme
absence
“clarif[ied]
an element
is not
disturbance
tional
ii)
the Commonwealth
which
murder
crime of
reasons,
respectfully
we also
For similar
v.
affirmatively prove.” Matthews
must
careful substan-
the dissent’s
disagree with
(Ky.
Commonwealth, 709 S.W.2d
Messer,
murder.”
precludes a conviction
Coffey
Cof-
recently,
12. Most
evi-
"once
explained that
ex-
(Ky.1997),
fey
further
court
945-46
S.W.2d
introduced,
"occasionally de-
the absence
although
has
plained that
it
EED is
dence
circumstance,
mitigating
as a
EED
scribed
offense
an element
becomes
thereof
is,
I,
...
at 108
e.g.,
fact,
607 S.W.2d
Id. at 946.
murder.”
presence
its
a defense to
extent
EED,
tive definition of
require-
its
defendant’s action be assessed from the
ment that a specific predicate provocation viewpoint of a person in the actor’s situa-
*32
trigger
must
EED. Specifically, the dissent
tion, “the word ‘situation’ is designedly
Kentucky
reads
law to
distinguished
have
ambiguous.” Id. at 62. “There thus will
EED
between
and mental illness or dis- be room
interpretation
for
of the word
ease that
to insanity.
amounts
“The facts
‘situation,’ and
precisely
that is
the flexibil-
surrounding
key
the murder are
ity desired.” Id. The ALI added that it
extreme emotional disturbance defense.
sought
juries
for courts and
to focus far
The facts surrounding
mental
defendant’s
more closely on mental infirmities:
key
disease or
are
to the insanity
defect
provision]
[The
places far more empha-
added).
defense.” Post at
(emphasis
sis than does the common law on the
dissent,
According to the
only when a
subjective
actor’s
mental state.
It also
predicate provocation13 is found to have
may allow
inquiry
into areas which
triggered the killing must
prosecution
have been treated as part of the law of
negate a showing of EED. Again, while the
diminished responsibility or
insanity
dissent’s conception may reflect the law in
defense.
Kentucky today, this more refined defini-
tion is based on caselaw
developed
Id. at 54.
separate
publication, the
I,
well after
that can not be Code’s primary author echoed the ALI
applied retroactively to
Again,
his case.
Commentary, stating that the
provi-
new
review of the
in Kentucky
evolution
case-
permitted
sion
a reduction to manslaugh-
law on the substantive definition of EED ter “on the basis of a standard much
plainly
point.
illustrates this
broader than the concept of provocation as
First, however,
important
it is
to under-
developed at the common law.” Herbert
stand the intent of the Model Penal Code Weschler,
Criminal Law
Codification of
they
framers when
concept
introduced the
in the United States: The Model Penal
of EED. The ALI Commentary explains Code,
(1968).
68 Colum. L.Rev.
“provision
includes the common- “The purpose
explicitly
was
give
to
full
law
provocation
doctrine of
but is not so scope to what amounts
plea
to a
in mitiga-
ALI,
limited in
scope.”
its
Model Penal
tion based upon mental or emotional trau-
Commentaries,
210.3,
§
Code and
at 53-
significant dimensions,
ma of
with the
54. How far
provision
intended to
asked
show whatever empathy it can.”
move from the common law was less than
Id.
clear, however. The Commentary itself
Given the intentional
acknowledged
ambiguity
that it
moving
into un-
Code,
Model Penal
charted
states
provision,
waters. The
adopted
it
differ-
ex-
plained,
approaches
ent
away
defining
“sweeps
rigid
EED. Some
rules that
provocation
limited
added
additional specificity
certain
defined cir-
within
stat-
Instead,
See,
cumstances.
it
utes
e.g.,
casts the
themselves.
issue in
N.D.C.C. 12.1-
phrases that
16-01 (noting
have no
“[a]n
common-law
anteced-
extreme emotional
ent and
no
hence
disturbance is
accumulated doctrinal
excusable ...
if
is occa-
content.” Id. at
61. “This
sioned
development
provocation,
substantial
or seri-
reflects
event,
of many
trend
modern deci- ous
or situation for which the of-
sions
preconceived
to abandon
notions of
fender was
culpably
responsible”);
what
adequate provocation
constitutes
§
N.H.
Stat. Ann.
630:2 (requiring “the
to submit
question
to the jury’s delib-
influence of extreme emotional disturbance
eration.” Id. It further noted that when
caused
provocation”).
extreme
Most
setting out that the
states, however,
reasonableness of the
left the ambiguous lan-
explains
13. The dissent
predicate
that a
prov-
surrounding the murder that would arouse
encompasses
ocation
"something either done
extreme
disturbance.”
emotional
Post at 343.
by the victim or inherent in the circumstances
Ed-
it.”
see
when we
know it
“that we
allowing
unchanged,
MPC
guage
Despite
monds,
at 27.
586 S.W.2d
meaning
precise
shape
courts
early
indicated
cases
ambiguity,
new
read
courts
state
Several
EED.
Con-
York and
New
agreed with
re
the court
any provocation
eliminate
language
impairments
mental
certain
necticut
showings
allowing certain
quirement,
EED,
no
and that
show
were sufficient
to show
sufficient
to be
disease
mental
event
triggering
showing of
additional
Appeals,
York Court
EED.
New
necessary.
advances
instance,
that “tremendous
found
pri
had
1881”
since
psychology
made
*33
and Edmonds
The
both
Court
Ratliff
Peo
EED defense.
new
to the
marily led
psy-
defendants’
respective
pointed
288, 383
Patterson,
N.Y.2d
39
v.
ple
EED
warranting
chological maladies
(1976),
898, 908
N.E.2d
N.Y.S.2d
“trigger-
the
instructions,
require
to
failing
2319, 197, 97 S.Ct.
432 U.S.
aff'd
demand.
the dissent
ing” event
Therefore, the com
(1977).
L.Ed.2d
record
“[t]he
that
stated
Ratliff, the court
immediacy
provocation
law
mon
an emotional
of
with evidence
replete
is
defense
passion”
of
“heat
for the
prongs
It im-
at 309.
S.W.2d
disturbance.”
York
under New
required
longer
no
were
expert
“[t]wo
that
mediately elaborated
extreme
of the
rather,
purpose
law;
“[t]he
suf-
appellant
that
testified
psychiatrists
permit
tois
defense
disturbance
emotional
type.
schizophrenia-paranoid
fered from
actions
that his
to show
the defendant
very
she was
that
experts agreed
Both
infirmity
a mental
by
caused
were
shooting
time of
at
likely psychotic
insanity, and
of
level
arising to the
was
what
comprehend
unable
and was
having committed
for
culpable
is less
then described
The court
Id.
occurring.”
interpretation
This
Id. at
them.”
the circum-
about
the defendant’s delusion
Supreme
aspect of
a crucial
was
own
her,
on her
based
around
stances
case.
the Patterson
of
affirmance
Court’s
includ-
townspeople,
fellow
testimony that
(not-
206-07,
at
See
shot, were
whom she
store clerk
ing the
de-
affirmative
EED
York’s
New
ing that
opin-
The
her. See id.
against
conspiring
only
show
a defendant
required
fense
had
Ratliff
out
pointed
ion further
to the level
arising
infirmity not
“mental
for treat-
care center
a local
visiting
been
Pat-
adopted
also
insanity”). Connecticut
some
for
condition
mental
her
ment of
the de-
holding that
reasoning,
terson’s
While
shooting. See id.
prior
time
or
require
provoking
“does not
fense
discussion
suggests
the dissent
Elliott, 177
State
triggering event.”
was
court
“clearly” shows
Ratliff
(1979).
411 A.2d
Conn.
vic-
of the
“delusion”
Ratliffs own
treating
re-
her as the
against
conspiracy
new tim’s
ambiguity of
Faced
opin-
provocation,”15
“predicate
quired
statute,14
Kentucky Supreme
murder
sort.
no statement
makes
ion itself
it
a decade before
than
more
waited
psy-
on Ratliffs
Rather,
more
it focuses
definition
precise
substantive
developed
ex-
as described
disposition
chological
it had
trial
time of Gall’s
EED. At the
delu-
her
manifested
definition,
pert witnesses
and at
a clear
lay
yet to
down
fact,
“the
noted,
opinion
The
merely
sions. .
had stated
appeal, it
time of his
by the
perpetrated
injustice
affront
injury,
Commentary accompanying the intro-
14. ”
(quoting
Id.
actor.'
upon deceased
Kentucky
provision into
the new
duction
201.3).
Code,
other
§
"In
Penal
Model
words,
provision abandons
EED
that the
law stated
event, even
any
possible
it
killing
“that the
requirement
law
the common
words,
or emotional
extreme mental
to arouse
upon 'ade-
passion’
heat if
in ‘sudden
occur
disturbance,
Id.
used here."
phrase is
as that
”
§
Ky.
507.030.
provocation.’
St.
quate
circum-
the victim
EED "is not restricted
claimed
Ratliff
comm.
act that
15. The
as if
"looked me
provocation
that she
would constitute
committed
stances which
at 309.
my
Id.
pull
hair.”
term,
going to
she was
meaning
i.e.
ordinary
‘in the
situation presented was one which in the
gering predicate for an EED instruc-
past would have been labeled as wilful
tion,
post
see
the Edmonds
murder with a defense
insanity.”
Id. Court
itself suggests that
this was not
Only
years later,
three
the Kentucky Su-
Indeed,
case.
flatly
re-
preme Court itself interpreted
to jected the Attorney
Ratliff
General’s argument
have found that an EED instruction “was
the EED instruction was not nec-
mandated because two psychiatrists testi-
essary because EED derived from the
fied that
the defendant
‘very likely’
“heat
passion”
(which
defense
re-
psychotic at the time she committed the
quired provocation).
Instead,
the court
homicide.” Henley,
Again
Edmonds,
in
Kentucky
the
Just as with Ratliff,
Su-
there was no
preme Court relied primarily
psycho-
on
of any predicate
mention
provocation trig-
logical evidence to find that an
gering
EED
a response from
Edmonds-—
instruction was necessary. The
his
court
mental state.
explained that Edmonds had previously
these opinions
Given
from
prior
the
two
hospitalized
been
for a psychoneurotic
years,
it is
surprise
no
that
the Gall I
condition,
that prior
to his alleged
Court, when faced with a situation where
killing of
23-year
woman
old
with
primary
the
evidence of EED was that of
whom he
infatuated,
was
he had been
illness,
Gall’s mental
did not simply reject
taking a self-prescribed and self-com-
Gall’s argument under the dissent’s ratio-
(a
pounded medication
mixture of sodi-
nale that Gall did not offer a “provocation
um bromide or alcohol and potassium
predicate.” Rather, the Court stated that
bromide) that
led him to “blank out”
and act
in a “bizarre
there
manner.”
is not a
shred of evidence to sug-
S.W.2d at 26. The court
gest
then explained
that he
acting
was
the
under
influ-
that due to continual jealousy and
of an
disturbance,
ence
emotional
or that
delusion that
she was seeing
any
another
there were
circumstances existing at
man, Edmonds
shot her.
See
id.
the time of the killing or
provoke
the
While
again
dissent once
casts Ed-
stimulate
disturbance,
such a
except for
monds’s “delusion” as
required
the
trig-
the evidence that he suffered from a
points
16. The dissent
out
disagree-
the
majority
plainly stated that
absence
ment between the majority and dissent in
EED
murder,
was an element of
and the
did not involve whether EED
anwas
Ratliff
did
disagree
dissent
not
point.
with this
element agree.
the crime of murder. We
Kentucky
Had
fact.
accommodate
jury could
which
from
illness
mental
to EED
approach
find,
was
followed
law
found,
did not
but
have
describes,
this discussion
none of
dissent
insane.
