*1 is REVERSED and the cause REMANDED proceedings.
for further America,
UNITED STATES of
Plaintiff-Appellee,
Bridget DENNY-SHAFFER, M.
Defendant-Appellant.
No. 92-2144. Appeals,
United States Court of
Tenth Circuit.
Aug.
1Q01
1002 *3 HOLLOWAY, Judge. Circuit appeals Denny-Shaffer Bridget Defendant 18 U.S.C. and sentence conviction charged that 1201(a)(1). indictment knowingly did “wilfully and from New commerce” transport in interstate “Kev- a child and Minnesota to Texas Mexico unlawfully Chavez, has been who Daniel away held seized, carried kidnapped, keeping purpose ... for the the defendant *4 defense The ... her child own.” multiple victim Denny-Shaffer Ms. —a (MPD) disorder —was 17(a). meaning of 18 U.S.C. within insanity defense rejected the judge trial The con- it requested on at and instructions insufficiency proof trial for clusion 17(a). Defendant under by defendant after by the guilty found then was waived. determination appeal is whether on issue The central rejecting the judge erred trial evidence insufficiency of the for defense jury in- thereon, refusing to submit Being convinced the defense. structions submission required the the evidence defense, reverse. we I Kidnapping following facts con- reveals the The record child, were which taking of cerning the the trial. dispute at basically not was em- Denny-Shaffer In 1990 and Reho- delivery nurse at ployed as labor On New Gallup, Mexico. Hospital both a.m., defendant 10, 1991, 5:40 at about May Hospital in General the Memorial entered Mexico, jack- wearing a lab Cruces, New Las University of identifying herself et (UNM) named student Mexico medical New to the She went R. at 42-44. See III Linda. Al- Backinoff, Atty., U.S. P. Asst. Rhonda babies, inspected several nursery where (Don Svet, Atty., U.S. J. NM buquerque, pedia- Kevin, doing a claiming to be including brief), plaintiff-appellee. her on the school. medical for the UNM rotation trics by other unobserved While id. at 48-51. See Storch, De- Public Asst. Federal E. Teresa up picked Denny-Shaffer personnel, hospital NM, defendant-ap- fender, Albuquerque, and left arm infant, him hid pellant. car and got into her then hospital. She R. baby. VIII with the for Texas LOGAN, headed HOLLOWAY Before evening, she 1007-08, same 1014-15. SEYMOUR, Judges. Circuit Texas, Bryan, arrived at the of her home she was going to return to New Mexico with boyfriend, former Jesse Palomares. Accord- baby, but that grown. it had not See id. ing him, appeared preg- to be Cowdry 269-70. could hear an infant nant. See III R. at 145-48. crying in background. See id. at 270. Cowdry about the knew Las Cruces kidnap- About noon day, the next defendant tele- ping and suspicious became that defendant phoned Palomares at work and asked him to might involved; be she thus contacted the return home. When Palomares arrived at police. See id. at 271-72. house, his he saw defendant in bed with an infant in her arms. Defendant told Palo- May On 1991, defendant and her your mares: “This is little one.” Id. at 150. daughter Genesis left Minnesota and headed There was blood on carpet. the sheets and back to New Mexico May car. On 23 the Palomares bag also noticed a containing a New police Mexico and the FBI stopped placenta. 151,153. human See id. at Defen- defendant’s car in Albuquerque. See id. at dant bury asked him to placenta in the 415. As the car being pulled over, de- yard front next to his where son’s placenta fendant instructed Genesis to hide baby was buried. Defendant refused medical pillow. under a See VI R. at 638-39. How- attention. Palomares had doubts toas ever, the baby was discovered and defendant *5 paternity baby. of the He made it clear to placed was under arrest for kidnapping. De- defendant that whether or not he was the fendant told FBI agent: an “I baby took the baby’s father, he did want to not maintain a from the Las Cruces Hospital.” See R. at V romantic relationship with her. See id. at 485. 161-62. days
After a Bryan, few in II defendant left join family, to her including her mother and PROCEDURAL HISTORY
teenage daughter, Genesis, in Minnesota. Minnesota, inWhile presented defendant Defendant was and indicted in the of District treated baby the stolen as her own. New Mexico on kidnapping See IV the charge on 378-79; 4, atR. However, VI R. at 634. June 1991. she moved for case, transfer of granted. the which was The 20, May 1991, On defendant had a tele- by case was tried the New Mexico federal phone conversation supervisor with her at Topeka, Kansas. Hospital, Rehoboth Cowdry. Beatrice Be- leaving fore Mexico, New defendant trial, had told Before gave notice pursu- Cowdry that baby she had a 12.2(a) her Texas ant Rule of Federal the Rules boyfriend, Palomares. See IV R. at 252-53. Criminal Procedure of her intention to invoke call, During the Cowdry defendant told insanity government defense.1 The defense, 1. The governed accused, federal by 18 the must be satisfied beyond a (1988), § U.S.C. 17 part was codified as of the reasonable doubt not that the accused com Insanity 1984, Defense Reform Act of act, Pub.L. No. mitted the unlawful but he was crimi 98-473, II, 402(a), § § Title 98 Stat. nally 2057 20 responsible conduct; person his that a (1984). changed The statute pre-existing the criminally responsible if, is not for his conduct at common principal law defense respects. in two conduct, the time of the "as a result of mental First, the prong statute eliminated the defect, volitional disease or he capacity lacked substantial "substantially and thus defense narrow[ed] appreciate wrongfulness either to the con his definition, the [insanity] which ha[d] evolved duct or to require his conduct to the conform from case law....” S.Rep. Cong., No. reprinted 98th States, ments the law." Wion v. United 325 (1983), 2d Sess. (10th in 1984 Cir.1963) (en banc) F.2d (empha Second, U.S.C.C.A.N. 3404. added), denied, the statute sis cert. 377 U.S. 84 S.Ct. shifted the burden to the prove defendant to the 12 L.Ed.2d 309 The "volitional defense convincing and clear evidence. prong” portion was the latter The previously above, test emphasized issue followed this which was eliminated court was by § that of the American Law 17. Institute The new statute provides: Model the Penal Code. Insanity This court held where 17. defense capacity (a) mental put accused was Affirmative defense.—It is an affirmative issue, proper charge jury, part, prosecution was defense to a Federal capacity that mental the crime that, an essential element of statute at the time commission charged; convicting before offense, defendant, constituting acts supervised re- years of five followed be of defendant examination mental for a moved timely appeal This lease, R. at 12.2(c) see IX 18 U.S.C. and to Rule pursuant the time sanity at followed. to determine the mo- granted court The kidnapping. important evidence first to turnWe examination mental ordered tion background, her concerning the defendant’s Lexing- Institution Correctional Federal condition, degree of its sever- mental evaluation There forensic ton, Kentucky. ity. accor- the court prepared report 4247(c) Mary by Dr. 18 U.S.C. dance with Ill staff member Conroy, psychiatric Alice exam- also Defendant institution. Denny-Shaffer’s op BaCKGRound The Teresita McCar- by Dr. the defense ined for Condition Mental experience psychiatrist with private ty, percipient testimony of several The as MPD. such disorders dissociative following reveals the at trial expert witnesses later. It is experts’ views detail the We background concerning defendant’s facts criti- now, however, note these convenient dispute. significant without illness mental experts’ views. about points cal experts were defense government A alter defendant’s agreement “Rina,” perhaps with another personalities, Background Defendant’s defen- “Bridget,” controlled personality, alter Richfield, in 1954 in was born Defendant kidnapping. time of conduct at dant’s Her Minnesota, the third of children. varying had views expert witnesses During she was when parents divorced by defendant’s participation any conscious *6 array of experienced an childhood defendant “Gidget” or dominant host Her abuse. and sexual physical severe kidnap- carrying out preparations as mother, by sister defendant’s described 20; atR. 1008-20. at VIII II R. ping. See and hit kicked and defendant “very moody,” defense, Dr. However, for the expert belts, hands, han- and her siblings with her whether not know McCarty, did said she R. at V parts of their bodies. See on all gers of the abduction at the time in control alters defendant once beat mother 500-01. See baby wrong. was taking a knew back, legs and her blue all over and black Solely because R. at 1136-37. VIII school, not to tell her and her to warned sent alters, the concerning the lack of evidence would be happened or anyone had she what re- insanity defense and rejected the judge R. at 630. Several