Willie Lee Pigee v. Thomas R. Israel and Bronson C. Lafollette
670 F.2d 690
7th Cir.
1982
Check Treatment

*1 prosecutor interrupted fers and stated presence PIGEE, Petitioner-Appellant, Govern- Willie Lee plea ment had fact offered him a bar- v.

gain. presence jury, Outside the R. C. Thomas ISRAEL and Bronson acknowledged sug- Government that it had LaFollette, Respondents-Appellees. gested plead guilty, he Jeffers that negotiations concerning there were no 81-1269, Nos. 81-1508. testify whether he would for the Govern- Appeals, United States ment. The court later instructed the Seventh Circuit. disregard any by anyone reference plea negotiations. Appellants King and Sept. 14, Argued claim that West this curative instruction 3, 1982. Decided Feb. prejudicial was insufficient to diminish the Rehearing Rehearing En and Banc comments, effect of Jeffers’ be- they which March Denied They lieve the precipitated. Government claim that the court’s failure to inform the concerning plea of all the details

negotiations between Jeffers and

Government reversible error. position

The trial court is in best prejudicial

evaluate effect a co-de

fendant’s outburst on the and decide

what, if any, curative instruction is neces

sary. Fleming, United 504 F.2d States case, (7th Cir. In this Moreover, given.

curative instruction was

we fail to see how Jeffers’ remark concern

ing whether he Government had any plea

entered negotiations into prejudiced King West. His out

burst made no reference to his co-defend way implied

ants and in no they engaged wrongdoing.

had in all Under case,

the circumstances of this we think the

trial any prejudice court’s instruction cured King West resulting from Jeffers’

comments. Dellinger, See United States

472 F.2d cert. See also United States Aviles, (2d Cir.), 274 F.2d

denied States, sub nom. Evola v. United

VI

For the reasons discussed in this opinion, judgment of the district court is

AFFIRMED. *2 Legal

Ben Assistance Kempinen, to Insti- Madison, Program, tutionalized Persons Wis., petitioner-appellant. for Heikenen, Gen., Atty. Chris Asst. Wis. Dept, Justice, LaFollette, C. Bronson Gen., Wis., Atty. Madison, respondents- for appellees. BAUER,

Before Circuit Judge, FAIR- CHILD, BAKER, Judge, and Senior Circuit District Judge.* FAIRCHILD, Judge. Senior Circuit This appeal raises of wheth- er, in a an case in which element of charged, instruction that “When there are no vent or rebut the the law pre- sumes that a all reasonable intends the natural and usual conse- quences of his acts” risks a viola- tion of the Amendment’s re- Fourteenth quirement prove every that a state element beyond of a criminal offense doubt, under We hold that in this did not create such risk. Therefore we affirm the court’s denial district for a writ request Petitioner’s of habeas corpus. charged Petitioner was with two murder, attempted arising

counts of out at the Marquis events which occurred Club Racine, Wisconsin, April A main issue whether the Peti- at trial was kill the two victims. tioner intended to * Baker, Judge Harold Honorable A. District nation. Illinois, sitting by desig- the Central District of Woodson, kill, Myrna Kennedy,

Alverest lacked intent thus Mr. Baker and Mrs. Walter arrived to him the burden of on the Marquis midnight. Shortly Club at about interpretation intent. Such thereafter, exchanged by comments were process principle would violate the due about Petitioner and Mr. Woodson is on the burden the state *3 pants” by Kennedy. “hot worn Mrs. charged beyond of the a rea- Winship, doubt. In Re sonable U.S. Mrs. Baker testified at trial that she no- 358, 1068, S.Ct. ticed the gun Petitioner had a under his also, Wilbur, 684, Mullaney U.S. urged trench companions coat and her to (1975); L.Ed.2d Moris- out, leave strug- the Club. On their way States, sette United U.S. S.Ct. gle ensued. 96 L.Ed. 288 Woodson, Mrs. Kennedy, Mr. and other inquiry The threshold is whether a rea- witnesses at testified trial that the Petition- interpreted sonable the in- er threatened to “blow” the brains out of struction an unconstitutional manner. Mr. Woodson and then did in fact shoot Sandstrom, supra, 442 U.S. at him. Mr. S.Ct. Woodson was shot twice Kennedy chest. Mrs. was shot once