But
necessary.
been
I would have
then
court
While
at 109.17
607 S.W.2d
Ratliff,
in Edmonds
decisions
said
to be
much
[was]
that “there
stated
I,
after Gall
good law
remained
which
dis
an emotional
proposition
for the
casting
simply
the court
precluded
illness
in mental
inhering
turbance
the dis
manner
in the
aside
contem
the evidence
disturbance
emotional
the kind
proposes.
analysis
Ed-
now
statute,”
with
sent’s
consistent
by the
plated
hold.
not so
it did
Ratliff,
monds
evidence
telling
the most
Finally,
appeal,
Rather,
purposes
for the
isI
through Gall
EED
understanding of
disorder,
mental
that a
“[a]ssum[ed]
court
Kentucky Supreme
direction
the new
insanity,
legal
amounts
not it
whether
acting
years,
subsequent
adopted
‘explanation
a reasonable
may constitute
expressed
it first
skepticism
upon the
distur
emotional
extreme
or excuse’
definition
the loose
regarding
IGall
there
showing that
Further
Id.
bance.”
Drogin, To
Eric Y.
generally
EED. See
require
provocation
hard-and-fast
was no
Emotional
Insanity:
“Extreme
Brink of
court’s
trial
stated
ment,
Law,
Ky.
N.
Kentucky
Disturbance”
EED
half of the
the latter
to omit
decision
be-
(1999) (explaining that
99, 110
L.Rev.
there
proper
because
instruction
Gall,
“witnessed
the 1980s
ginning
appel
suggest
“no evidence
rulings of
reaction
inevitable
any ‘belief
involved
motivation
lant’s
*35
”). While
Edmonds
of
nature
Ratliff
circumstances
regard
with
part
his
(im-
625
586
Hayes,
S.W.2d
Henley and
disturbance.”
emotional
alleged
that induced
suf-
defendant
that
that evidence
plying
II, 702 S.W.2d
also Gall
see
Id.
evi-
was
schizophrenia
paranoid
fered from
where emotional
(“[U]nlike the case
at 43
EED),
to
adhered
of
dence
Ratliff
by some
precipitated
has been
disturbance
Wellman,
to over-
Edmonds,
addition
in
in
the defendant
that
circumstance
event
Ed-
the statements
ruling
Ratliff
evidence
exist,
was no
there
to
believed
of
an
comprised
element
EED
that
monds
by any ‘belief
was motivated
that Gall
also
murder,
Kentucky Supreme Court
the circumstances
to
regard
with
part
illness
mental
held that
first time
for the
distur
emotional
alleged
induced
that
It
EED.
show
sufficient to
not alone
was
hold
rather than
bance.”).
Importantly,
“probative,
be
there must also
held
evidence
proffer
failure to
ing that Gall’s
initi-
evidence of
independent
tangible
that he
meant
event
precipitating
about
circumstances,
provocation
as
such
ating
was
EED and
showing of
made a
had not
to
is contended
his act which
of
instruction,
at the time
to
not entitled
therefore
disturbance.”
emotional
extreme
arouse
of
the language
merely found
later, the
year
at 697. One
to
694 S.W.2d
could be altered
EED' instruction
was
that he
entitled
probative force
such
quote
dissent
shows
17. This
law. Because
of
acquittal as a matter
con-
I Court
stating that
Gall
when
error
under
burden-shifting
EED,
was unconstitutional
of
was
evidence”
there
"no
cluded
finding
deference.
no
owe this
Mullaney, we
finding great
we owe that factual
and that
Kentucky Su-
at 341. The
deference. Post
challenged this instruc-
separately
has
was no
18. Gall
actually
that there
stated
preme Court
Like the
process.
of due
a violation
tion
"except for” the evidence
of EED
evidence
Court,
we find that
Supreme
Kentucky
illness,
with
making clear—consistent
mental
light
factual
proper
was
instruction
such evidence
and Edmonds—that
Ratliff
crime,
"by
not
and did
stating
circumstances
than
Rather
evidence
EED.
result-
that the
evidence,
the entire trial
infect
itself so
any
present
failed
Gall had
Cupp v.
process.”
due
ing
violates
conviction
that the bur-
concluded
Gall I Court instead
141, 146,
Naughten,
prosecution
onto
never shifted
den had
(1973).
L.Ed.2d
presented evidence
Gall
because
had
Kentucky Supreme Court
iii)
elaborated fur-
ther, disavowing its statement in Edmonds
Finally, we wish to articulate the
it,”
that “we
it
know when see
and choos-
reasons that the dissent’s
appli
retroactive
ing instead to define EED precisely. See
cation of Kentucky Supreme Court deci
Commonwealth,
McClellan v.
715 S.W.2d
sions that overruled the
precedent
clear
First,
(Ky.1986).
cited
Well-
governing
I
would
improper.
“[ejxtreme
proposition
man for the
First, by applying the more
emotional
defini
disturbance is
modern
something differ-
tion of EED
ent
insanity
case,
to Gall’s
or mental
illness.” Id. at
dissent
It
explicitly
directly
then
Ratliff,
overruled
contravene the Kentucky
concluding that the
Supreme
Court had “in-
Court’s own determination that
Ratliff
dicated that extreme emotional distur-
the new definition of EED in McClellan
bance was akin to a lesser-degree defense was to be applied prospectively. See
insanity”
and had suggested that a Smith,
view of state in case. Cir.1998) plied petitioner’s that a (stating (6th 314, 328 F.3d issue revisit an should court habeas demonstrates example simple A “especially doing so is that law, requires that Virginia and state v. Jackson point. law issue the state rational when whether a examine inappropriate” courts habeas v. Johnson a defendant appeal); have found on direct fact could resolved trier of Cir.1997) (3d doubt, and in- 104, 113 a reasonable beyond 117 F.3d Rosemeyer, guilty “with be made [], act courts that such review (“In district cases structs habeas ele- the substantive the state explicit reference has decided court the state after as defined offense the criminal that ments of record the same it to applied law and n. at 324 443 U.S. law.” state permit To court. the habeas is before petitioner, habeas that a Suppose di- about to speculate courts federal elements three a time when convicted face of in may take law state rection law, that argues under required state were court of a state final decision authoritative third prove failed prosecution interfere directly case the same in be Jackson would under Review element. mean- ability to decide the state’s with retro- court were if a habeas meaningless omitted). law.”) (citation It is own ing its removing cases later state apply actively to law, state binding baseline against this overruling explicitly third element hand, we case at the facts case. petitioner’s applied precedent court’s resolution de novo state review the dissent’s what precisely this is Yet our Con- violated conviction whether Gall’s we do. approach proposes Illinois, v. Bute generally See stitution. L.Ed. Moreover, pro due constitutional (“It to decide (1948) province is our casting aside violated would be cess court Illinois practice whether estab holdings Supreme Court Kentucky in con- admittedly cases, although these as an element EED absence of lishing the Illinois, was so formity with the law overruling cases favor of later of murder process] [due variance clearly when particularly precedents, those clearly invalidat must applied these sentences itself Kentucky Supreme ed.”). may 2) consult case, 1) a habeas While to Gall’s early cases those instances I, intervening state decisions and after Gall both before cases heard clarify illustrate 3) decisions place where those before that took crimes in the petitioner’s Mullaney applied the law than in No Gall’s. less after F.2d see, case, e.g., Young, Cole itself, conclusion Wellman’s applying own *37 (1987) intervening 412, (examining 421-22 was not element EED absence of comprehend state cases (when later decisions I even Wisconsin crime decisions effec petitioner), would applicable law premise) crucial accepted that misinterpreta on an proof courts’ of other tively that correct the burden shift Foltz, Gall, 804 law, Duffy v. difference tions of see onto element (6th Cir.1986)(deferring Mullaney violation 50, 54 being F.2d stage. The review conclusion Court’s collateral Michigan Supreme occur defense, has cau Mullaney which insanity since Supreme of Court role not be allowed inter a must Circuit state prior conflicted with a Sixth tioned that Glenn, Winship.” law); way out 635 its “manipulate pretation Michigan 1215; see 240, Jones, 119 S.Ct. intervening Ohio U.S. (deferring to 526 F.2d at 1188 11, 95 at 691 n. 421 Mullaney, illustrated U.S. also Supreme decision (cautioning that state-court 1881 interpretation S.Ct. district court’s re-exam can be law incorrect), of state defy interpretation it would Ohio had been law to be an obvious “appears re ined when habeas framework fundamental fed- of a evade consideration subterfuge to precedent intervening state apply view
305
issue”) (citation omitted).
eral
Applying
post
the ex
clause would be. Al-
facto
the fundamentally
conception
new
though
of EED
a decision can render a “disadvan-
in
tage”
outlined
later cases such
as Wellman to
ways,
Collins,
number of
see
497
43, 52,
Gall’s collateral review
U.S. at
2715,
110
would allow the
S.Ct.
the elimina-
tion
Commonwealth to avert
of an
Winship
just
element of a crime is the quin-
tessential
way.
disadvantage that can not be
applied retroactively. See Carmell v. Tex-
Finally, retroactively applying as,
513,
529
1620,
120 S.Ct.
1632-33,
the later Kentucky cases to Gall’s habeas
was foreseeable
in ques
defendant
absence of EED was not an element of
Bouie,
tion. See
passion” challenged provi cases later by the to understand bound introduced EED un- used were later ways language that to the according law changed sion Salisbury, acts Gall of the v. court”); the time States United by the foreseeable itself, (6th Cir.1993)(finding statute Beyond 1369, 1380 committed. F.2d 983 inter- earliest Kentucky Supreme vague Court’s statute to cure inappropriate it statute, its decision of pretations retroac construction new apply and retroactively to cases reading this apply holding). to the prior tively to conduct Cf. the statute shortly after occurred that States, 430 U.S. v. United Marks (and of- Gall’s prior to effect into came (1977)(holding 990, 51 L.Ed.2d 97 S.Ct. acknowledgment explicit fense), its and obscenity statute a federal that because directly overrul- cases were later that decision sweeping, Court vague and this view. cases, support all prior ing on First standards relaxing constitutional appli- retroactive that the also clear It is obscenity could of protection Amendment substantially those cases of cation retroactively). applied be not an removing Gall, by both disadvantage by imposed sum, to constrictions making murder, due by and element underlying purpose substantially law, the Kentucky EED showing burden limi- process review, as due as well difficult. habeas more Bouie, Mullaney and articulated tations alternative, rea could one In the apply invitation the dissent’s we decline was suffi statute face that the son that over- of EED conceptions and cases time of Gall’s at the that ciently unclear the Gall governing premises critical ruled as interpreted either crime, it could attack of collateral to Gall’s I decision ele EED as absence establishing adhere, we Rather, as will we decision. believed), initially (as courts the state ment Court’s Kentucky Supreme must, (as of evidence or matter a defense or as the dra- preceded EED conception believed, dis as the and the courts later marked Wellman changes matic believes). awith When faced now sent I the Gall McClellan, conception that a facet as criti ambiguity considerable well as appeal as to Gall’s applied court crime, a of a element potential as a cal after before both that occurred crimes a statute void that such may rule this case.19 crime in circumstances, or, in certain vagueness to that statute clarifying gloss may add itBut would prospectively. apply it Insanity Sufficiency of Evidence C. apply process due violate again once pro his due argues next retro precision unforeseen added the evi because were violated rights cess v. New Lanzetta generally actively. See was insane. that he clearly showed dence 456-57, Jersey, 306 U.S. bring not Gall can hold that we Because the New (1939)(stating that L.Ed. 888 review, not we do habeas argument on applied improperly Supreme Court Jersey its merits.20 reach statute vague aof interpretation its opinion misinterprets our I 20. dissent in Gall argues the decision Gall also crime Columbia, when the was insane holding "Gall Bouie violated (1964) do ago." We in fact years retroac- L.Ed.2d committed against legal standards tively applying new this issue. address *39 that the deci- we have found Because him. contravening process due violated sion Bouie address Gall’s Mullaney, we need not argument.