again. See VI beaten jury. it to on instructions to submit fused bloody from times, noses received defendant 1147-48, 1153. R. at See VIII occasion, blows; she one on her mother’s and the defense judge rejected After of abuse. as a result arm a suffered broken it, stated counsel defense instructions once, 871-72, her At least R. 888. See VII at argument to attempt no need was there legs in the lower burned defendant’s mother been sole had since her defense R. at 1045^46. VIII bathtub. See argument said rejected. trial her, abusing de- physically In addition to permitted. For not be defense would on the con- defendant mother tormented fendant’s by jury waived with was trial this reason her, age at and told cerning eating her habits coun- and defense prosecution of consent four, have could not food that she judge. The sel, approval of with the and fat. Con- was too she table because dinner finding defendant a judge then made had been defendant versely, time after 4242(b)(1), one 18 U.S.C. guilty, see was more her eat throwing up, her mother told imprisonment to her months’ sentenced defect, (b) proof. has the defendant Burden disease or severe mental a result —The insanity by quali- proving defense appreciate nature and burden of unable to was wrongfulness convincing acts. Mental his evidence. ty or clear and not otherwise constitute does or defect disease 18 U.S.C. defense. eating age year. began binge at Palomares which lasted about a Defendant She food. seven, grade by ano- eighth pregnant preg- in the became became Palomares but the nancy miscarriage. R. at 884-85. rexic. VII ended See VI R. at 609-10, miscarriage 627. The left defendant four, age defendant sub- From about depressed lay more than ever. She bed jected her older brother. to sexual abuse days for several in a bathrobe soaked 513-14; R. at 866. Accord- R. at VII See V change blood and did not her clothes or Katy, ing sister who had her- to defendant’s sheets. See id. at 610-11. brother, sexually by the been abused self sexually abused her broth- defendant was early In 1990 Palomares broke off his rela- The abuse continued er as well. See id. thereafter, tionship with defendant. Soon junior high until school. defendant program defendant entered a treatment at time, Beginning defendant also about stress, Hospital, complaining the Cedars abuse experienced several incidents sexual 882-83, bulimia, and anorexia. See VII R. at her uncles. See VII R. at 566. one of 886-87. She told her counselors about her age staying with her father At while childhood abuse and her sensation that she California, raped by herself, defendant was observing including thoughts her Defendant told Dr. her father’s friends. feelings, from outside. Defendant was preg- McCarty that as a result she became diagnosed suffering eating from disorders R. at 872. nant and had an abortion. See VII and borderline disorder. See id. raped by age 16 defendant was also At 888-94, at 917. id.; employer in R. at California. See VI Hospi- Defendant transferred to Parkside first age At 16 defendant met her anorexia, diagnosed tal where she was husband, They were mar- Daniel Coffman. bulimia, dependence, alcohol and chemical together, and had children Genesis ried two disorder, disorder, depression mood was abusive and Shoshona. Mr. Coffman moderately disruption. severe years after toward defendant and five discharged See id. She was after marriage, him. R. at 519. she divorced See V 38-day stay. See id. at 895-96. While daughters Defendant and her moved Parkside, job. lost her Her condi- nursing attended school. Arkansas where she swings tion deteriorated and her mood inten- Arkansas, they met Peter Shaffer sified. See VI R. at 590-91. On one Arkansas, *7 in living married. de- were While occasion, recognize even one of failed long periods suffered from of severe fendant talking at daughters her own while to her instability. depression and emotional See V following day, did not house. The defendant 528-29; 556, 566-67, 612, 619. R. at VI R. at happened. what had See id. at remember pursuing an ad- From 1985 to while 578-79. nursing degree, she received mental vanced diary In wrote in her late 1990 defendant counseling program in health treatment that her life was “in Mai’s hands” and University part of of Arkansas. As Mai waiting to see “what wants she was program had of 98 defendant a total R. at 948-52. also made me.” See VIII She therapy The individual sessions. counselors indicating thought she was that she entries major diagnosed suffering her as from a May At her pregnant due in 1991. prescribed an anti- depressive disorder and in Minnesota in December funeral father’s take. R. at depressant for her to See VII family that told her she was defendant 876-79. experienced January In 1991 she pregnant. Texas, Bryan, In moved to 1989 defendant miscarriage. had a bleeding and believed she grown up, where her husband Shaffer had at 999. See id. joined Defendant’s but he never her there. month, accepted joba defendant during her The same emotional condition worsened Unit at in Health as a nurse the Women’s stay Bryan daughters noticed and her Center Gal- Medical R. at Rehoboth Christian of bulimic behavior. See VI recurrence job was scheduled lup, Mexico. 565-67, Bryan, defendant New 626-27. While 6,May 1991. February end begin 4 and relationship up a romantic with Jesse struck govern- Conroy’s report Dr. as the diary that she was con- 1169.3 indicates Defendant’s personal expert details much of the leaving Palomares and was con- ment’s cerned about history relationship: “I can’t ac- medical recounted above. Dr. their fused about over, go Conroy diagnosed suffering I on. I want defendant cept so can’t it’s (MPD), really Personality for him.” See id. go Multiple if it’s over from Disorder to let expert. letters she wrote: “CON- II did the defense Dr. at 961. block R. Conroy id. at 969. Defendant ME.” See stated: FUSED job. Gallup her new to start She moved diagnostic together, All factors taken family pretend to her that she continued to picture presented by Bridget Denny-Shaf- and talked to pregnant, and she wrote very consistent with a dissociative fer is trying pregnancy, her Palomares about Multiple Personality disorder known as baby probably him the was his and convince It the existence of Disorder.... involves 126, 136; R. at R. at boy. III IV was a integrated personality or more well two individual_ single within a states acquired Gallup defendant a new While Denny, psychologi- In the case of Ms. security card under the name Marina social cal disorder seems to have had its onset Bridget Kelly-Denny, plus two altered birth ease, early childhood. As is often the it certificates, indicating her mother may developed against have as a defense indicating and the other American Indian psychological, physical, sexual and/or father She also obtained New was Sioux. abuse which she endured. Mari- Mexico driver’s license under name Moreover, Conroy II R. at Dr. discount- Kelly. In 1991 defendant had her na March possibility malingering by ed the the de- taken, appearing picture pregnant. She told 17-18; fendant. Id. see also the discus- photographer that she wanted to send testimony sion of Dr. Foote’s in note infra. baby’s R. at photo to the father. See IV Conroy opine Dr. 339, 341, did not that defendant’s 348.2 host or dominant was in control into May 8 defendant checked a motel On at the time of the abduction of the infant.4 later, days Albuquerque. Two she abduct- report Her stated: ed Kevin Chavez from the Las Cruces Me- emphasize It is essential to that someone nursery. morial Medical Center suffering multiple personality from a disor- single der is still a individual. Nonethe- B less, important it is to examine which The Trial Evidence on Defendant’s alter was in in control fact Mental Condition during the behavior the instant offense. noted, Conroy strongly emphasized performed Dr. a court- As irresponsible person- examination of defendant at the FCI role adolescent ordered *8 accessed, perso- Lexington, Kentucky, prepared ality a fo- When this [“Rina”]. and searching baby agrees she was a rensic evaluation which was admitted into na for 1-21; hospital. IX it Howev- at trial. II R. at R. at and she took the evidence from ton, Kentucky. According McCarty, in the witnesses who We find no information to Dr. Denny-Shaffer photography degrees experi- saw at this session record as to her academic ence, and reported symptoms pseudocyesis that her challenge qualifica- made to her but no is (false only protruding pregnancy) included not a opinion defendant's tions to submit her on the stomach, ankles, legs but also swollen and blood- condition. getting up eyes, difficulty walking shot and positions. McCarty, seated To Dr. that was from person- "primary” MPD victim’s or "host” 4.An pseudo- psychologically consistent with cyesis induced ality personality con- is "the that has executive (an pregnant, that