arm. begin by recognizing problem, We as have, always

The (i.e., Petitioner admitted courts that state of mind the acts shoot- intent, ing but purpose, knowledge) denied he kill the mental intended to must victims circumstantially, by and in fact denied that intended he determined inference. to shoot all. them at testi- point have deemed it wise to out Petitioner Courts fied that him juries, Mr. Woodson problem they attacked to be too lest much pulled out gun, to by but determining per- troubled the task of Woodson, “bluff” intending Mr. not to evidence, fire state of direct son’s mind without the gun. usually specific without evidence aof person of the admission declaration him- Special A of the Agent Federal Bureau of self. Investigation testified that the Petitioner’s gun type was a which only by could be fired accordingly have juries Courts instructed depressing grip safety pulling particular that a state of mind can be in- trigger. Both actions must be taken each utterances, person’s from a acts and ferred time weapon is fired. fair, and that is rational and where a intent, determination must be made to The trial instructed the natural, person reason that a intends “When there are no pre- circumstances to probable, of his vent or rebut the Unfortunately, phrasing acts. courts sumes that a reasonable intends all proposition have used the “pre- often word and usual conse- “inferred,” sumed” instead quences leading of his deliberate The jury acts.” argument “presumed” that the word con- the Petitioner charge of the that a Woodson, disproved. *4 simply jury instruction told the that “the 2455; 442 U.S. at at S.Ct. presumes person a that intends the Court, County 157-158, supra, 442 U.S. at ordinary consequences of voluntary 99 S.Ct. at 2224-2226. a presumption Such Id. acts.” The Court was concerned that shifts production the burden of de the qualifying the lack of instructions as to the fendant that of the crime. legal might presumption effect the lead Sandstrom, supra, 442 at construe the instruction stat- ing presumption either a or conclusive Alternatively, re- presumption can type mandatory presumption which quire to find the elemental fact persuasion shifts the burden of to the de- unless the proves by defendant the contrary Id. fendant. “some quantum proof” greater than possible Both these interpretations of “some” evidence. Id. a presumption Such with effectively conflicted shifts the burden of overriding presumption the defendant on of the innocence that element of the crime. Id. of the accused with the state’s burden proving beyond.a reasonable doubt all Third, a “permissive presumption” Id., at charged. elements allows, require, but does not the jury to at 2459.3 Thus the instruction infer the elemental fact once convinced of posed a risk that Sandstrom was convicted facts, the basic places but no without due of law. process In Ulster proof of any kind on the defendant. Ulster Court, the trial instructed the 442 U.S. at jury that: S.Ct. at “presumption” 2224. This is techni all; cally provides Penal . . . that presumption merely not a “Our Law at is an presence in' any inference available to automobile of . . . assist factfind er, option, at his evaluating in the evid firearm which is presumptive is loaded ence.2 possession. evidence of unlawful [its] words, other Sandstrom, you may “In ... infer

In Supreme Court con- presumption cluded draw conclusion.. . . The that a reasonable could have interpreted ... so is only long is effective as there no instruction that contradicting stating Montana trial court as evidence the conclusion mandatory presumption, only by flowing rebuttable and the also, Wigmore, 1. presumption actually J. Evidence in at Trials conclusive is a conclu- (Chadbourn sion, permissive presumption Common Law 2492 § rev. and the is actual- McCormick’s ly permissible Handbook of the Law of Evi- . inference. (2nd dence ed. also, Morissette, at 3. See 2491; Wigmore, supra, McCormick, 2. at su- § 255; Mullaney, supra, 421 U.S. at pra, only presumption at 804 n. 31. The true mandatory presumption, then is the since merely presumption disappear presumes is when stated that said to “the law ” contradictory Thus,

such is adduced.” evidence intends . . . . the instruc- tion in presump- this case indicates U.S. at 99 S.Ct. at applied if decides Supreme Court concluded that no person.7 was a reasonable instruction Although significance, unconstitutional manner. minor we note The instructions as a made it whole clear that the instruction states that merely a permis- the law presumes an actor intends “the sive inference which knew it was ” Id., accept reject. 161-162, free to or contrast, (Emphasis added.) . ... S.Ct. 2226. Sandstrom states the law presumes ordinary intent from “the conse- The instruction on this case quences (Emphasis added.) . ...”8 substantially different from the instruction given in Sandstrom. The instruction con- only quali- instruction not tains qualifying language the crucial which key fies the with the language, lacking found Sand- “When there are no circumstances ...” strom. 442 atU.S. 99 S.Ct. at 2455. It Sandstrom, lacking goes also prefaced by phrase, “When there are state, further to “When there are no cir- ” ” no prevent circumstances to or rebut... . . cumstances . . . (Emphasis added.)