307
A
prisoner
state
is entitled to sanity is
required
a
element of murder.
§
relief under 28
U.S.C.
if he is The statute
places
also
the burden
prov
of
held “in
custody
violation of the Consti
ing legal insanity squarely on a defen
tution or laws or treaties of the United
dant’s shoulders.
Ky.Rev.Stat.
See
Ann.
A challenge
States.”
to a conviction must
§ 500.070 (placing burden
proof
of
onto
therefore do
pose
question
more than
of defendants whenever the
provides
statute
law,
state
for such a challenge alleges no that the
may prove
defendant
the element
deprivation of
rights
federal
and does not of a case “in exculpation of
conduct”);
merit habeas relief.
Isaac,
Engle
See
v.
Ky.Rev.Stat.
§Ann.
504.020 (stating that a
107, 119,
456 U.S.
102 S.Ct.
71 defendant “may prove [legal insanity] in
(1982);
L.Ed.2d 788
see also Estelle v.
exculpation
conduct”).21
of criminal
Con
McGuire,
62, 67-68,
sistent with
statute,
Kentucky courts
(1991) (“[I]t
ment juror can if the ‘It is sufficient .... volved review. habeas subject not it is and opinion or impression his lay aside Juror Sitting a “Tainted” D. the evidence on based a verdict render ” 799-800, 95 Id. in court.’ presented reject in argues that next Gall Dowd, 366 v. Irvin (quoting 2031 S.Ct. juror of one cause challenge for ing his 1639, 751 L.Ed.2d 723, 6 717, 81 S.Ct. U.S. right violated (“Barton”), court the trial if seated (1961)). properly not juror is A the Sixth under impartial hostility to dire, such he exhibits at voir of question The Amendments. Fourteenth a partiali suggest “as to award defendant fair and has seated court a trial whether 800, Id. at aside.” be laid could not ty that one, involving an a factual jury is impartial Court Murphy The 2031. v. 95 S.Ct. Patton credibility. See assessment factors different 2885, outlined have 1038, this Court 104 Yount, S.Ct. a determina making such review, weighed be (1984). On habeas 847 L.Ed.2d 81 informa nature of the tion, including: the fair there is inquires “whether court this knew; probative how juror courts’ tion state for the record in the support guilt; to a defendant’s was as information jurors [] that conclusion that infor they learned how v. when and Id.; States see United impartial.” estimation Cir.1984). mation; juror’s own (6th Smith, 1094 F.2d 748 express any knowledge; of that relevance in the support was fair there find that We juror; wheth by a partiality indications decision. trial court’s for the record commu in the atmosphere er the broader “sufficiently inflam nity or courtroom 2031; and the 802, 95 S.Ct. matory,” id. at recognizes Court Supreme The neutraliz court in by the trial taken steps apply that standards two substantive id.; Haney, 642 See information. ing this on relies primarily Gall juror challenges. jurors were (finding F.2d 1059-60 v. in Marshall announced the standard McKeen, F.2d 605 Goins v. impartial); States, U.S. United Cir.1979) (6th (concluding that 947, 952-54 (1959), in which 3 L.Ed.2d on article newspaper to a jurors’ exposure for prejudice presumed Supreme the trial of trial rendered day the second criminal histo prior learn of jurors who unfair). fundamentally as this But through news sources. ries Rose, F.2d v. Haney Court stated factors, we believe these Analyzing (6th Cir.1981), decision court’s the trial fairly supports the record the su on expressly based “was Marshall impartial. that Barton conclusion Court” Supreme power pervisory he at voir dire acknowledged Barton courts, “constitu was not over federal alleged crime and his had read about that is The standard tionally compelled.” at 206-07. Kentucky Post. J.A. in the at petitioner required when habeas that he article, stated Barton From that more conviction is tacking a state Hillsboro; that Gall was from knew Gall pre courts will “[f]ederal demanding; pre- offenses similar “been accused of had magni of constitutional unfairness sume upset I was somewhat viously^] that egre particularly absence tude in the were Policemen that the State disturbed Id. gious circumstances.” it could point in this to the involved life;” Gall had and that another have cost decision Court’s Supreme He at 207-08. J.A. of his own. Florida, children Murphy Gall was read had (1975), also stated outlined 2031, 44 L.Ed.2d J.A. past offenses. one of his parole Despite inquiry. of this the contours knowledge, Barton Despite at 209. impartiality, of fairness requirement
309
repeatedly assured defense counsel that
certainly
assurances are
one of the factors
this information did not affect
feelings
his
a trial judge can
consider
determining
toward Gall or how he
approach
would
juror
that
whether
lay
“can
aside his im-
(“No,
trial.
at
See J.A.
207-08
I don’t pression
opinion.” Irvin,
or
366 U.S. at
think so once the
pre-
actual evidence is
723,
1639;
81
Smith,
see
748 F.2d at
I
sented.
don’t know
much
how
stock can
1094-95 (relying
part
juror’s
reassur-
put
in the Kentucky Post as
as
far
ances). Finally,
Goins,
unlike in
the trial
forming
opinion.”);
an
at
(stating
J.A.
209
judge took “appropriate steps” to assure
prior
that his
knowledge would not make Barton would be impartial, instructing him
him more inclined to
guilty).
find Gall
not to discuss what he had learned with
Barton likewise
judge
assured
jurors.
other
ability to look at the evidence neutrally
The factor that most
supports
strongly
lay
what
aside
he had read or heard.
Gall’s argument
is that Barton knew of
Finally, after overruling Gall’s motion to
parole status,
adding a potentially
Barton,
strike
the judge instructed him
inflammatory piece of information about
that
if he were
juror,
as a
selected
the crime. We do not believe this factor
could not discuss what he had learned
alone outweighed the other indicia of Bar-
prior to
with
jury.
trial
sum,
ton’s impartiality.
is ample
there
Given
colloquy,
this
this case is analo-
support in the
record
the trial court’s
gous to Murphy
Haney,
jurors
where
conclusion that Barton could sit on the
were not sufficiently
partial
warrant
jury.
Overall,
reversal.
the voir dire of Barton
“indicates no such hostility” toward Gall
Impartial
E.
Jury
“as to suggest a partiality that
not
could
be laid aside.”
800,
Murphy,
U.S. at
Gall
argues
further
that other factors
First,
plea offense, (1966) lesser included L.Ed.2d 600 well as (involving a “carnival trial,” defendant’s involvement another atmosphere at aggra- with intense media case). vated murder While dispositive, coverage presence courtroom, see, e.g., Murphy, 95 S.Ct. and a lack of adequate jury instructions); 2031; Goins, 605 F.2d such juror Texas, Estes v. process due that other concluded have (1965) “circus We (involving a L.Ed.2d trial, and also in this in the occurred sitting violations press atmosphere,” *42 evi- Louisiana, of extraneous introduction court); v. Rideau that
bar worked 1417, 663 jury’s 10 L.Ed.2d deliberations into the S.Ct. dence 83 373 U.S. tele- of phase penalty when into the (1963) prejudice prejudice actual (presuming confession make the diffi- defendant’s not of We need interview vised Gall’s trial. aired); Irvin, widely to ought had been prison of whether we from cult determination (involving 725-28, S.Ct. 1639 81 at 366 U.S. as well. prejudice presume in the me- accounts prejudicial extensive eight and the venire of
dia,
90%
and where
Misconduct
Prosecutorial
F.
the defendant
believed
jurors
twelve
of
trial). This Court
prosecutorial
of
to
a host
prior
argues that
guilty
Gall
courts should
consti-
clarified that
violated his
DeLisle
tactics
and
statements
where
in those cases
of
prejudice
alleged
presume
instances
rights.
tutional
“
communi-
in the
atmosphere
‘general
the violation of Gall’s
include:
misconduct
sufficiently inflammato-
ty or
his
by emphasizing
courtroom
silent
to
right
remain
”
Murphy,
(quoting
382
F.3d at
ry.’
161
of evi-
misrepresentation
testify;
failure to
2031). Overall,
95
421
at
U.S.
and actions
dence;
statements
prejudicial
lacking
“entirely
must
be
such
trial
of sani-
a fair determination
Gall
depriving
a de-
sobriety to which
solemnity and
ap-
a host of
actions
other
ty;22
that sub-
system
ain
entitled
fendant is
of
prejudices
passions
to the
pealed
and re-
fairness
any notion
scribes to
impro-
these
argues
jury.
Gall
421
Murphy,
a mob.”
jects
verdict
funda-
proceeding
rendered
prieties
2031.
95 S.Ct.
mentally unfair.
extraordinary
to those
In contrast
not
did
Although Gall’s counsel
pre
must
a court
where
circumstances
trial,
are
we
object
these infractions
degree
with a lower
prejudice, trials
sume
A
hearing these claims.
not barred
deal
good
with a
those
prejudice
—even
proce
to a state
only adheres
habeas
showing
publicity require
pretrial
—
render
state court
the last
bar when
dural
[the]
circumstances
totality of
that “in the
has
judgment on the matter
ing
a reasoned
fundamentally fair.” Id.
not
trial was
its
expressly”
“clearly and
stated
has on several
years,
recent
bar.
procedural
to find that a
rests on
Murphy
judgment
occasions relied
(6th
Million,
fair to
sufficiently
201 F.3d
Boyle v.
atmosphere was
trial
Cir.2000)
Thompson,
prejudice.
actual
v.
showing
(quoting
require a
Coleman
2546, 115
despite
722, 735,
factual
some
holdings
These
came
case,
Ir
Sheppard
(1991)).
like
In this
to cases
similarities
L.Ed.2d 640
367-68;
Nevers,
See,
F.3d at
e.g.,
vin.
addressed
Kentucky Supreme Court
Rivers,
F.3d
385-88
DeLisle v.
prosecutorial
allegations of
rejected Gall’s
Marshall,
(6th
Cir.1998);
v.
See, e.g., Gall
on their merits.
misconduct
Brofford
(6th Cir.1985);
Jenkins
(“To
F.2d
848-52
mercifully
I,
at 110
607 S.W.2d
(6th
Bordenkircher,
Cir.
F.2d
any
brief,
in this record
do not find
we
1979).
attorney that
prosecuting
conduct
inconsistent
been
be said
have
could
all, of
many, but not
This
exhibits
case
trial.”). This
a fair
right
with un-
pervaded
so
aspects of trials
from review.
barred
issue is therefore
prejudice.
presume
fairness that courts
of Dr.
inappropriate cross-examination
failing
Examples
include:
Gall mentions
'
closing argument; and
improper
Noelker and
sanity exam on
to conduct
ask Dr. Chutkow
go
if
free
jurors
Gall would
informing the
informa-
provide
with the
full
Gall and
him
determination;
insanity.
guilty for reason
found not
tion he needed to
such
make
1. Fifth Amendment Claim
points
to two occasions where the
Commonwealth improperly referred to his
A defendant’s Fifth Amend
First,
silence at trial.
an officer testified
right against
ment
pro
self-incrimination
that Gall “wouldn’t talk” after making sev-
types
tects him from several
of govern
eral statements after his initial arrest.
First,
ment misdeeds.
once a defendant
Second,
J.A. at 63.
the Commonwealth
right
being
exercises his
to silence after
indirectly referred to Gall’s silence when it
rights,
post-arrest
read Miranda
stated
jury:
Gall “sits in this court-
silence cannot be used to his detriment at
room you
have heard the testimony and
*43
Ohio,
610,
Doyle
618,
trial. See
v.