one is actual belief body greatest percentage trol of the physical symptoms) opposed which can cause during given period." Bennett G. time a time fastening simply pillow a to one's stomach to Multiple Personality Braun, Disorder Treatment appear pregnant. See VIII R. at 1127. personality, An “alter” other xiii hand, fragment “any personality other than Conroy psychiatric is 3. Dr. a staff is member personality." Lexing- Id. Federal the host at the Correctional Institution Gidget primary is A. It seems Superior” er, to “Mother also she refers personality. being present with (“Bridget”) as likely scenario The most the time. from to be the adoles- gathered seems data all you have Q. are the names that What (“Moth- “Bridget” personality cent personalities? identified of other are co-conscious personality Superior”) er Gidget, Bridget, Paul or A. There’s co-conspirators in this and were offense. Pal_ part Then there was added). Dr. Thus (emphasis II R. at 20' 14-year-old, I identified as a because Rina and the alters Conroy concluded that really got I that’s all the information time of the “present” Bridget were Rina, ... who’s from her. And then host that defendant’s the infant and taking of M-A-R-I. Then sometimes called also present at was not personality dominant Superior, part a called Mother there was There was some abduction. time of the Bird, then there part called a report suggesting Conroy’s in Dr. evidence identified part that wasn’t may have been personality the host name, description. It was fe- but during trip. the later points at some present male and little.... VI(D). Part See infra 860; (emphasis R. at 972-73 R. at VIII VII expert government The conclusion added). severity McCarty Dr. described host or dominant that defendant’s “The mental illness as follows: of defendant’s baby at the abduction of present was not at 1030. was serious and severe.” Id. illness expert, Dr. to that defendant’s was similar case, McCarty in an MPD Dr. testified that extensively at trial.5 McCarty, who testified sometimes primary personality is also concluded: She recog- personality, that it is called the host she was indeed My conclusion was A. by society person, and that it is nized illness and the suffering from a mental with the out- which interacts multiple personality illness was primary “officially.” Id. identified side world and is disorder. in control at As to the at 969-70. abduction, McCarty Dr. said: the time of suffering from it at the Q. still Was she discussing Q. your ... this From you saw her? time pri- primary personality, did Yes, A. she was. plan the abduction? mary personality it Q. suffering And was she before from A. No. May 1991? and on 10th of going to there was Q. Did know she Yes, A. she was. an abduction? be A. No. case, Now, Denny’s have Q. who Ms. primary personali-
you as the identified Q. execute it? Did she
ty? Association, Psychiatric degree of the American member McCarty her bachelor’s received 5. Dr. Abuse, Society the Inter- Child botany the American bacteriology from Iowa State Univer- Study Multiple Society Per- for the M.D. national sity. an from received Disorders, Alpha sonality University were New Her studies and Dissociative Mexico. (a society). psychi- She general Omega Alpha adult honor in the area medical concentrated internship Following one-year expert and a atry. witness previously testified as has *9 trial, residency hearing, three-year psychiatry sentencing at the affiliated and one one criminal UNM, McCarty hearings. worked at the hospitals custody at Dr. See and several commitment Albuquerque did out- Hospital where V.A. VII R. at 846-51. taught as an assis- patient psychiatry. She also of government objected to the admission professor at UNM. tant expert an on McCarty’s testimony as Dr. experience in ground she had insufficient attending McCarty an became Dr. objection and overruled forensics. The Psychia- Liaison psychiatrist at the Consultation testimony expert. id. at admitted her University Hospital in Albu- try at the Services McCarty’s challenge to Dr. is made 856. No McCarty has been the querque. Dr. Since appeal. qualifications on Psychiatrist Services. She is Chief ality personalities, if and several alter A. No. alters,
statute means that all or at least the fully personality, host must be aware of the capable stopping this? Q. Gidget Was nature, act, quality, wrongfulness and of an A. No. Denny-Shaffer responsible then was not at added). (emphasis Dr. R. at 1030-81 VIII (2) abduction; on the time of the and pri- the defendant’s McCarty testified that hand, other if an MPD victim is viewed as a Gidget, not control mary personality, does personality single varying individual with personalities. Id. 987. the other components, separate peo- and not divided as McCarty Conroy agreed Dr. thus Dr. and ple, changes; in such a ease the issue that, kidnapping, of the at the time question would be whether MPD and that her domi- suffering from was time of the control at the offense was unable “Gidget,” did not personality, nant or host nature, quality, to understand and participate in the abduction.6 consciously wrongfulness prop- of her acts. If this is the however, expert, could establish that Neither statute, interpretation then the er in control of defendant the alter significant defendant did suffer from a men- insane, legally was at the time of the offense illness, tal but it was not such as render i.e., appreciate the nature and “unable nature, quality, her unable to understand the wrongfulness quality [defendant’s] or the wrongfulness and of her acts.7 17(a). government acts.” 18 U.S.C. Conroy, expert, “[e]ach Dr. believed hand, McCarty, Dr. on the other was un- knew, taken alone or was personalities opinion way able to render an or another very knowing, doing she was capable of what controlling being about alter or alters’ II R. making judgments.” moral appreciate quality able to the nature and 21. wrongfulness of their conduct. See VIII R. conclusions, underlying Dr. From these at 1136-37. Conroy’s report stated that there were two (1) Psychiatric The American Association de- legal responsibility: possible views presence person- of a host fines MPD via criteria: light that in of the two If, hand, "Gidget” Conroy's report Multiple Personality stated that on the other Dr. single alters and became aware of Disorder is viewed as a individual with unaware of the first varying "Bridget” spoke personality components "Bridget" to the doctors and not divid- when However, though group sepa- Albuquerque. ed as he or she See II R. at 13. Dr. were case, people, changes. Conroy Denny-Shaffer rate the issue In such a had also indicated whether, question voluntarily given "Bridget” during would be at the time of control offense, the instant Gallup, in control Mexi- much of the time she was New co, suffered from a mental "Bridget” lying disease or defect such and knew that about nature, qual- as to be unable to understand the being pregnant. See id. at ity, wrongfulness of their acts. If this is standard, appropriate application of the Conroy 7. Dr. stated that then, my professional opinion, at the time of opinion responsibility of the criminal [a] final offense, Bridget Denny-Shaffer the instant did Bridget ais matter for the illness, Denny-Shaffer significant suffer from a mental but it exactly trier determine of fact to how the stan- was not such render her unable to under- applied appli- dard nature, will be this case. In the quality, wrongfulness stand the law, provided by cation of the standard a Mul- her acts. tiple Personality unique. Disorder is If the II R. at 21. alters, standard is taken to mean that all or at legal government While conclusions ex personality, fully least the be 4242(a) host must aware pert proper are nature, quality, wrongfulness 4247(c)(4)(B) of an report regard for a to the court act, Bridget Denny-Shaffer then was not re- ing offense, responsibility a defendant’s at the time of an sponsible time 704(b) of the instant offense. under Rule of the Federal Rules application probably (which Such an would mean that adopted part of Evidence Insanity suffering Multiple Personality Act) no one from Dis- they proper Defense Reform are not responsible anything (i.e., order could be held purposes for trial evidence for consideration times, West, jury). unless all alters were at all co-conscious See United States v. 962 F.2d regardless (7th Cir.1992) Will, J., of their mental status (per otherwise. 1246-47 *10 Such judges specially concurring), is almost never reh’g the case. two denied. in con- personality at must look [W]e of individual within The existence A. act, if and determine at the time of the per- trol personalities more distinct two or able to understand relatively was (each its own with sonality states nature, wrongfulness of the quality, or relating perceiving, of enduring pattern act.... and environment thinking about and self).