Furthermore, language apprises This *5 the jury may pre- that circumstances either consequences refers to the of “deliberate” presumption vent the use of the Sandstrom, acts. The at all re- Thus, presumption. jury ferred to the the consequences “voluntary” the acts.4 must the completely disregard presumption in the first instance if voluntary5 intended, A act is and not vent its use. our view this it to leaves merely an accident. A deliberate6 act is jury the presumption to decide whether the more; something it involves actions which is reasonable under the circumstances. Al- considered, are carefully a result as of some ternatively, jury may the consider the pre- prior weighing of the and their acts conse- sumption and then whether any decide cir- quences. The instruction in this case tells cumstances, by however or whomever jury the may that intent be proved, defeat the presumption. The choice deliberate acts. The must first deter- belongs jury. mine whether the acts defendant’s were deliberate, based the evidence. Unless inquiry us before under Sand the jury performed finds that defendant a strom is whether a reasonable act, natural, probable, and have interpreted given the instruction usual of which would be the this case ain manner which would violate killing another, presumption does not process. due That is a federal arise. to which we are not bound Wisconsin Additionally, challenged instruction Court’s determination Muller states presumes State, that “the law rea- 94 Wis.2d 289 N.W.2d (1980), ” sonable . (Emphasis intends . .. that an instruction identical the instruc added.) The instruction in mandatory Sandstrom tion here stated State, 595, 618, id., 4. See Genova 91 Wis.2d 6. (Ct.App.1979). N.W.2d But see State, 450, 478-479, Muller v. Accord, Wis.2d Genova, supra, 7. Wis.2d at (1980) (Abrahamson, J., N.W.2d Muller, dis- N.W.2d at 493. But see senting). 478-479, (Abra- Wis.2d at at 584 N.W.2d J., hamson, dissenting). Dictionary (5th-ed. 5. See Black’s Law at 1413 See footnote reject judge instructed the We therefore Petition- presumption. all, found, be if at from his “must We

er’s contention on score. think statements, acts, words, any, if bear- his his in this case You cannot look into a ing on a reasonable as stat- out his intent.” The man’s mind to find inference, ing permissive no more than evi- jury was also told “scrutinize the only available if there are no circumstances caution, with utmost care and dence prevent £o or rebut it. reason, judgment, . .. and act with ... ” . . prudence, and discrimination. . assuming But even that a view might in the chal Finally, judge explained that “[t]he lenged mandatory, requiring required defendant is not his inno- to find intent unless proving cence. The burden of the defend- contrary, pre offers evidence to the ant the crime upon sumption imposes charged state.” extremely at most an low production on the defendant. He challenge requires Petitioner’s also can rebut the with any evi strength us to evaluate the the connec presump dence of circumstances. The basic tion between the and elemental facts applies only when no circumstances involved in the inference of in exist Consequently, or rebut it. Court, tent. Ulster impact on the greater no than upheld, at 2224. To be inference, permissive and we properly only pass instruction must first test analyze it as such. Ulster interpret jury might of how reasonable supra, 442 U.S. at 158n. 99 S.Ct. at 2226 inference, pass also but must n. 16. test: permissive second A inference is valid as long as there is a rational connection analyzed We have so far facts between basic elemental in isolation from the other Id., fact. given by instructions the trial in this Thus, 2227.10 we must determine whether Any case. question, conceivable however *6 (intent kill) the inferred fact to is more remote, that jury might the have had re- likely than not flow the to from basic facts garding interpretation of the in- defendant, (deliberate acts the the of natu struction was removed these other in- ral, probable, consequence of structions.9 another). Id., 165, which is the death of instructions, whole, viewed aas em- 99 S.Ct. phasized that the state must all ele- case, applied this the As facts of beyond ments of reasonable permissive entirely inference of intent The jury doubt. was told that offense persons rational. The Petitioner shot two required acts unequivo- which “demonstrate as a result struggle of a bar. If the cally under all the circumstances that he found, evidence, jury based on all of to, intended and would have killed . . . ex- that shooting the Petitioner’s acts of were cept for the intervention of another deliberate, jury then could reason- ” or some other extraneous factor . ... ably inferred that the Petitioner intended The judge explained further unequivo- natural, probable, usual conse- cally means “that no other inference or quences of such shooting, to kill victims. conclusion can reasonably fairly hand, On the other was not told drawn from the defendant’s acts under it could infer intent to kill from the circumstances. .. . acts which were not deliberate. Accord, also, States, 463, Duckworth, Jacks v. 651 F.2d 10. Tot v. United 480 319 U.S. (7th 1981), denied, 1241, 467, 1244, (1943); Cir. cert. 50 U.S.L.W. 3547 63 1519 87 L.Ed. 11, (Jan. 1982); Tecumseh, States, Leary United States v. 630 v. United 395 U.S. 89 S.Ct. denied, 961, (10th 1548, Cir.), 1532, F.2d 749 cert. L.Ed.2d 376, 101 S.Ct. Our conclusion that deliberateness of Petitioner’s acts this question