426 U.S.
he has lied
parents
to his
in every instance
2240,
(1976);
96 S.Ct.
whether the error amounts to a constitu
analysis
Harmless error
applies to tional deprivation, the court must view the
Fifth Amendment violations.
totality
This “ex
Hayton
See
circumstances.
(6th
tremely
Cir.1977).
narrow” standard requires
rever
Egeler,
v.
555 F.2d
sal
when the state cannot “demon
must first determine if the
We
comments
beyond
strate
a reasonable doubt that
improper.
Boyle,
the were
See
201 F.3d at
any
error did not
way
contribute
717. We then must determine if the com
conviction of the defendant.”
sufficiently flagrant
Eberhardt v. ments were
to warrant
Bordenkircher,
(6th
1)
605 F.2d
by looking
Cir.
reversal
to four factors:
1979).
likelihood that the remarks would mislead
assess-
2)
independent
neutral
accused;
than a
other
prejudice
jury or
proof’).
of the record
ment
ex-
were isolated
the remarks
whether
de-
his
3)
throughout
remarks were
tensive;
Despite
prohibition,
this
whether
prosecutor improper-
accidentally presented
closing argument
liberately or
cru-
about
belief
personal
his
against
ly expressed
evidence
4)
other
whether
jury;
instance,
jury. For
id.;
before
cial matters
See
was substantial.
the defendant
closing
declared
Carroll,
prosecutor
26 F.3d
v.
United States
just
isn’t
[Gall]
“not
convinced
[ ]
Cir.1994).
(6th
Because defense
1385-87
at 1591.
mean, shrewd, criminal.” J.A.
any
almost
object to
did not
counsel
when
belief
personal
again voiced
He
analysis is
made, plain error
statements
you
probably
can
“I think
he stated
709;
F.3d at
Blandford, 33
See
required.
intelligence
the results
skeptical of’
Morrow,
F.2d
States
United
He
at 1584.
J.A.
tests.
psychiatric
(1991).
again when he
tactic once
echoed
schizophrenia
explanation
if Gall’s
asked
a.
“powers of reason-
jury’s
“stretched”
*44
at
mine.” J.A.
certainly does
ing?
It
the Common
agree that
We
his
clearly expressed
Similarly, he
laced with
was
closing argument
wealth’s
credibility
key
the
belief about
personal
First,
statements.
improper, prejudicial
Noelker,
who
the doctor
Dr.
witnesses. Of
their
appeals
cannot make
prosecutors
Gall,
prose-
the
thoroughly examined
had
See
opinions.
beliefs and
personal
own
him
“I have
for
that
known
stated
cutor
(stating that
Caldwell,
at
F.3d
737
181
man].”
know he is
fine
and I
along
[a
time
personal
“express
cannot
prosecutor
“awas
that Dr. Noelker
He then declared
of the defen
concerning
guilt
the
opinion
“slant[ ]
compassion” whose beliefs
man of
witnesses”);
trial
credibility of
or the
dant
his con-
gives
opinions
[and]
his
which
the
Carroll,
(noting
at
F.3d
1387-88
26
at 1583.
draws.”
J.A.
that he
clusions
conveying
government
the
impropriety
ishe
man I
who believes
“He is a
believe
regarding
belief
personal
“a conviction of
his
Eugene and
in ... between
standing
veracity”).
frown
Courts
the witness’s
weighs
destiny and I believe
ultimate
two reasons:
upon such statements
”
1583. He
him....
J.A. at
heavily on
convey
impres-
can
the
such comments
of Dr.
thought” aspects
“I
also stated
the
presented
sion that evidence
Toppen’s testimony
and Dr.
Noelker’s
prosecutor, sup-
known to
jury, but
the
unusual, really unique.” J.A.
“really
were
the defendant
charges against
ports the
prosecutor
the
summed
Finally,
at 1581.
jeopardize the defendant’s
and can thus
psychiatric wit-
of Gall’s
assessment
up his
solely on the basis
tried
right to be
by stating:
and evidence
nesses
and
jury;
presented
the evidence
guys.
these
don’t have
believe
[Y]ou
with it
opinion carries
prosecutor’s
of? It
it reminds me
know what
You
and
Government
imprimatur of the
men
three blind
who
me
reminds
jury to trust the Govern-
may
induce
asked
they
taken out
were
were
than its own
judgment
rather
ment’s
grabbed
One
identify
elephant.
view of
evidence.
tail,
grabbed
one
trunk,
grabbed the
one
imagine
bizarre
leg
you
can
Young,
v.
United States
on how an
they got back
opinions which
(1985);
also
L.Ed.2d 1
see
elephant looked.
Caldwell,
(stating
at 737
F.3d
at 1589.23
J.A.
legitimate
“the
appeals
personal
exceed
Next,
mis
the Commonwealth
improperly inviting the
advocate’s role
and testimo-
evidence
characterized crucial
on a basis
jurors to convict the defendants
egregious
were harmless
comments
reasoning
these
accept
the dissent’s
23. We cannot
EED
ny pertaining
showing
to Gall’s
not otherwise rebutted.
It was Dr. Chut-
kow,
insanity.
witness,
Misrepresenting
facts
evi-
state’s own
who stated
possible
can amount to
be-
dence
substantial error
Gall was in a
“state of exacerbation”
doing
“may profoundly impress
morning
cause
so
killing. Finally,
in cross-examining
may
Dr.
jury
significant impact
have a
Noelker, the prosecution on several occa-
jury’s
Donnelly,
deliberations.”
suggested
sions
that Dr. Chutkow disa-
particu-
U.S.
S.Ct. 1868. This is
greed with Dr. Noelker’s
conclusion that
larly
prosecutorial
true
the case of
mis-
insane,
legally
1032-34,
Gall was
J.A. at
representation
jury generally
because a
when Dr.
clearly
Chutkow
stated both on
has confidence that the prosecuting attor-
direct examination and cross-examination
ney
faithfully observing
obligation
is
that he could not
Dr.
challenge
Noelker’s
representative
sovereignty,
of a
whose
conclusions because he did not have the
interest “in a criminal prosecution is not
wealth of data that Dr. Noelker had. J.A.
case,
justice
that it shall win a
but that
will
350-51.
States,
be done.”
Berger
United
78, 88,
based on his jury insanity evidence of serious- medical/scientific expert's testimony. should doubt that In oth- ly insanity simply because an defense was words, prosecutor only er not offered his desperation by guilty act of a defendant. As opinion improperly, opinion he bolstered that summarized, folks, he "When it is that bad it by explicitly referring knowledge to his short, all over.” J.A. at 1579-80. witness's character and motivations. This is calling jury expertise on the to heed his precisely Young what Court warned government prosecutor against simply as a prosecutor’s when it cautioned that a dis- expressing personal suggests insanity his beliefs to the miss defense out of hand. to the Russians waiting for yard back The insani- jury. confuse helplessly folks, is all it it is bad come. When has question policy ais defense ty review I to Now want over.... govern- courts, legislatures, plagued the skull of within cranial defense unnecessary to It is decades. ments for Defendant.... jjuries. [ similarly plague later reminded He 1579-80. J.A. at (Fla. State, 528 So.2d v. Garron the de- into be “hoodwinked to Wallace, 1988). also, People v. e.g., See Further, at 1592. insanity,” J.A. fense (1987) 87, 91 N.W.2d Mich.App. type with the peppered were comments prose a error because (finding reversible ignorance” to “know-nothing appeals insanity defense against argued cutor right to of their defendants deprive 475, 507 Percy, 146 v. Vt. State generally); defense. insanity of their fair consideration (1986) (finding improper 955, A.2d mocked instance, the Commonwealth For comments prosecutor’s prejudicial Tree, “House, Per- use of a Dr. Noelker’s a “mere constituted insanity defense insanity opposed Test” to show son Indeed, the justice”). escape attempt “smok- of a evidence the Commonwealth’s stated Kentucky Supreme asked: at 1591-92. He gun.” J.A. ing trials trial the Gall before months “[ijsn’t into a time to go convenient that insani principle “must conform And, at 1584. J.A. [schizophrenic state]?” must be defense, and the defendant ty is a analo- analogy, he elephant similar with the in accordance prove allowed description of Dr. Noelker’s gized Jewell evidence.” rules of accepted state Gall’s mental evolution of long-term Commonwealth, (Ky. 549 S.W.2d my “If wife were simple hypothetical: ato grounds other 1977), overruled on ago and eight years she pregnant Commonwealth, 623 S.W.2d Payne v. now, mean does that month pregnant one prose- upon also frown (Ky.1981). Courts is what That pregnant March? she was that, in an to rebut effort tactics cutorial you.” at 1585. telling J.A. Dr. Noelker is of insani evidentiary showing defendant’s mini- time, prosecutor theAt same appeals “know-nothing make ty, simply testimony Drs. Noelker mized the *46 testimony present rather than ignorance” calm appear could both Toppen that Gall showing in an the countering defendant’s even an observer” and sane “untrained way. States rigorous United evidentiary that he revealed and tests if examinations (D.C.Cir. Brawner, 1004 471 F.2d v. “He mentally ill: severely insane or was 1972) prosecutorial (criticizing improper as folks, Now sane, he isn’t. but may look witness’s expert an disparaging comments folks, look ‘you can’t telling us they are “just blots disease showing mental as tests J.A. at 1581. yourself.’” judge and ink”). that because jury argued to the He then used Commonwealth closing, In its trial, he must intelligent at appeared Rath- tactics. just highly prejudicial such April sane, must have been sane and insanity evidence attacking er than Gall’s simi- was of these statements 4. The tone that Gall to counter-evidence pointing prosecu- approach rhetorical lar to the sane, simply as- the Commonwealth Dr. Noelker cross-examining tor took in As he very of the defense. saulted use in which he assaulted Toppen, and Dr. issue, prosecutor began addressing the where discipline an inexact as psychology insanity defense to other compared doctors, subjective standards applying defenses, he em- defenses. Other possible oppo- polar reach can “within themselves” “facts,” insanity an but require phasized, in- examining the same site conclusions in the skull of 1221-23, all 984-88, “is contained belit- defense and dividual, at J.A. J.A. at 1579. defendant.” had used Dr. Noelker tled the tests (“Now here is 1024 J.A. at Gall. diagnosing That is the last of defense. That is line jury ought I think here that a little one your lying an Rifle and taking like Ml sum, psycho- facing to see. This is one of those little Gall’s considerable tests.”). EED, insanity evidence of counsel for logical the Commonwealth chose not to rebut that Finally, prosecution’s most Instead, directly.24 evidence expressed he egregious warning misconduct personal his belief as to the weakness and if go guilty Gall would free found not for partiality expert of Gall’s witnesses’ testi insanity. During closing, reason of mony, and he mischaracterized crucial as prosecution stated: “Now folks are we pects testimony. He disparaged going society by to turn loose on [Gall] very insanity use of an defense as the insanity[?]” reason of J.A. 1588-89. Rifle”; “last line of “Ml defense” later, repeated: he Seconds Gall “cannot he psychological belittled medical and justice defense; tools escape by retreating support the ends of used to such a equated the doctors’ testifying about safety within the of his skull!” own J.A. condition to three blind men “asked point, At another the Common to identify elephant” “you can imagine jury if wealth stated were to — opinions they the bizarre which got back.” Toppen’s testimony, believe Dr. “then turn J.A. at 1589. pleaded He then with the him loose.” J.A. at 1581. These state jury not to through let Gall loose the in ments contravened several related rules of sanity defense. In addition to having no First, they again conduct. once detracted doubt that these improper, tactics were we insanity from a fair consideration of Gall’s they easily satisfy find that the criteria of by introducing prospect defense “flagrancy” laid in Boyle. They clearly out inevitably such determination would lead prejudiced misled the Gall’s de Ly to