one’s at any states information or is void of of these This record Each B. full con- wheth- time, recurrently, any testimony takes would indicate which and some could or could not acting personality behavior. er the individual’s trol of the quality and appreciate the nature ASSOCIATION,DIAGNOS- AMERICAN PSYCHIATRIC wrongful, ... it and act or whether was Dis- of Mental Manual and TIC Statistical proving of has burden 1987) (3d [hereinaf- ed. rev. § 300.14 orders insanity by con- clear and the defense of McCarty noted Dr. DSM-III-R]. ter vincing evidence. the alters which there are cases MPD respect to memo- separated with entirely are emotions, identity, testimony support so and I that there is no feel
ry, perceptions, [insanity defense] about knows the submission one that no I have view that See VIII R. at 968.8 instruction the others. concerning application taken IV multiple person- insanity in this defense of ality context. Rulings Judge’s Trial 1147-48, R. at 1153. VIII was the evidence judge held that The trial stringent argues that defense, The defendant stat- to raise insufficient by in these imposed requirement ing: sessions, tutoring other while on occasions fact, die of personalities can be so different ability leaps problem-solving up through physi may make would show that the differences (>77-79. McCarty Casey. that different See id. at noted Ms. symptoms. Dr. that astounded cal eyeglass prescrip require produced on the Denny-Shaffer different results alters often also personalities id. at 1109. Different tions. See which were indica tests and MMPI Rorschach languages, be different-hand may speak different example, test her Rorschach For MPD. tive of ed, as differently tests respond physical such "a to as what Foote referred indicated Dr. results (EEGs) and Galvanic electroencephalograms duality,” indicating the psychological kind of tests, differently to Response respond medi Skin cations, personality in the presence of more than differently psychological on score and See body different occasions. on several same (Minne MMPIs as Rorschach tests tests such Denny-Shaffer five took VII at 764-66. R. Inventories). Personality Multiphasic sota They aware of. tests that Dr. Foote MMPI Saks, Personality Multiple Disorder and Elyn R. changes id. time. See fairly over drastic showed Responsibility, 25 U.C.Davis Criminal L.Rev. Moreover, Conroy appar Dr. at 792-802. (1992) Saks]. [hereinafter nn. 44-45 396-97 & separately to the ently the test to administer able many Denny-Shaffer of these charac- exhibited Bridget id. at alter. See Gidget host and teristics, are well as others which consistent strong tests indicated The latter two 802-03. person- separate complete into dissociation personalities, most two between the differences at Cedars Hos- example, tested when alities. For Gidget showings strong depression notably IQ July full-scale pital she exhibited depression compared demonstrated to little or no Conroy in Dr. but when tested score of further Bridget. Dr. Foote See id. at 802-05. IQ score was September of 1991 her full-scale impossible to fake that he felt it testified VII twenty percent increase. See an almost test adminis a Rorschach MMPI and both an Foote, Denny-Shaffer’s exam- Dr. at 750-51. R. ining psychologist, other, closely each in time to tered large that such testified other Denny-Shaffer’s test had indicia results IQ change significant in full-scale statistically anti- reliability apart internal MMPI from the Denny-Shaffer’s change suggested a scores On the id. at 810-12. malingering features. See ad- functioning the two cognitive test between malingering and relatively low incidence fak Denny-Shaf- See id. 750-54. ministrations. tests, their profiling ery psychological cognitive were confirmed abilities fer’s variable fakery, Michael attempts at see to such resistance witness, Casey, who Erile Sue had another Perlin, Symbolism Myths: Unpacking L. geometiy at the Ber- algebra tutored her Jurisprudence, Insanity Mythology County See VI Detention R. Defense Center. nalillo & nn. 556-560 714-16 Denny-Shaffer Casey Ms. testified that Case W.Res.L.Rev. forget concepts in the mid- occasions seemed *11 denying any error. maintains that addition to instruction to the She circumstances evidence, here, sufficiently jury insanity. by judge dem- on These actions when the suffering appealable judgment, the defendant is are in our and the is- onstrates and that multiple personality insanity a disorder from sue whether the defense was suffi- per- an host or dominant ciently by there is identified raised the evidence was not not sonality, and that this waived. carrying out of planning conscious reject government’s argu- We waiver conduct, wrongful then sufficient show- First, ment for several reasons. this waiver require ing made to submission has been contention was not made in the court district trier of fact under 18 the defense to the any hearing, at time. At the close of the Appellant’s § 17. See Brief-in-Chief U.S.C. judge the district announced his when views government, on the at The other 44-50. defense, insanity on the he referred to the hand, supports the restrictive view of the appeal reasonably to this court which was judge, by arguing the trial adopted evidence certain to follow. See IX R. at 1172-73. to the mental only evidence as state by jury only Defendant elected to waive trial personalities in con- the alter legal the district court had made its wrongful act
trol at the time of a is relevant. after ruling insanity that the evidence on the de- at Appellee Brief of 18-20. present fense was insufficient to a submissi- y defense. Thus the do not ble circumstances support an an inference of intent to waive Insanity Availability key this issue. Appeal Issue Defense counsel confirmed that she had insanity turn Before we to the issue her after rested case announcement of the claim, government’s we will deal with the judge’s ruling. judge Then the and counsel Court, made for the first time this discussed the issues for the fact finder as right appeal Denny-Shaffer waived her to guilty, guilty, guilty by not or not reason of an court’s denial of instruction on district insanity. Rejecting id. at Noting insanity that after the her defense. issues, flatly formulation of the the court defense, rejected insanity judge guilty by stated that the issue of not reason by jury trial and have her elected waive “out,” saying that the defense guilt judge, determined or innocence longer option jury was no an for the or the government claims that she thus waived if court it was to be the finder of fact. See “peculiar jury all claims of error trial.” id.; (“it IX see also R. at 1172 be a won’t Appellee at 25. See Brief of case”). defense in this argues government that the issue is: pronouncement by judge, After this defendant, convicted in a bench “Whether defense counsel stated that it did not make trial, concerning an failure can raise issue present any argument insanity— sense give Appellee Brief of instruction.” pointless it would have been because she flawed, it fails to This formulation is argue would not have been allowed to it to recognize underlying substance and ex- jury. See VIII R. at 1150. court judge’s rulings. tent of the trial While “No, responded: you per- can’t. I wouldn’t judge did refuse to the instructions added). you (emphasis mit to.” Id. at 1151 defense, on the he did so because he Only say then did defense counsel insufficiency first ruled that of evi- due to dence, “thing jury.” to do is to waive the Id. How- possibility or a court of verdict ever, clearly finding defense counsel stated that she guilty only by of “not reason of insan- 4242(b), opposed underlying objec- ity,” ruling, IX R. and her 18 U.S.C. was “out.” court, tion was noted which 1172-73. The himself as trier of the said defense,9 “[sjurely.” facts refused to consider the Id.