was a of fact for the to de- pose impermis- case does not risk decided, cide. Once the inference of intent unnecessary any sible in renders Sandstrom was available for their use.11 of whether consideration applied retroactively. Sandstrom should be is in Our decision this case accord with observe, however, sweeping We ap- the recent decision of this court in Jacks plication the doctrine in Sandstrom of Duckworth, (7th 1981), 651 F.2d 480 Cir. greater provide reason to limit the denied, 11, (Jan. cert. U.S.L.W. Jacks, prospective application, doctrine for the court, clearly in a more then appear Sandstrom would trial Indiana was that “every one is intend pro- the natu have been intended to constitute a ral against of his volun phylactic risk acts, tary unless the are circumstances such proof burden defendants.13 Sand- as to indicate absence such intent.” strom plethora has led to a cases chal- Id., at 491. This court held that the in lenging variety of instructions as struction, which was similar to the instruc the Due Clause of violations of Process us, before was Fourteenth Amendment.14 Wisconsin alone valid. A reasonable could have challenging has had cases numerous instruc- interpreted the as stating per “presumption” tions which state a of in- Id., missive inference. at 485-486. federal, judges, tent.15 Trial both state and “pre- would be wise in the future to avoid As apparent, interpret we do not Sand- area, sumption” language in strom favor of holding unconstitutional in- language pointing out inferences phrased presuming struction which can intent from Rather, permissibly conduct.12 be drawn conduct and em- degree phasis prosecution’s concerned with the of risk on the at all improper interpretation prove guilt beyond posed by the use of times to a reasonable such language. doubt.16 jury acquitted (6th Cir.), denied, 11. The fact that the cert. Petition- U.S. attempted (1980); er on one the two counts 66 L.Ed.2d mur- United States (1st Cir.), Ciampaglia, der is at least some indication of how the 628 F.2d 632 cert. denied, could have utilized the instruction on U.S. 66 L.Ed.2d hand, Solem, (1980); (8th On the one Bonnett have found F.2d 125 shooting Cir.), the Petitioner’s acts of were de- liberate, (1981); Ross, indicated United States v. (9th that he lacked intent to kill one of the two. On F.2d 77 Cir. United States v. hand, Ogle, the other found that 613 F.2d cert. de regard nied, *7 acts Petitioner’s with to one victim 449 U.S. 101 S.Ct. 66 L.Ed.2d 28 entirely by recklessness, (1980); Muncy, (4th were accident or v. F.2d and Baker 619 327 Cir. County thus were not See deliberate. Ulster Court, 23, supra, 442 U.S. at 162 n. 99 S.Ct. at 2227 n. 23. Genova, See, Muller, supra; e.g., supra; 15. Ad- State, 875, ams v. 92 Wis.2d 289 N.W.2d 318 Indeed, 12. Court confirms this (Ct.App.1980); Department Dreske v. of Health interpretation of Sandstrom. Services, (E.D. F.Supp. and Social 483 783 Wis. Israel, 1980); F.Supp. (E.D. v. Ross 503 131 Accord, Jacks, supra, 13. F.2d at 651 Unit 486; Israel, Wis.1980); F.Supp. Muller v. 510 730 961, Spiegel, (5th ed v. States 604 F.2d 969 Cir. Israel, (E.D. F.Supp. Wis. Austin v. 516 935, 446 U.S. (E.D.Wis.1981); Israel, 461 515 Harris 2151, (but, (1980) issue of retro- Israel, F.Supp. (E.D.Wis.1981); Hoppe v. activity of Sandstrom not was raised in the (E.D.Wis.1981); F.Supp. 965 Shumate v. petition certiorari). Berg for Burton v. Cf. Cty. F.Supp. Circuit Milwaukee (E.D.Wis.1981). man, 428, 1981), petition 649 F.2d cert, filed, August for (issue No. 81-310 retroactivity of Sandstrom has been Jacks, 486; Accord, F.2d at Mul- presented petition certiorari). in ler, 490, supra, Wis.2d 289 N.W.2d at 590 See, Jacks, Genova, e.g., supra; Spiegel, supra; J., dissenting); (Abrahamson, Tec- umseh, supra; Perini, Krzeminski v. F.2d 91 Wis.2d at 283 N.W.2d 495. We note do, Concluding, to as we existence kill. That re- posed misplaced. on intent instruction no risk that liance is satisfy conviction failed to Petitioner’s being Rather than lan- qualifying crucial requirement Fourteenth Amendment’s guage that saves the instruction from an a state prove every element of a criminal impact, prefatory unconstitutional lan- doubt, offense we AF- beyond reasonable there no guage, “When are judgment FIRM the of the district court prevent to or rebut ...” condemns denying request Petitioner’s for writ possible instruction and makes the untena- corpus. of habeas interpretation ble that the defendant must AFFIRMED. disprove meaning intent. The common word, “rebut,” understanding of the is “re- BAKER, Judge, dissenting. District “disprove.” or fute” Webster’s New Colle- Dictionary giate I respectfully opin- I am dissent. not instructed that the existence of the