Gall’s release. See v. Guidroz insanity. fense of The comments were not (5th naugh, F.2d 837-38 Cir. isolated, accidental or permeating the 1988); Jackson, United States v. 542 F.2d closing argument Commonwealth’s as well (7th Cir.1976); v. United States portions as other of the trial. And they (9th Birrell, 421 F.2d 666-67 Cir. involved the central issue of the case. 1970); States, Evalt v. United F.2d Moreover, explained infra, the total (9th Cir.1966); United States strength of the evidence rebutting Gall’s Lane, (N.D.Ill.1989). F.Supp. best, insanity defense was weak at not to Second, the comments violated the cardi improperly presented. mention After a prosecutor nal rule that a cannot make record, close review of the we find that the pas statements “calculated to incite the Commonwealth’s misconduct was suffi prejudices jurors.” sions and Unit ciently egregious to render trial the entire *47 Solivan, ed States v. 937 F.2d 1151 fundamentally unfair. (6th Cir.1991); Seabold, see Stumbo v. 704 Finally, respectfully disagree we (6th Cir.1983) F.2d (decrying 912 prosecu- the dissent’s conclusion that this prosecutorial “preju misconduct which torial is acceptable misconduct when jury”). Eliciting and the dice[s] inflame[s] backdrop viewed “against the of the nature image turning society the Gall loose on insanity defense this case.” The by finding him insane perhaps para is the that, the cir- explains given strong dissent digm example impropriety of such tying cumstantial evidence Gall to the —call ing jurors’ on emotions and fears rather crime, history as well as Gall’s clear than “the evidence and law of the case.” illness, insanity mental the defense was Gainey, United States v. 111 F.3d It the central issue of the case. is there- (11th Cir.1997). understandable, explains, 836 fore the dissent Indeed, infra, competent as discussed no exam- Gall to see if he was to one examined prose- perhaps explains ined mental Gall’s condition on behalf of the stand trial. This improper Commonwealth to determine if he sane to resort to tactics in was cutor’s need day only attacking insanity crime. Dr. Chutkow Gall’s defense. if the 11.42 motion in his RCr brought his not bring out would prosecutor that “the and could “unknown involved were errors insan- and direct artillery heaviest by the party known not been that have agree doubt no defense.” We ity and diligence trial, of reasonable and exercise to this central sanity was Gall’s to presented have been otherwise dissent, time to expect we, no less than Commonwealth, 648 v. Gross the court.” “heavy artil- bring out prosecutor to Additionally, a (Ky.1983). S.W.2d agree alsoWe defense. lery” against that “upon filed can motion a new 11.42 that there is persuading known, or reason- was not which ground and mental disease difference between the first mo- at the time ably But discoverable “legitimate goal.” insanity was legal v. Gilliam Common- made.” law, tion was the arse- system of is a ours because (Ky.1983). wealth, S.W.2d to achieve prosecutor to a nal available these ex- meets argues here he argu- Gall limited to goal is legitimate pertaining error ceptions because evi- introduced properly ments rooted in not become deposition did videotape testimony rather than words and dence prepa- Dr. testified until Chutkow clear passions, to inflame designed and tactics habeas hear- beliefs, the district court’s ration for prosecutorial air unsubstantiated however, We, with the Com- agree ing. legally legitimacy of a downplay and argument that this is Here, unfortunately, monwealth dubious defense. recognized and awareness presence active given had expert who having present failed to error Because the the trial. sanity, throughout his Gall assess actually examined was rea- certainly likely known in- was barrage against Gall’s prosecutor’s discoverable, Gall and because sonably largely “foul comprised sanity defense Clause raise his Confrontation failed to cognizable do with having blows” little in his appeal direct on either his take at all claim If we are to facts or evidence. motion, procedur- was claim Kentucky legislature’s deci- RCr 11.42 seriously the ally defaulted. insanity as a defense provide sion prose- murder, countenance the we can not can over petitioner habeas A methods to over- highly improper cutor’s in two instances. default procedural come in this case. come defense First, cause for can “demonstrate re prejudice default actual procedural Amendment Confrontation G. Sixth er alleged from the constitutional sulting Rights (6th Zent, F.3d ror.” Rust he was argues denied Cir.1994). can Alternatively, a defendant right to confront Sixth Amendment the claim will failure to consider show that he was not him because against witnesses jus miscarriage in a fundamental result Toppen of Dr. depositions at the present Coleman, 750, 111 tice. See Chutkow, Dr. Chut- Dr. and because Rust, (stating 2546; at 162 F.3d by video presented testimony kow’s was prejudice showing cause showing no that he tape when there if makes an “extraordi required defendant constitutionally unavailable. viola whereby a constitutional nary case *48 that failed to Gall Commonwealth counters of one who in the conviction tion resulted courts, in the state raise that claim innocent”). must examine actually We procedurally it defaulted. that is therefore excep if of these to see either Gall’s claim tions is met. Kentucky, party bring a In can pursuant to RCr
one collateral attack
1.
11.42;
direct
brought
on the
all claims
of Dr.
the use
We find that
challenge are
or in
collateral
appeal
that
did in
videotaped deposition
However,
RCr Chutkow’s
under
generally defaulted.
Clause.
60.02,
the Confrontation
challenge deed violate
a
can raise a
defendant
law).
requirements of
At
implicate
points
facts at trial
this
other
particular, the
trial,
in
there is a
holding
directly
that unless
Commonwealth
Court’s
unavailability, the
asserted that Dr.
had
showing
disagreed
of constitutional
Chutkow
and with Dr.
enjoys
right
to confront
Noelker’s conclusion that
defendant
Indeed,
jury
legally
“before the
was
insane. J.A. at
examine crucial witnesses
1032.
Sowders,
court.”
Commonwealth ended its re-cross-ex-
open
Stoner
(6th Cir.1993).25
by
Just as
amination of Dr. Noelker
referring
F.2d
Stoner,
here Dr.
testimony
constitutional error occurred
Chutkow’s
with dramatic
flair;
Dr.
testified
Dr.
because
Chutkow
video
when
Noelker stated on redirect
open
any
any
than in
that
tape
competent
profes-
rather
without
mental health
by the
that he
sional who had
showing
Commonwealth
reviewed his data would
at
constitutionally
was
unavailable. See id.
reach the same conclusions on Gall’s sani-
prosecution provided
ty,
212. The
no reason
prosecution
rose to
a single
ask
absence,
Dr.
and at oral
for
Chutkow’s
question: “Except Dr. Chutkow?” J.A. at
argument
appeal,
stated
Similarly,
1035.
pleadings
its
before the
it could not recall the reason Dr. Chutkow
court,
district
pointed
the Commonwealth
testimony.
did not deliver live
repeatedly
testimony
to Dr. Chutkow’s
support
argument
presented
its
had
Moreover,
the violation did not
evidence
Gall was sane.
at
J.A.
437-
error;
simply surpass harmless
it also re
(quoting
excerpts
Attorney
Gener-
prejudice
sulted in actual
to Gall because it
al’s memorandum of law that “Chutkow’s
to his actual and
dis
“worked
substantial
testimony
beyond
went far
merely ad-
advantage,
infecting his entire trial with
dressing competency,” “Chutkow testified
Rust,
error of constitutional dimensions.”
why
as to
he did not believe Gall was
omitted).
(citation
at
F.3d
As
insane,” and “Chutkow did not think Gall
Stoner,
guilty
is no doubt that the
“[t]here
crime”).
was insane before or after the
...
substantially
verdict
influenced
Court,
inAnd
its brief filed with this
testimony.” Id. at
videotape]
[this
213-14.
Dr.
Commonwealth dubs
Chutkow its “in-
hinged
This case
on Dr.
testi
Chutkow’s
sanity expert rebuttal witness.” Common-
mony.
jury
Dr. Noelker had informed the
at
wealth’s Br.
24.
in
legally
of his conclusion that Gall was
sane, and,
Dr.
although vague,
Chutkow’s
But while Dr. Chutkow’s rebuttal was
testimony provided
standing
the Commonwealth’s
the thin
acquittal
reed
between
sentence,
rebutting
showing
insanity
central evidence
of based on
and a death
he
insanity.
(stating
in fact
J.A.
Gall had not
conducted
examination
Furthermore,
comply
sanity.26
could
times
his behavior to the
of Gall’s
as ex-
Reversing
a conviction where a
witness is not confronted in the
witness’s
courtroom
testimony
unnecessarily presented
living per-
immediacy
situation. The
of a
through
videotaped deposition
rather
son is lost.
testimony,
than live
this Court in Stoner em-
Id.
phasized
deposition
is a weak
"the
substi-
deposition
26. Dr. Chutkow’s habeas
and a
testimony,
live
tute for
substitute that the
prosecution
series of letters between the
Sixth Amendment does not countenance on a
Drs. Noelker and Chutkow illustrate how
Despite
possi-
routine basis." Id. at 213.
events unfolded such that Dr. Chutkow was
taped depositions,
ble efficiencies
"[t]he
the Commonwealth's sole witness as to Gall’s
allow us to
Constitution does not
so water
though
mental state even
he had never actual-
explicit requirement
down the
of live testimo-
4, 1978,
ly
sanity.
May
examined Gall’s
On
cases,”
ny in criminal
321.
Court, relying
I
case: the Gall
to be the
2.
testimony,
rebuttal
con-
on Dr. Chutkow’s
Nonetheless,
agree
we cannot
that
sharp
conflict in
cluded that “there was
Gall has shown cause for his failure to
as to whether Gall was insane
the evidence
previously.
again,
raise the claim
Once
112;
all,”
at
the district
at
607 S.W.2d
and
argues that
Gall
“cause” exists because his
Dr.
court below concluded that
Chutkow
trial
him
they
counsel failed
inform
that
opinions”
“some
on Gall’s
proffered
had
Moreover,
taking
deposition,
were
Dr. Chutkow’s
and
prose-
at
sanity.
J.A.
43.
actively encouraged
interpreta-
only
cution
Gall
his counsel
became
that Dr.
had
aware of the error
Dr.
by suggesting
tion
Chutkow
when
Chutkow was
Dr.
conclusion
disagreed
deposed
Noelker’s
for
habeas proceeding
below.
instance,
For
on
was insane.
He also states that cause exists due to
cross-examination,
prosecution pep-
ineffective assistance of counsel. Both ar
about
pered
questions
Dr. Noelker with
First,
guments
unavailing.
are
orig
can
possibility
psychiatrists
that two
ignorance
inal
that Dr.
was
Chutkow
de
condition,
person’s
mental
disagree over
posed
testimony provides
lieu of direct
984-86,
J.A. at
and closed the cross-exami-
support
no
for his assertion that he later
Dr.
by emphasizing
nation
Noelker’s
fact,
lacked awareness of that
both at trial
“in
that Gall was insane was
conclusion
(when
tape
played
was
your
Dr. Chutkow.”
dispute with
brother
him),
in front
in preparation
for his
(re-
also
at 1034
J.A. at 1032. See
J.A.
Second,
appeal.
state collateral
his claim
Dr.
final
sponding to
Noelker’s
statement
of counsel error as “cause” is insufficient
any competent
on redirect —that
mental
because he has not shown that his counsel
professional
health
who had reviewed
constitutionally
was
ineffective under
conclu-
data he had would reach the same
Washington,
Strickland
U.S.
“Except
sanity by asking,
sions on Gall’s
—
(1984),
Dr. Chutkow
Dr.
critical role: “it
phasized
Chutkow’s
There remains
the alternative
absolutely
you
essential
we use
[is]
route that default can be excused because
trial to
during
a witness
the course of this
recognize the claim would
our failure to
anticipated testimo-
[Dr. Noelker’s]
rebut
miscarriage of
result
in a “fundamental
ny”
J.A. at 1546.
that Gall
insane.