9. The record shows no
the defen-
when he decided
withdrawal
consideration
on his verdict
4242(b).
judge’s
dant of the
defense from the
under 18 U.S.C.
*12
judge
merely
the
did not
judge’s comments show his
Thus
district
The district
reject
proposed jury
more
one or
instructions
of her
recognition of defendant’s reservation
Rather,
insanity
rejected
on the
defense.
he
ruling:
right
appeal
to
his
insanity
being
the
defense as not
available to
her
has waived
I will
defendant
find
defendant at all. See United States v. White
jury
solely because
the
right to a
trial
of
(9th Cir.)
head,
(affirming
896 F.2d
a
ruling,
in order to be
court’s
jury
district court’s refusal to instruct the
on
on the affirmative
entitled to instruction
insanity
the
defense because the evidence
insanity
present
to
of
she needs
defense
adduced could not have established “with
acting
that the
alter was unable
convincing clarity”
applicable),
evidence
that the defense was
denied,
quality or
t.
498 U.S.
111 S.Ct.
appreciate the nature and
to
cer
342,
recognized, defendant’s
to know
right
appeal
being
of her
either what was
done or that it
amounted to a waiver
wrong.
apparently
argue
that a submissible
defense
This basic tenet has
been
entirely
unaffected
advances in
presented
in accord with 18 U.S.C.
medicine
*13
17(a).
Perlin,
psychology.
The issue
not waived and will or
See Michael L.
Un
packing Myths:
Symbolism Mythol
the
The
be considered on its merits.
ogy
Insanity
Jurisprudence, 40
Defense
(1990)
599,
658-66
[here
VI
Case
W.ResL.Rev.
inafter
As the first
Harlan
Perlin].
Justice
The InsaNitv Defense
nearly
years ago,
noted
one hundred
while
justice
goals
sys
one of the
of the criminal
A
punish
protect public
tem is to
criminals and
Background
The
the
Defense
safety, some “crimes of the most atrocious
justice system punish
criminal
subject
Our
character” must not be the
of crimi
reasons,
many
es those it convicts for
chief
imposition
nal
if the
sanctions
of such sanc
among
being
against
them
retribution
require the
depart
tions would
courts “to
criminal,
crimes,
law,
deterrence of future
and
principles
from
fundamental in criminal
Kelly
rehabilitation of the criminal.
v.
recognition
and enforcement of
Robinson,
36, 49, 107
353, 361,
479 U.S.
S.Ct.
by every
which are demanded
consideration
(1986). However,
216
93 L.Ed.2d
we hold
humanity
justice.”
and
Davis v. United
morally
States,
469, 493,
353, 360,
accountable
those who are
cul
160 U.S.
16 S.Ct.
conduct;
pable
historically
for their
have
we
not held “the
accounta
ble for at least some of their actions. See
B
Arenella, Convicting
Morally
Peter
MPD,
17(a)
Denny-Shaffer,
and
Reassessing
Relationship
Blameless:
Be
rejected
The district court
the insani
Legal
Accountability,
tween
and Moral
39
ty
defense as
submissible
not
to the
1511,
(1992); Stephen
UCLA L.Rev.
1521
J.
because
record is void of
“[t]his
informa
Morse, Excusing
Crazy:
Insanity
The
any testimony
tion or
which would indicate
Reconsidered,
777,
58 S.Cal.L.Rev.
Defense
acting
whether
[alter]
could
(1985)
principle,
[hereinafter
Morse].
appreciate
or could not
quali
the nature and
insanity
defense can be traced back
ty
wrongful.”
of the act or whether it was
1,000
law,
through
years
at least
of British
1147-48,
judge
R. at
VIII
1150. The
thus
Roman,
perhaps
and
back as far as
Chris
limited consideration of the evidence to that
tian,
Mickenberg,
and Judaic law. See Ira
A
dealing
acting
with
alter or alters
Surprise:
Guilty Mentally
Pleasant
But
offense, requiring proof
time of the
as to that
III Verdict Has Both Succeeded in Its Own
statute,
satisfy
alter or alters to
and
Right
Successfully
and
Preserved the Tradi
denying
dealing
consideration of the evidence
Insanity Defense,
tional Role
with the dominant or host
943,
(1987); Morse,
953-54
U.Cin.L.Rev.
satisfy
defendant to
defense stat
at 781 & n. 5
.
S.Cal.L.Rev.
judge
ute as the
it.
construed
point
gleaned
to be
from this discus-
simple:
specific
sion is
Whatever the
argues
formu-
The defendant
that the
throughout
ruling
lation of the defense has
construing
been
erred
his
17. She
history,
always
proof
it has
been the
that the
case
maintains that
was sufficient to
assign
respon-
loath to
law has been
criminal
raise a submissible
defense with
Omohundro,
(19 Wall.)
68-69,
during
errors of law made
the trial which were
86 U.S.
22 L.Ed.
Folsom,
(1874);
objected
properly preserved
appeal
Company
to and
are
Insurance
v.
85 U.S.
248-49,
(18 Wall.) 237,
(1874);
open
appellate
for consideration
courts. See
most
to the
defendant.
that,
wrongfulness
remember
al-
of the conduct which the
court also needs to
controlled;
convincing"
though
“clear and
stan-
alter or alters
and that defendant
one,
proven
fairly high
“clear and con- had
these facts
clear and convinc-
dard is a
vincing”
highest
ing
does not call
levels
evidence.
permit
'proof
evidence would
If
We hold that under the test stat
high probability
to a
to find
Owens,
presented
ed in
the evidence
here
insane,
insanity
in-
was thus sufficient to call for the submission
required.
struction is
fact,
insanity
of the
defense to the trier of
(footnotes omitted) (em
F.2d at
854
435-36
given
application
the reasonable
17 un
added);
phasis
see also United States
apply.18
der the rules of construction that
(9th
Whitehead,
Cir.),
F.2d
cert.
statute,
construing
again
we note
that its
denied,
938, 111 S.Ct.
498 U.S.
purposes
principally
were
to shift to the de
(1990) (adopting
L.Ed.2d 306
the Owens
proof
fense the burden of
and to
test).
defense,
If the
raises a
evidence
burden,
increase that
and to eliminate the
general
jury,
not
rule it is
prong
appar
volitional
of the defense.19 It is
judge,
given psychi
to determine whether a
ent from the face of the statute that it was
diagnosis,
accepted, brings
if
atric
the ac
not
intended
eliminate the
de
legal
insanity.
cused within the
definition
fense,
persons
but rather to limit it to
whose
States,
Taylor v.
222 F.2d
United
volitions,
perceptions, rather than their
were
States,
(D.C.Cir.1955);
Stewart v. United
impaired
severe mental disease or defect.
(D.C.Cir.1954).