Coleman,
501 U.S. at
justice.” See
trial,
prosecution
At
used
words to
high
2546. This is a
burden for
undermine Dr. Noelker. And before
meet,
occurring
Court,
petitioner
habeas
respectively,
district court and this
“extraordinary
Schlup,
case.”
argued that Dr. Chut-
the Commonwealth
sane,
Specifically, a
U.S. at
trial,
doctors who examined
while the two
determining his
purpose
for the
Gall
challenges aspects
penal-
Gall also
the crime both con-
sanity
day
on the
ty
of the trial.
phase
legally insane.
It is
cluded that he was
also clear that
the Confrontation Clause
Penalty
A.
Phase Instructions
misper-
Dr.
sparked
violation
Chutkow’s
in-
argues
penalty phase
that the
Gall
trial,
ceptions
allowing
role in the
about his
his
given
structions
at his trial violated
testimony
competent
his
Gall
rights
Eighth and Fourteenth Amendment
misleadingly
sup-
used to
stand trial to be
Ohio,
defined
Lockett v.
as
port
argument
the Commonwealth’s
(1978).27
unanimously.
*52
a
jurors
to find that
that
needed
struction
disagree
We
with the Common
by
preponder-
mitigating factor existed
wealth’s contention that Gall defaulted this
the evidence.
ance of
claim.
Commonwealth asserts that
vio-
that these instructions
argues
Gall
because
attack
in
Gall’s collateral
motion
law and the
Kentucky
lated both
Constitu-
Kentucky
the
did not attack
courts
the
jury
prevented
the
tion because
instructions,
penalty phase jury
that attack
mitigating
considering
giving
effect
Kentucky
was waived
Criminal Rule
under
in
of Lockett. The Com-
factors
violation
(KCR) 11.42,
requires
which
the motion to
pointing
first
out
monwealth counters
grounds
holding
state “all
for
the sentence
object
these instruc-
did not
that Gall
Thus,
argues, Wainwright
invalid.”
it
the
trial,
in
appeal
post-
at
them his
tions
prejudice”
“cause and
is required
standard
courts,
Kentucky
appeal
conviction
the
reject
argument.
here. We
through
this claim has been lost
so that
defense,
Teague
default.
It also musters
Although
object
did not
to the in-
Gall
improperly seeking
trial,
that
is
the
arguing
Gall
structions at
the
con-
Commonwealth
constitutional rule. As-
benefit of
“new”
challenge
that he
ap-
cedes
did
them on
arguendo that
this claim is not
suming
Thus,
peal.
up
Br. at
it
See Gov’t
invalid,
also contests it
the Commonwealth
Kentucky Supreme
apply
Court to
on its merits.
procedural
barring
either its
rule
review
case; if
or to address the merits of the
review, errors on
On habeas
clearly
expressly applied
pro-
its
they
unless
instructions are not reviewable
claim,
cedural bar to that
then federal
due
deprive a defendant of constitutional
precluded.
Boyle,
habeas review is
See
Smith,
Long v.
663 F.2d
process. See
Jabe,
716;
201
v.
F.3d at
Couch
951 F.2d
Cir.1981).
(6th
simply
They
23
must not
(6th Cir.1991).
96
But the court
they must “so
infect[]
be erroneous —
procedurally
Gall I did not rule that Gall
resulting
entire trial
conviction
Rather,
defaulted this claim.
it endorsed
process.” Henderson v.
violates due
the merits.28 Because
the instructions on
Kibbe,
145, 154,
1730, 52
97 S.Ct.
whether
it did not even consider
(1977). Meanwhile, if a pris
203
L.Ed.2d
through
fail-
claimed error was waived
defaulted his federal claims
oner has
trial,
object
certainly
it
did not
ure to
independent
pursuant
state court
to an
“
express’
‘clear and
statement of
meet the
rule,
procedural
federal
adequate
state
requires.
procedural bar” that this Court
is barred un
habeas review of the claims
Coe,
(quoting
Harris v.
161 F.3d
satisfy the “cause and
prisoner
less the
can
Reed,
255, 258,
“that failure to
prejudice” test or show
(1989)). The claim is
in a funda
Kibbe
the states or
obligation
a
on
imposes
new
put
To
it differ
Government.
the Federal
if
rule
ently, a
announces
new
case
asserts
The Commonwealth
by precedent
dictated
exist
result was not
Maryland,
in
out Mills v.
that the rule laid
at the
the defendant’s conviction
ing
time
1866,
1860,
100
367, 108 S.Ct.
486 U.S.
301,
at
109 S.Ct.
489 U.S.
became final.”
(1988)
McKoy
in
and echoed
L.Ed.2d 384
determination, a
this
fed
1060. To make
Carolina,
433, 110
494 U.S.
S.Ct.
v. North
date
eral court must first determine the
(1990),
1227,
369
on which
108 L.Ed.2d
be
upon which the defendant’s conviction
relies,
a “new rule”
constitutes
Gall now
Bohlen,
Caspari v.
510
came final. See
Lane,
288,
489
109
Teague v.
U.S.
under
948,
383, 390,
127 L.Ed.2d
114 S.Ct.
U.S.
(1989),
1060, 103
and can
L.Ed.2d 334
S.Ct.
(1994).
survey
legal
It
must then
“the
applied retroactively on
not be
therefore
if a
it then existed” and ask
landscape as
raised,
question
When
habeas review.
court, considering the defendant’s
state
Teague applies is a thresh
as to whether
claim at the time his conviction became
federal habeas case. See
old
in a
issue
final,
compelled by
have “felt
exist
(6th
Burke,
760, 764
83 F.3d
Daniels v.
ing precedent
to conclude that
rule
Cir.1996).
required by the Constitu
seeks was
[he]
Singletary, 520 U.S.
will
the Mills deci-
tion.”
v.
Although we
discuss
Lambrix
518, 527,
1517,
We therefore with the Fifth and alty, is one we dare not risk. Circuits, Eighth which have found that Mills, 383-84, Mills announced a “new 486 at 108 1860. Teag rule” under S.Ct. Lockhart, 676, McKoy, ue. See Miller v. 65 F.3d separate In his concurrence 302, 322, 109 S.Ct. possi- naugh, 492 U.S. that the Kennedy reiterated Justice (1989) (reversing death L.Ed.2d 256 a death can render juror bility that one not jury instructions did because imposition sentence “represent[ ] sentence mitigating jury relevant system permit to consider through capital punishment Lockett, evidence); arbitrary capri- 438 U.S. can be described 453-54, pen- down Ohio death (striking 110 S.Ct. cious.” 494 U.S. J., rea- concurring). For these consideration (Kennedy, alty precluding law for factors). Addressing sons, elaborated mitigating for those further relevant Dixon, v. jury in Williams instruc- allegedly Fourth Circuit unconstitutional (4th Cir.1992), we tions, California, Boyde F.2d 455-56 the Court assuming arguendo that even conclude rule,” (1990) a “new in- jury
that Mills announced
that a
L.Ed.2d 316
stated
to our notions
is so central
new rule
when
violates
struction
Lockett
the sec-
falls within
liberty that it
ordered
likelihood that
there is a reasonable
sum, Teague
Teague exception.
ond
challenged instruc-
jury
applied
has
habeas
granting
us from
not bar
does
consider-
way
prevents
in a
tion
on Mills.
relief based
evi-
constitutionally relevant
ation of
need
Although
dence.
defendant
likely
more
that the
establish
address the mer
We therefore
impermissibly in-
not to have
than
been
argument.
its of
Lockett-Mills
instruction,
capital
sen-
hibited
govern the consti
progeny
Lockett and its
inconsistent
tencing proceeding is not
guide
can
how states
tutional
limits on
Amendment if there is
Eighth
with the
considering the
sentencers’ discretion
such an inhibition.
possibility
*55
may convert
mitigating circumstances
added).
(emphasis
making
Id.
impris
a term of
a
of death into
sentence
determination,
in-
courts should not view
supra,
the essential
onment. As stated
isolation,
a ‘com-
but “with
structions
is that
the sentencer
rule from Lockett
understanding of the instruc-
monsense
considering, as
precluded from
shall not be
light
in the
all that has taken
tions
factor, “any aspect of a defen
mitigating
a
” Johnson,
trial.’
509 U.S.
place at the
any
of the
character or
dant’s
record
367,
(quoting Boyde,
constitutionality
penalty
sentences
death
instructions
penalty
the first
garding
two
instruc
jury
statutes and
is whether the
First, there is no constitu
challenged.
he
permitted
jury
to consider
tions have
requiring that
prohibition
tional
on states’
Bly
evidence. See
mitigating
all relevant
307,
proved
299,
mitigating circumstances
Pennsylvania,
stone v.
494 U.S.
See,
(1990)
e.g.,
the evidence.
1078,
preponderance of
that the
role as a
accurately
technically
recommendation
argues
Gall
dismissing
Kentucky law
reflected
of the time. See
(“Correll”)
venireman
who was uncertain
Second,
id.
the Court concluded that the
about his views
penalty,
on the death
prosecutor
judge
gone
had not
far
so
trial court violated Gall’s constitutional
jury’s
to “improperly
role
describe[]
rights.
particular,
In
argues
Gall
that be
under state law in order to water down cause Correll did not meet the standards
their
responsibility.”
Finally,
Id.
spelled
Witherspoon
exclusion
out in
v.
rejected
Kordenbrock’s reliance on Illinois,
391 U.S.
88 S.Ct.
(the
more recent state cases
same cases
(1968),
L.Ed.2d 776
the trial court’s strik
here)
cited
Gall
altered the instruc-
ing him for cause was a constitutional vio
juries;
tions to be
read
it concluded that
lation.
applicable
those cases were not
because
A trial court’s decision to strike a
Kentucky
Supreme Court had “de-
juror
capital
based on his or her
views
clined to apply
retroactively
the new rule
punishment
is a factual determination.
prosecutor
which
judge
means the
and the
§
Under 28 U.S.C.
such a determina
did not
jury concerning
misadvise the
tion
presumption
is entitled to a
of correct
division of sentencing authority.” Id.
ness,
to be
if it
overturned
is not
not successfully distinguished
has
fairly supported by the record viewed
aas
the facts of Kordenbrock from this case.
Witt,
whole.
Wainwright
See
v.
Kordenbrock,
He argues
jurors
that in
412, 426-31,
law rights. pertaining and Gall’s constitutional tablishes what evidence may deliberations consider. The Commonwealth offers several coun- First, ter-arguments. juror testify any as to may Commonwealth [A] penalty occurring during contends that statements in the matter or statement phase of parents jury’s the trial both of the course of the deliberations or anything that or upon juror’s effect of on the processes mental or the juror’s mind or
any jury’s other emotions as deliberations.” Bibbins v. Dal sheim, influencing juror 13, 17 (2d Cir.1994). to or assent 21 F.3d dissent from the verdict or indictment or Using these looking standards in juror’s concerning processes mental deposition Palmer’s questionnaire, in connection therewith.... we conclude that very few of his state juror may testify question on the [A] First, ments are admissible. all almost prejudicial whether extraneous informa- questions and answers on question improperly brought tion was naire involved inadmissible “internal con jury’s any attention or whether outside siderations” they because involved the “ef improperly influence was brought fect” of the knowledge parole on the upon any juror. bear jury’s instance, deliberations. For *63 606(b). Fed.R.Evid. Tanner further clari- questionnaire asked of parole role “[t]he fied the distinction between “internal” and played your deliberation?” Palmer an “external” Examples imper- matters. swered: big part.” “[A] J.A. at 1168. The missible “internal influences ‘include the questionnaire then asked: important How jurors deliberations, during behavior the was the fact that parole? Gall was on The jurors’ ability comprehend to hear or trial “Very important.” answer The form then testimony, ‘physical and incom- mental questioned the publicity played role in de “ juror’ petence generally, of a ‘in- ”— liberations, possible alternative sen ” Herndon, processes jury.’ ternal tences under hypotheticals, different and Tanner, 156 F.3d at (quoting 634-35 483 asked “what convinced of’ [Palmer] differ 2739). at U.S. Misap- ent conclusions. J.A. at 1168-69. prehension of instructions is also internal short, questions most involved paradigmat Gall, in nature. See Warden v. 865 F.2d ic internal considerations —the of pa effect (6th Cir.1989). 788 n. 2 Examples of role and other upon factors Palmer’s or juror outside influences include a in a any juror’s other “mind or emotions as criminal trial previously who had applied influencing juror to assent to or dis job office; for a in the district attorney’s sent from the verdict.” Fed.R.Evid. attempt juror; bribe on a entry and the of 606(b). Nevertheless, since parole Gall’s newspaper articles and media attention trial, status was never addressed at see Herndon, into deliberations. See 156 F.3d infra, question the one that is admissible at 635. This sharpened Court further purely as a you external matter is—“Did definition of external influence: juror parole?” as know An distill principle [W]e that an extra- swer: “Yes.” at Similarly, J.A. 1168. near juror neous influence on a is one derived ly all of deposition comprised Palmer’s in specific knowledge about or a rela- admissible jury’s statements of his and the tionship with parties either the or their internal considerations at questions trial — witnesses. This knowledge or relation- concerning the effect possibility pa ship is such that it taints the delibera- role had on the jury’s deliberations. J.A. tions with subject information not to a at only testimony 1151-62. The that in procedural safeguards. trial’s These exclusively volved external influences was influences, moreover, types of may well acknowledgment, Palmer’s having after deny litigants their constitutional looked at his completed questionnaire, right to have the case heard a fair he had parole known that Gall was on impartial jury. when he committed his crime. at J.A. Finally, Id. at 636. juror even when a juror 1155. He also stated that another evidence, testifies as to fact, external that testi- had made him aware of a state mony parsed must be of all references ment that was also admissible. J.A. at regarding “the effect of that information 1166. (6th Cir.1994) Patton, (citing 2885). 1036, 104 S.Ct. arguments regarding
Gall’s
cognizable on
are not
law violations
state
Amendment
A
Sixth
defendant’s
Nevertheless, Gall does
review.33
habeas
ap
jeopardy
when facts
rights
put
are
claim, re
colorable constitutional
state a
developed
not
that were
pear before
§
he asserts
when
under
viewable
may
influence
at trial. Such extraneous
improper
juror’s
consideration
impartial
of an
guarantee
threaten the
violated
Sixth
influences
extraneous
Goins,
Herndon,
636;
156 F.3d at
jury, see
jury,
impartial
right to
Amendment
an
trammel a defen
may
605 F.2d
confrontation
.right of
well as his
and cross-
right
to confrontation
dant’s
time, Kentucky
At the
cross-examination.
Gladden,
Parker v.
See
examination.
parole as
jurors to consider
permit
did
363, 364-66,
L.Ed.2d
decision; nor
sentencing
aspect of their
curiam)
(1966)
(per
(holding
state
parole
to discuss
allowed
were counsel
jurors
violated
ments
a court bailiff
jury. Yet Bar
arguments before
their
rights).
Amendment
and Fourteenth
Sixth
dire that he had
at voir
ton conceded
has also found a due
Supreme
status,
parole
about Gall’s
previously read
violation when a “death sentence
process
that he knew
Palmer conceded
part,
on the basis
imposed,
at least
deliberations, hav
during the
parole
had no
[a defendant]
of information which
*64
juror.
from another
that fact
ing heard
deny
explain.”
or
Gardner
opportunity
involv
cast as one
This case is thus better
1197,
Florida,
349, 362, 97 S.Ct.
v.
430 U.S.
extrane
improper
introduction
ing the
(1977);
Sheppard,
see also
Moreover,
justice
the trial court’s re
law
require.”
matters “as
sponse
prospect
jury
§
to the
that the
predecessor
was U.S.C.
2243. The
to that
“tainted”
unacceptably
was
weak. He
statute vested a federal court “with the
merely
jury
advised
largest power
“it would be
to control and direct
error
this
you
for
Court
to instruct
form of
to
judgment
be entered in cases
upon
subject
parole.”
comment
of
brought up
J.A.
before it on habeas corpus.”
Hilton,
at
agree
1638. We
with Gall that when
whom the court itself characterizes as like- chopped down. ly to commit a similar offense. In order to avoid this result the court next takes the I. unprecedented step usurping the role of *67 jury, rejected the trial which insanity analyzing the After defendant’s claims of er- defense, and finds the defendant insane.1 ror to they guilt phase as relate the of the Although Kentucky provides jury proceeding 1. now that a ization under KRS ill, Chapter may 202A or 202B. guilty mentally find a defendant but (2)To procedure facilitate the established in option juries this verdict was not an for when (1) section, subsection of this the Gall was tried. may court order the detention the of (10) period defendant for a days of ten 2. This section reads: proceedings to allow for to be Disposition person 504.030 found not against initiated the defendant ex- guilty by insanity reason of possible pur- amination and detention (l)When guilty by a defendant is found not provisions Chap- suant the KRS insanity, reason of the court shall ter 202A or 202B. involuntary hospital- Ky.Rev.Stat. § conduct an 504.030. Ann. 507.020(l)(a). § Noth- Ann. majority Ky.Rev.Stat. rejects the trial, negating suggests in the statute ing was not that Gall them, including the claim is an element emotional distress extreme all agree I with stand trial. competent murder, that mental crime of or of the opinion of the court’s sections of those illness, insanity, a defense. legal short of is which I findings with will address the statute is reading court’s That the take issue.3 clearly by the is demonstrated erroneous in key holding Kentucky Supreme Court’s I believe be begin I with what Commonwealth, 694 S.W.2d Wellman v. one opinion and the holding in the courts (Ky.1985). 697-98 clearly erroneous. I is most which believe gov- that it was the concludes The court that mental illness The contention are one the ab- emotional disturbance responsibility prove extreme ernment’s Prior to is without merit. and the same as an emotional distress extreme sence of (murder) adoption of KRS 507.020 charged.4 The the offense element of (voluntary manslaugh- 507.030 KRS by its error conclud- compounds court then ter), differentiating standard be- “ex- equates illness that mental ing law, two, under the common tween the purposes disturbance” for treme emotional The passion.” heat and was “sudden ap- Kentucky murder statute. in change the statute does principal perti- in Kentucky statute reads plicable in in the definitions lie the difference part: nent passion” and “sudden heat and between disturbance,” if emotional “extreme Murder 507.020 in fact that the there is such. It lies (1) of murder when: guilty A is person in adequate provocation requires former eyes man under the reasonable (a) cause the death of intent to With circumstances, requires while latter he causes the death person, another in jury themselves place “to person; or of a third person of such he believed it to be at position actors’ as any prosecution except that Gall, p. supra, of the act.” the time guilty shall not be under person Thus, proper application, if acted under subsection illness, thereof, like in- of mental point of extreme emotional the influence in the drugs, on alcohol or is toxication which there was a disturbance for considering of the effect thereof test excuse, or explanation reasonable events, acts or words as such factors as reasonableness of which is particular relate to the defendant they of a viewpoint determined from the he was under ex- who contends that situation person the defendant’s the time treme emotional disturbance at as the under the circumstances de- of his act. How-
fendant believed them to be.
short,
may
illness
be con-
mental
ever, nothing contained in this sec-
in the reaction
sidered
to a
tion shall constitute
defense
pro-
when there
particular defendant
prosecution
preclude
for or
a con-
bative,
independent evi-
tangible and
circumstances,
first
manslaughter
viction of
such
initiating
dence of
his act
provocation at the time
degree
any
other
crime[.]
*68
conviction,
lynchpin of the
overturning
is also the
the
4. This conclusion
3.
In
defendant's
Thus,
penalty phase
the
the trial
analysis.
the court malees
moot. Since the court has addressed this
issue,
if
jeopardy
this
court's double
jeopardy
wrong,
double
conclusion is
the
however,
my
I would indicate
concur-
analysis
wrong,
retrial would not
is also
penalty
the
rence in the result reached on
be barred.
analysis
subscribing
all of the
issue without
used
to
by
the court to reach its result.
ivhich is
to
contended
arouse
Ky.,
extreme
(1978),
motivation
any
involved
“belief’ on his
Commonwealth,
v.
694 S.W.2d
697-698
part
regard
to the circumstances
(Ky.1985). The defendant has the burden of
alleged
induced the
emotional dis-
defense,
Gall,
production
supra,
on this
see
Commonwealth,
turbance.
simply
which cannot be
established
Ratliff
By "provocation”
I
imply
another,
term,
do not mean
spouse
found in bed with
context,
victim has
have
something
done
in this
include such claims
provoke
Although
might
defendant.
such
defendant as "God told me to shoot this
the case
shooting
as in
person.”
the classic
aof
*69
Wellman,
illness,
su-
see
showing of mental
her,
jury
the
should
against
and
spiring
pra,
upon
delusion based
have evaluated this
Thus,
schizophrenia.
paranoid
408-
defendant’s
Kentucky, 483 U.S.
v.
Buchanan
(1987)
necessary
the
clearly,
court found
L.Ed.2d 336
(some
the defendant’s
added)
provocation to be
predicate
omit-
footnotes
(emphasis
plotting
victim was
ted).
delusion
predicate provoca-
against her. Once
relative
reaching
In
its conclusion
then,
then,
found,
and
tion is
statute,
mis-
the court
Kentucky murder
negating
prosecution has the burden
Commmonwealth, 567
v.
reads Ratliff
miti-
as a
emotional disturbance
extreme
and Edmonds
(Ky.1978),
S.W.2d
point,
Illustrating
factor.
gating
Commonwealth,
(Ky.1979).
586 S.W.2d
stated:
court Ratliff
there
believed
The defendant
Ratliff
us,
before
presently
In the case
her, and that the
conspiracy against
was a
satisfy
prosecution carried the burden
and killed was
clerk she shot
retail store
of extreme emo-
jury
of the absence
conspiracy.
part
statutorily defined.
disturbance as
tional
was
the store clerk
Appellant believed
carried the burden to
The defendant
her.
testified:
conspirator against
She
a
jury
legally
was
convince the
she
up and told
“...
went
Charlie Gilbert
the commission of
insane at the time of
store,
shot;
I
at the
the one
that woman
jury
504.020. If the
the offense. KRS
told her not to sell
up
he went
there and
a
doubt
the defen-
had
reasonable
” “They
nothing out of the store....
me
not to have acted
proved
dant had been
me,
me
yes,
got
and
smart with
watched
under the influence of extreme emotion-
they
like
wanted to both-
they
acted
a
al
which there was
disturbance for
an-
girl and there’s
er me the Mullens
justification or excuse under
reasonable
in from across the
girl
other
come
as she believed them
circumstances
street,
girl,
a
headed
little black
be,
punishment they
could other-
and I
they
got
together
there
both
assess for murder could have been
wise
jump me.”
thought
they
going
was
degree
of first
mitigated by
finding
detective Bel-
Appellant
police
told state
course, if the defense
manslaughter. Of
(the victim)
lamy,
lady
“That
looked
legal insanity
had been believed
pull my hair.”
going
me as if she was
would have
the result
been
on medication and
Appellant had been
complete exculpation
mitigation
and not
Comprehen-
visiting
had
the local
been
punishment.
prior
for some time
sive Care Center
added).
(emphasis
Id. at 309-10
mental
shooting
for treatment of her
circumstances, three
Even under these
condition.