214 F.2d
In deter MPD is such a disease or defect and both the
mining
error
in re
whether
was committed
purposes
defense,
historical
jecting
refusing
the defense and
to instruct
objectives
Insanity
well as the
Defense
on it under 18
our review is de
U.S.C.
Act,
by construing
Reform
can be vindicated
Whitehead,
novo.
Here there is evidence for the defendant ation of evidence the host or dom plainly support appreciation sufficient to inferences inant and his or her nature, Denny-Shaffer trier of fact that quality, wrongfulness suffers from of the [MPD]; a severe mental rulings defect or disease criminal conduct. The the trial abduction,17 that at the time of the domi- this case effect all the struck *17 personality showing Denny-Shaffer’s nant or host not in control so evidence was that host offense, personality cognizant as to cause commission of the or dominant was not of personality wrongful was not that an alter or the conduct of aware the alter or alters personalities cognizant parties “appreciate were the con- and thus did not the nature and actions; trolling physical quality wrongfulness” the that as a result of her acts within 17; § meaning rulings of defendant’s severe mental or de- the of disease the were in fect, Lisnow, People the host or dominant error. was Accord v. 88 Cal. VI(D), 1990) (mere infra, possible diagnosis 17. In Part we discuss the Cir. of defendant schizo responsibility phrenic past necessarily criminal the defendant’s con- at some times does not subsequent imply legally duct to the abduction. that the defendant was insane times, proffer relevant but a of such evidence required probing inquiry a more into the defen showing jury 18. We do not hold that a factual state). dant’s mental MPD, finding that a defendant suffers from with- more, automatically § require- out satisfies 17’s 19.Congress ments. Instead we hold that where the evidence chose to eliminate the volitional permit prong virtually would to find that a defendant of the defense because of agreement amongst practitioners suffers from MPD and that the host unanimous that scientifically way assessing was unaware of the there criminal conduct at issue was no valid of conduct, 225, participate plan impairment. S.Rep. and did not in or volitional No. 98th 226-29, juty may Cong., reprinted also find that the "defendant” satis- 2d Sess. in 1984 However, requirements fied 17's return a ver- thus U.S.C.C.A.N. 3408-11. no such guilty only by insanity” problems reported perceptual dict of "not of were with the reason 4242(b)(3). pursuant supra prong Accord United States of defense. See sources cited Cameron, (11th v. 907 F.2d 1060 n. 14 note 2.
1017
(1978)
Ga.App.
Georgia, 166
S.E.2d
Cal.Rptr. 621
Supp.
App.3d
prem-
There an
defense was
fugue or
(error
of
dissocia
evidence
to strike
multiple personality
which
disorder
ised on
by traumatic neurosis
produced
state
tive
unconsciousness).
properly
have been
judge found to
the trial
of
prove defense
tending to
fugue.
psychogenic
The
diagnosed as
it
Therefore,
was
we are convinced
rejected
insanity defense and found
to re-
to be construed
the statute
error for
mentally ill”
“guilty
but
defendant
to that
of
evidence
strict consideration
finding.
Georgia
for such a
provision in
law
planned
alter or alters
to the
pertaining
argued
trial
appeal,
that the
Kirkland
On
abduction,
reject
and to
out the
and carried
ruling
contrary to the evidence
judge’s
was
evi-
of law consideration
as a matter
to find
that was error not
law and
it
the host or dominant
dence that
insanity.” The
guilty by
her
reason
“not
here.20
wrongful conduct
unaware of
was
Appeals
rea-
followed the
Georgia Court
opinion
there
soning
Grimsley
C
driving the
person
car
“was
on MPD
Case Law
Related
driving.”
person
of drunken
only one
accused
ruling in
this
Georgia court noted that
proper construction
regarding
Decisions
Grimsley
made “without elaboration”
was
where MPD
statutes
defense
“law
likewise concluded
but then
have been
not numerous. We
involved are
ac-
liability
person
of the
adjudges criminal
case where such
find
federal
unable to
person’s
cording to the
state mind
asserted under
involving MPD was
defense
act;
begin
parcel
not
we
time of
will
Moreover,
involving
cases
state
among
various
accountability out
criminal
few in number
are
this
disorder
mental
at 564.
of the mind.” 304 S.E.2d
inhabitants
variance
assistance because
of limited
itself, the Kirk-
further elaboration
Without
insanity defenses in
in the nature
rejected the defense raised
opinion
land
states.
the MPD evidence.
there on
on State Ohio
government relies
Georgia,
Ga.App.
Kirby v. State of
265, 444
App.3d
N.E.2d
Grimsley, 3 Ohio
(1991),
similar to Kirk
error,
victim,
merely confining
defense should have been
held that
after she
By
analysis by any
far the
We
most extensive
state
have also considered Commonwealth v. Ro-
Supreme
man,
(1993),
court was done
ington
Court of Wash-
414 Mass.
also her hand, there is substan On the other infant. an defense tial evidence that raises defendant, person record, as the host for the con viewed in the There is evidence holding confining or ality, respecting such continuing of kidnapping as a sidering this There is ex baby after abduction. support inferences that fense, which could 1201(a) McCarty that MPD testimony by pert Dr. while the violated active, up acts committed victims tend to cover or dominant host together proof, their alters.24 This proper focus in the hold is we which States, 326 U.S. Chatwin v. United 22. Cf. (1946) Gidg- 233, 235, Q. Minnesota? What does What about L.Ed. 198 66 S.Ct. you about (finding to show that et tell Minnesota? the evidence failed that thing against she told me about Minne- A. The confined the victim defendants had Garcia, wishes); good-bye saying 854 F.2d was that she parents' accord sota remembered or her holding Meaghan, of two and she left (suggesting her mother and at 345-46 them; during a three I think for both girls by card for them—or young one defendant think, memory, physical I following ab- period their actual that she has little snatches month holding baby, people like Shanhi a direct violation of about could suffice duction statute). baby, one that I holding the most—the kidnapping but actually pin she left. is when can down McCarty testified on these matters Dr. VIII R. at 1007-10. by government detail: Q. some coun- [cross-examination Now, testimony, your based on what hap- it's Gidget you sel] what about Q. did tell What you, certain that at times being defendant told after what she knows occurred pened or baby primary after took the hospital Cruc- she in Las parking lot at the possession of child? was in knew that she es? memories, A. Yes. patchy and she very She has A. Q. thought Is that true? driving. still had the She remembers remembers, Yes. go A. they She would to Dallas. primary personality in- Q. think, at times baby's diaper, And changing and she I remembers, think, as her own? that child post "San troduced sign that said I A. Yes. Antonio.” Id. at 1065. What that? COURT: THE remembers She DOCTOR McCARTY: of the effects McCarty that one testified 24.Dr. sign, "San Antonio.” road try to then, remember, host is to cause the that? MPD after she Q. What does and, ignore of the alters. the actions for” or being Biyan "cover Then she remembers A. 923-24, 929-31; See, VIII atR. e.g., VII R. very patchy She memories. again, are there explana (the attempts to construct host meeting 940-41 with the going an AA remembers alters); id. unexpected events caused tions for actually point said that baby, she that—at (the attempt hers, lies in at 942 host often and that’s baby as introduced she (some illness); lie thereafter, at 943 alters id. conceal the it was it but introduced how problems the host which it struggle. even when causes struggle, an internal was a like with); (describing how id. at 985 Now, must deal then her reaction was her sense or Q. what procure sets of identi several patients often MPD hospital Las Cruc- parking lot at the attempts by alters to estab papers in fication es? (alters identities); often id. at 1003 mean, lish their own kinds of used those *20 I Just fear. A. present or the host words, fear, on characteristics take shock. 1020 ment, holding, transportation or of the in- the defendant’s host
some evidence fant.26 sought to conceal the dominant abduction,25 proof
baby after
We note that several of the ac
severity
earlier of the
of this MPD
discussed
question
tions in
before and after the abduc
case,
question
all raised a
of fact on the
arguably steps
tion of the infant here were
jury.
insanity defense for the
We are con-
accomplishment
that aided or abetted the
might suggest
kidnapping.
This
that the
showing of the
vinced that
the substantial
personality could be found
host
liable
perceptions
mental
disorder
defendant’s
aiding
abetting
or
the alter or alters who
presented
genuine
issue whether the defen-
abducted the child.
the case is to be
Since
personality,
at these
dant’s host
dominant
trial,
a new
we will note that
remanded for
child,
after the abduction of the
later times
aiding
abetting theory in
no
these cir
appreciate
the nature and
was unable
jury.
cumstances should be submitted to the
quality
wrongfulness
during
of her acts
...
“One must
aid or abet someone else to
subsequent
holding
confinement and
commit a
offense.
substantive
One cannot
the child.
aid or abet himself.” United States v. Mar
tin,
(11th Cir.1984).27
1404,
747 F.2d
if
Thus
the evidence is substan
persuaded
determining
We are not
retrial,
tially the same on
de
liability
aiding
abetting,
person
alter
fense should be submitted to the
as it
recognized
legal
alities should be
as distinct
alleged
kidnap
bears
violations of the
persons,
independent
with
status under the
ping
carrying
laws,
law
out the abduction and
may
criminal
who
be aided and abett
held,
during
in the later actions
the confine-
ed.28
it
also
As we have
is the host or
up
the host
order to
atten-
themselves as
not call
woke
when she was seven and there were
disorder);
(MPD patients
fasting
tion to the
id. at 1100
crumbs
she should have been
be-
[when
attempt
up
you
often
to cover
events in their lives
fore
It is like what
can’t
communion].
ex-
understand).
they
plain, you
caused
alters which
do not
Id. at
hide.”
personality generally
The host
does not know
transportation
foreign
26. While
in interstate or
about the existence of the alters. See Frank W.
kidnapped
commerce of the
victim is an essential
§
Multiple
Diagnosis
Putnam,
and Treatment
Person-
offense,
1201(a)
jurisdictional
element of a
it
leads,
(1989).
ality
This
“more
Disorder
need
not be established
the defendant in
often,”
actively denying
host
evidence of
question participated
transportation,
in such
but
alters,
may
the existence of
even cause the
merely
point during
that the victim was at some
host to
from treatment when
flee
confronted
transported
foreign
the offense
in interstate or
evidence of alters. See
at 107.
id.
What
Jackson,
commerce. See United States v.
that,
Denny-Shaf-
MPD victim does know is
like
903,
(5th Cir.1992),
F.2d
910-11
cert. denied sub
fer, they blank out or lose time and are later
—
nom.,
States,
-,
Comacho v. United
U.S.
doing things they deny having
accused of
done.
3055,
(1993).
113 S.Ct.
125 L.Ed.2d
they
When
are confronted with such situations as
" 'waking up’ in the middle of conversations
Langston,
27. See also United States v.
970 F.2d
know,”
people
they
they
[with]
whom
do not
(10th Cir.) (proof
705 & n. 12
must establish
simply
attempt
do not know what to think and
aiding
commission of offense
someone and
up
discovering
"prob-
cover
to avoid others
their
abetting by
charged),
defendant so
cert. de
Saks,
397-98;
lems.” See
25 U.C. Davis
L.Rev.
nom.,
States, - U.S.
nied
Francis v. United
sub
VIII R. at 1018.
-,
113 S.Ct.
1021 carrying away the in- abducting napping, or fo- must be the which dominant ransom, or holding it for reward criminal fant and possible of determination cus of the otherwise; actions of that the various kidnapping the and respecting responsibility continuing during the insanity asserted defense the taken charge the defendant and carrying out the abduc- of conduct in course here. recovery the the thereafter until tion and YII may be considered. infant judge erred sum, trial that the In hold we insanity with In connection the ability or respecting the rejecting evidence in asserted, instruct jury should be the defense inability the host or dominant §§ and 17 in accord with 18 U.S.C. ed quality or and appreciate the nature to 4242(b) the burden that the defendant has the kidnapping in of her acts wrongfulness by and insanity defense clear proving her here, limiting consideration in his infant evidence; evidence convincing that such the pertaining to alter strictly to evidence suffering, at the that was she must show she the the time of that were control alters mental dis question, from severe times rulings possible on a abduction, making his thereof, defect; a result ease or that as § 17. We U.S.C. insanity defense 18 appreciate the to nature was unable for a and remand reverse must therefore wrongfulness of her actions quality or the trial. new found; if that committing violations bearing on retrial, if the evidence theOn showing she is then made such a she has of U.S.C. 1201 alleged violation 18 the entitled, to com although she be found have substantially the same insanity defense is not charged, to be found the offense mitted us, should insanity defense before as is insanity.30 only by reason of guilty Along with other jury.29 to the submitted be charged that further jury should be kidnap- concerning the required instructions present- defense with connection jury be instructed charge, the should ping here, defen- whether it should determine ed government whether should find that it showing a burden of carried her dant has the essen- proving its burden of has carried from the defect severe mental disease offense, including trans- tial elements multiple personality alleged of her evidence by someone interstate commerce portation in disorder, alleged host or dominant abduction; the defendant whether after per- personality or personality and an alter unlawfully kidnapping law violated the controlling actions present and decoying, sonalities kid- confining, inveigling, seizing, Perlin, years. 40 just See over judge recognized Case again the trial 9½ that 29. We note case, this nn. In after at 651 231-232. jury the defendant & trial that waiver W.Res.L.Rev applied years. insanity defense rejection Denny-Shaffer’s sentence his 5¼ stage; said if proceeding he that to the acquitted basis on the a defendant is Once retrial, right to a defendant’s there were Attorney decides to General IX that retrial. See not waived trial for her, may Attorney General him or confine atR. 1160-61. accept conditions require federal officials state returned, facility. is no there verdict be Should such a in a state confinement defendant's go walk free danger Husar, would the defendant F.2d 1497 859 States v. See United insanity acquittee is re- denied, A federal curiam), streets. reh’g (D.C.Cir.1988) 866 (per General, Attorney custody manded denied, (en banc), U.S. 492 cert. 1533 F.2d proceedings to commit may who institute (1989). Sec 572 106 L.Ed.2d 109 S.Ct. facility for treatment person to state or federal federal require "continued 4243 and tions dangerous. longer she is no until he or insanity acquittees even after federal over control held Supreme Court has U.S.C. Attorney placed by General acquittee is detain an it is constitutional may Only custody.” a federal court Id. state necessary long to render acquittee as it is for safely acquittee be can that the later determine dangerous public, longer to the person no acquit Denny-Shaffer were See id. If released. longer the maxi- than take if should even basis, presumably be com she would this ted on which the crime mum sentence Secre custody the New Mexico to the mitted States, U.S. See Jones United committed. treatment. tary of Health Environment 354, 370, 77 L.Ed.2d S.Ct. 1992). (Michie 43-1-1(E) See N.M.Stat.Ann. fact, average study that the found insanity acquittee