Kentucky justices dissented.
of the seven
Ratliff,
the absence erroneously After concluding that an element of the crime of murder bance is *72 prosecution prove failed to an element of proven it would have to in all cases. To murder, the crime of the court goes then merely proposition is to show its state this on to further find Gall was insane when absurdity. Kentucky When all of the 22 years crime was committed ago. dealing Kentucky with the murder cases finding This is any made without discus- read, precede statute are both those that of what sion must be shown under Ken- follow, crime and those that it is tucky law to establish the defense. emotional clear when “extreme distur- Kentucky, offering a defendant an insanity in the bance” is referenced same breath proof. defense bears the burden of The “element,” all that is intended is that Kentucky relevant provide: statutes a defendant provides necessary once evidentiary predicate, prosecution has proof; 500.070 Burden of defenses proof the burden on that issue. (1) The Commonwealth has the burden Thus, analysis concluding the court’s of proving every element of the case Kentucky Supreme that the Court violated doubt, beyond a except reasonable process, proceeds due from an erroneous (3). provided as in subsection This premise actually as to what the court ruled however, provision, does not require appeal, relative to Gall’s as well as a mis- disproof any element that is enti- reading of the earlier cases. The trial “defense,” tled a as that term is used fact, in in a judge, proceeded manner con- code, in this unless the evidence majority sistent with what the contends tending support the defense is of then-existing was the law and instructed probative such force that in the ab- jury appropriately. countervailing sence of evidence the In a in a claim case which there is defendant would be entitled to a di- acting under extreme emotional distur- acquittal. rected verdict of defense, insanity bance and an the differ- (2) require No court can notice of a kept ence between the must be two clear. defense to trial time. prior surrounding key The facts murder are to the emotional extreme disturbance de- (3) The defendant has the burden of surrounding fense. The facts defendant’s proving only an element of a case if key mental disease or are to the defect the statute which contains that ele- insanity defense. This distinction is criti- provides that the defendant ment Everyone agree cal in this case. may prove exculpa- such element in had problems Gall mental and had tion of conduct. his Yet, previously been institutionalized. Ky.Rev.Stat. §Ann. 500.070. presented nothing require Gall that would permit jury or to see crime retardation 504.020 Mental illness or through eyes his because “no reasonable (1) explanation person responsible or excuse” offered A is not for crim- was required by inal if at time the statute. At the risk of conduct of such conduct, repeating myself, there has to be some- as a result of mental illness retardation, he thing either done the victim or inherent lacks substantial appreciate in mur- surrounding capacity the circumstances either majority concludes on the Although the or to con- criminality his conduct testimony that expert basis of require- conduct form murder, rape and day on the insane law. ments of certainly required was not jury (2) chapter, the term in this used As Kentucky that conclusion. As reach retardation” does illness or “mental lengthy out in its points Supreme manifest- abnormality not include conviction, this affirming Gall’s opinion criminal or oth- by repeated ed many respects, an unusual trial conduct. antisocial erwise acted, at which was that Gall the least of The part, as his own counsel. least (3) ill- may prove mental A defendant found, I Kentucky agree, retardation, in this as used ness or the so-called bizarre trial tactics some of section, criminal exculpation actually very Gall were indulged conduct. opportunity had an clever.7 § 504.020.The commen- Ky.Rev.Stat. Ann. *73 in action in a man- the defendant observe § 504.020states: tary to in criminal juries afforded to ner seldom cases, insanity in an much less those which prior the law adopts The section also absolutely There is no defense is offered. proof the burden of on governed which law, evidence, procedure, which rule of or insanity. Previously the the issue of jury to find Gall compelled would have burden; and, had to bear that defendant does common sense com- insane. Neither (3) of this section continues to subsection seeing In addition to Gall pel result. in- prove that the defendant his require action, jury per- from in the heard several sanity. chance who had a to observe Gall sons insane, was the court concluding Gall within hours of the murder. his demeanor by psychia- two upon relies statements jury “snap- was entitled to credit this concerning existing mental trists Gall’s appreci- that he of Gall and conclude shot” unequivocally said condition who never criminality of his conduct and was ated the murder, that, day on of the Gall either the commit the impulse to resist the able or, doing what he was if didn’t understand if had chosen to do so. murder he did, unable to resist the that he was II. impulse to violate the law. There is no that the “mental disease or defect” doubt concludes, another The court also as satisfied, prong insanity defense was of the conviction, reversing ground Gall’s mental condition “snapshot” but Gall’s oc- prosecutorial misconduct egregious never day pre- on the of the murder was I first respectfully disagree. curred. I jury any degree of sented to the acquit the that the court’s decision to note certainty, they in a form would be com- insanity by defendant reason of subsumes pelled accept. Upon cross-examination they relate to Gall’s all other errors unless Noelker, by prosecutor, focus, Dr. the de- Thus, the insofar insanity defense. expert, specify fense was unable to even con- alleged prosecutorial misconduct is might one event which have caused Gall to cerned, alleged must be on the acts in leave the state of remission he was insanity on de- misconduct which bore suddenly legally become insane 8:00 to several point fense. The court does day prosecutor a.m. on the he murdered Lisa Jansen.- made clos- comments every in- Noelker admitted that because of in each and ing argument, also but amnesia, of con- Gall’s his mental condi- the remarks are taken out claimed stance very of the ignore essence day tion of the murder was difficult text way this trial unfolded. ascertain. I.Q. 7. Gall has of 124. case, always generally participation
Although not
Gall’s
his own trial.
It is
insanity
offers an
de-
clear that
seeking
get
when a defendant
Gall was
a full
merits,
that he commit-
acquittal
fense there is little doubt
on the
even though his
insanity
ted the crime and the
defense is
counsel
relying
insanity
was
on an
defense.
working
his last resort. Such is the case here. This
purposes
cross
fur-
never made a believable claim of inno-
ther
eyes
prosecutor
evidence
of the
cence,
majority opinion
insanity
and the
does not
was a sham defense in this
Therefore,
hint at innocence.
it is
even
case. Gall was doing his best to show the
innocent,
that under these circum-
jury
understandable
he was sane and
while the
prosecutor
bring
experts
stances the
out his
called
attorney
were trying
artillery
heaviest
and direct
at the insan-
to show he was
testimony
insane. The
ity
certainly
experts
defense. This
is not a license
thus became critical. Al-
arguments,
to make
but the ar-
improper
though
prosecutor’s
attacks on their
guments
that were made have to be
testimony may have been inartful and at
against
backdrop
of the nature
inappropriate, they
viewed
times even
were all for
insanity
defense in this case.
purpose
trying
keep
confusing
fact that
Gall had a
with,
begin
given
To
there is no doubt
mental disease with the conclusion that as
history
any
professional
health
a result he
legally
very
insane —a
brought
testify
in to
would indicate Gall
legitimate goal.
the Supreme
As
suffered from a mental disease. This ex-
Estelle,
stated
Barefoot
plains why
government
did not offer
*74
Gall was in a bind that even the expertise. of extensive action, eyewitness rape no saw him and shoot in opportunity jury to see the Jansen, Lisa he was in in positively position identified as was a far better than is usual perpetrator robbery insanity involving the of the store and a case an defense to police shooting that in place weigh testimony experts officer’s took the of the the shortly after the time of Lisa’s murder. context of all the other relevant Al- facts. po- though prosecutor arguably Gall admitted he remembered the the erred lice him and chasing shooting urged jury remembered when he the to not let Gall trooper, the state but society, jury already indicated he could return to was immediately guilty by not recall his actions aware that a verdict of rea- before not tying insanity that. The circumstantial evidence son would have its conse- Furthermore, him very strong. quences. prosecutor to Lisa’s murder was did circumstances, consequences. Under these it should not not overstate the As I earlier, in civil surprising prosecution pointed any post-trial be that the felt this out very convenient case proceeding was of amnesia and commitment the test is not argued accordingly. Into this mix came whether the defendant was insane when he conviction, the vehicle and this was crime, he is but whether
committed doing so. Kentucky Supreme As the now. insane “it cannot appeal: in Gall’s stated Court govern- strategy It was not committed, he will be
truthfully said say would who try to find someone ment to enough partici- to be if he is sane because human normal perfectly that Gall was very little likeli- trial there in the pating content was government being. im- insane validly found being hood of his with the facts experts counter defense Gall, 607 S.W.2d learn mediately thereafter.” and what of the case defen- original). observing (emphasis for themselves con- what the court Contrary to dant. Kentucky Supreme appeal, direct On having cludes, better off defendant allegations little of the thought so by deposition than testify Dr. Chutkow little spent it misconduct prosecutorial which testimony, deposition His person. Now, on discussing them. no time in the com- to his involvement was limited scope, review, its narrower habeas trial, little was of phase petency to in- unobjected these finds majority I was this the case So much value. conduct to be suf- prosecutorial stances the defense decision firmly believe hardly This a reversal. require ficient videotape deposi- objection to the raise court the of the state affords decision good decision and strategic was a tion due. deference that is one to boot.8 made his could have Dr. Chutkow III. govern- valuable to testimony more ability to turn, my the best I now As the person. ment if he had testified it, followed path ironically to the tortured seems points follow court out— testimony that there of little to reach its conclusion the court me—Dr.Chutkow’s insanity. Amendment None- Gall’s Sixth value on the issue was a violation of or no theless, signifi- would elevate its to mandate rights sufficient confrontation con- the bald and through *75 cance erroneous government presented The acquittal. an the provided “Dr. Chutkow health clusion testimony only mental the its showing of rebutting only [the] Chutkow, evidence by videotape Dr. professional, that, shows insanity.” This statement why this were not told deposition. We the simply misses again, once the court record, It is clear from was done. to the were no witnesses mark. There however, informed Gall’s counsel claimed am- or to Gall’s rape and murder not offer prosecution did court that if draw its con- jury The was free to nesia. In testimony, he would. Dr. Chutkow’s (1) its insanity from issue of clusion event, any concludes that any court demeanor; (2) testi- impressions of Gall’s procedurally defaulted claim of error was emo- lay from witnesses Gall’s mony about cause for the cannot show time of state tional and mental near Nonetheless, goes then default. court crime; (3) offering testimony expert qualify here on to find the circumstances as Gall’s post-hoc clinical conclusions jus- miscarriage of for the “fundamental condition; and emotional general mental exception tice” because “the Confrontation (4) genu- conflicting opinions clearly way stood Clause violation amnesia. ineness of Gall’s insanity.” This for reason of acquittal critical to his simply conclusion won’t claim of amnesia was result-oriented defense, trier of insanity I and a rational speaking pejoratively, water. Not hold A credited this claim. fact need have “result-oriented” because not use term concluded trier of fact could have way keep find a this defen- rational court had to paranoid schizo- although Gall was a custody vacating after his murder dant of counsel. rejects assistance Significantly, Gall’s claim ineffective the court of remis- during period he killed phrenic, criminality in which he understood the
sion acting pursuant not of his actions and was impulse. to an irresistible sum, impossible it is to conclude that jury gave weight undue to Dr. Chud- testimony all he was that kow’s since said trial, and the competent Gall was to.stand that for themselves. As the observed concludes, the Confrontation Clause procedurally issue has been defaulted and only has cause not shown for the been rather, default, but, good why reason apparent. issue was never raised is miscarriage justice” “fundamental that has occurred is the court’s.conclusion despite jury’s verdict to the con-
trary,
guilty
Gall must be found not
insanity.9
reason of
Mark Petitioner-
Appellant, COWAN, Warden, Roger D. Respondent-Appellee.
No. 99-1220. Appeals, United States *76 Seventh Circuit. Argued Dec. Decided Nov. Rehearing Rehearing En Banc
Denied Jan. my majority my necessary. 9. After I circulated cation of dissent is I have dissent primarily responding clearly my disagreement made revisions aimed at set forth the basis of my carefully analysis reviewing dissent. write further After with the court's and to revisions, purpose. I have no further modifi- would serve no useful concluded