for an term confinement *22 704(b) finds, times; jury prohibits if the so Federal Rule of Evidence at various responsi- expert expressing criminal from then its determination of witnesses view insanity bility question insanity defense has and whether the ultimate at a trial. Thus, based on the evi- Judge Holloway’s opinion been should be acknowl- established ability concerning the actions edges, permit dence if there is sufficient evidence to personality appre- submission, to of the or dominant host then the determination of quality of the defen- ciate the nature and capac- whether the defendant had the mental wrongfulness thereof dur- dant’s acts or the ity appreciate quality “to the nature and or ing carrying out of the abduction and acts,” wrongfulness [her] U.S.C. recovery subsequent until the of the acts 17(a), strictly jury question. is Because infant. rejected theory the district court the defense of the defense at close of the judgment of conviction Accordingly, presentation, government defense’s did imposed are and the sentence REVERSED present testimony. not rebuttal The record REMANDED for further and the case is report government’s contains of the opinion. this proceedings in accord with expert. LOGAN, Judge, concurring: Circuit Judge Holloway’sopinion does not focus on Judge I is concur most of what said possibility personality that the host was a Holloway’s opinion agree and its result. I abduction, which, participant planning that if a host defendant has course, subject also would defendant to proves by convincing clear and evidence that liability. pre- In the instant case there were an alter or alters were control when the pregnancy long period tentions of over a committed, per- crime was and that the host Apparently hospitals before the abduction. sonality person- had no control over the alter scouted, were checks were made of defen- crime, ality during the commission of the ex-boyfriend’s type, baby dant’s blood then defendant is entitled to verdict of not acquired. clothes were One or more elabo- guilty by insanity. reason of rate schemes were concocted for defendant acquire baby. placenta Human agree majority I that if with the the indi- apparently hospi- blood were stolen from the medically person- vidual has a definable host impression tal to create the of defendant’s ality, per- then the “defendant” is that host delivery baby. ostensible of the abducted sonality purposes of 18 U.S.C. I jury The would be entitled to find these are psychiatric think this follows from science’s mentally of a highly acts disturbed but possible best definition of who the individual personality desperate educated nurse host Consequently, during “is.” if the events in boyfriend. Judge hold on to a lost As Hollo- question personality, an alter was the extant notes, way’s opinion there was also a two- ordinarily given the defendant must be period during week after the abduction which opportunity prove un- that the host was the host was at least sometimes actions, appre- aware of the alter’s or did not possession baby. aware of her wrongfulness. ciate their This standard will open floodgates not to a host of “the devil strong enough I evidence is think made me it” do defenses. question it ais close whether a reasonable satisfy production by must her burden jury guilty could find a verdict not presenting credible evidence that she suffers Gidget, personality, the host on the (MPD), multiple personality from disorder psychiatrist defense. But the defendant’s such that a could find clear and testified MPD individuals tend to cover convincing proof the host alters, up the acts their if committed was not in control or did not understand the concealing evidence of the alters’ activities is quality wrongfulness nature and actually caused MPD then it too fits into alter’s actions. I defense. believe that this testi- principally may mony psychiatrist, I write to note that it not of the defendant’s taken prevail together testimony with her government be as difficult for the the host Judge Holloway’s opinion might suggest. personality Gidget part plan- had no in the McElvain; McEl Thornton H. activity, Mabel is of this carrying out ning McKelvey; vain, Jr.; Dorothy Edwin N. jury’s de- for the an issue enough to create McKelvey; McKelvey; Franklin R. L. termination. McMurry Compa McMahon; Oil W.R. Thus, I concur. Trust; Clay ny; Meredith Charitable W. Moncrief, as: Heirs named W.A. *23 deceased; Roy Moncrief, E. Mont W.A. representative personal gomery, deceased; Meredith, Clay of W. Estate Miller, as: the Heirs D. named Forrest deceased; Miller, L. Helen D. of Forrest Helen L. Miller, Heirs as: the named TRIBE, INDIAN UTE SOUTHERN Morrissey; deceased; Miller, Thomas S. Plaintiff-Appellant, Mosbacher; Morrissey; Emil Thomas J. Mosbacher, III; Mos David Emil John Mosbacher; Myra bacher; Bruce R. COMPANY; PRODUCTION AMOCO Moulds; Oil Cor North Central Theresa Ashworth; Adams; Henry Shirley K. Onofrio; Oliver; poration; Clara H.L. Aspaas; Helen Aspaas; Eric K. M. Carla Payne, Pargin; Margaret F. C. Harold Aspaas; Leta Aspaas; Belle Laura Ruth Penrose; Jr.; M. Peter Ben Neville G. Adkins; Maxwell C. Adkins; Rita M. M. Petrocco; Phillips son, Jr.; Frederick Barker; C. Anderson; Maurice Earl A. Ray Company; M. James Petroleum Maurice Breen, Heirs of as: the named Rennie, mond; named as: W.E. deceased; Breen, F. Buchan Horace C. deceased; Rennie, Thom Heirs of W.E. Bu an, Heirs Horace as: the named Smullyen; Romolo; Benton E. as C. George Bugg; deceased; Car chanan, A. Stirling; Smullyen; I. William Clinton Company; Car Jack Investment bone Tatum, of J.L. as: the Heirs named J.L. Carmack; Joseph C. mack; Rowland Tomeo; deceased; Tatum, Anna Carleo Clark; Kemp Ciancio; Colora William Securities; Tomeo; Rich Turner Ernest Trust; Bank, George Veto National do Vance, Turner, Sr.; George C. ard W. Longmont, Bank of National Colorado George C. Heirs of as: named Frazzini; Gladys Doro N. conservator Veto; deceased; Anthony Vance, Jo H. Cox, Kelly as: the thy named Corgin; A. Zarlengo; Ware, Jr.; E. Albert seph F. deceased; Kelly Cox, A.B. Cros Heirs of all Anthony Zarlengo, Doe F. John Crosby; Crosby; David by; Barbara claiming persons an in unknown other Crow; Jr.; Margaret Crow, Manu John with located estate in the mineral terest Cummins; Frederick Cruz; M. el Louis T33N, R8W, in the section N/2 Eakes; Dickerson; Robert J.M. E. Colorado; County, N.M.P.M., Plata La Ellison; Eakes; Margaret McFerran Inc.; Gas, AMAX Oil & Bowen/Edwards Flaks; Etterbeck; Til Sally Minnie M. Inc.; Conoco, Re Associates, Inc.; Fuel Frost; Frazzini; Flaks; Adele lie Cassio Company; Mar Development sources Gallegos; Galbasin; Abel S. Robert Limited; Energy Partners kwest Goggans; Garnand; Ruby Montey Gibbs Corporation; Merid McKenzie Methane Hamilton; Simmons Hardin Christine Corporation; Inc.; Oil, Mobil Oil ian Harmon, as: University; named H.A. Refinery Associa Cooperative National Harmon, deceased; H.A. the Heirs Corporation; Pipeline tion; Northwest Harvey; McElvain Frances Catherine Company; Petro Palo Operating Pablo Company, as: named Oil & Gas Hondo Ventures; Inc.; Palo/Eagle leum, Joint Gas Oil & of Hondo shareholders Tiffany Petroleum, Inc.; Gas Richmond (dissolved); Hyde and Gas Company Oil Compa Company; Production Williams Kettering; Fidel Corporation; Charles Corpora ny; Petroleum Texas Malcomb; Union Lucero; Suzanne C. Richard company all oth- tion, McElvain; oil John Doe Manges; B. Catherine Heath