ion that majority decision is in collision basic not automatically trigger facts did Montana, with Sandstrom v. 442 U.S. require the defendant to (1979) it. was left to its own giving speculations point. on that See also Ulster deprived this petitioner right of his to process due of law. n. 2226 n. 60 L.Ed.2d I.

With exception the introductory consequences to reference “de- clause, “When no there are circumstances to liberate acts” is offset sen- second presumption,” which, or rebut the and the tence in instruction words, acts,” substitution of the “deliberate explaining pre- what basic facts lead to the words, acts,” for the “voluntary fact, distinguish the instruc- sumed makes no effort to tion condemned in Sandstrom and the in- between deliberate and voluntary acts. virtually Moreover, struction are here the same.1 The definition no of “deliberate” was majority introductory relies on the clause given attempt to the and no was made word, “deliberate,” and the to decide the trial distinguish to between jurors conclude that voluntary acts and acts as done the element of intent was to be majority opinion. Petitioner’s or that it disprove fell the defendant Appendix (trial charge).2 at 130-53 court’s Jury instructed, the Uniform Instructions 1. The in Sandstrom was Committee “[t]he proposed presumes person in Wisconsin an alternative to that a intends ordi- nary consequences voluntary this of his acts.” case. This proposed pertinent part: U.S. at reads Pigee 2453. The was instruct- Intent kill must be found as a before fact ed, pre- “When there are no circumstances you can find the defendant of first vent or rebut the law degree per- murder. You cannot look into person all sumes that a reasonable intends may son’s mind to find out his You directly indirectly determine such intent deliberate acts. If one another assaults concerning from all the facts in evidence violently likely dangerous weapon, with a offense. You consider statements *8 kill, then when there are no circumstances or conduct of the defendant which indicate presumption, legal or rebut may of mind. state You find kill intent to presumption intend- is that death was or such statements You conduct. are Appendix ed.” Petitioner’s at 135-36. judges you the sole of the facts and must not you find the defendant are unless satis- 2. The of has no “deliberate” character the act beyond fied a reasonable doubt that the de- bearing on effect to be the evidentia fendant intended to kill. ry goes only device but to the rational connec Jury Committee, Uniform Instructions Instruc- tion test. Sandstrom v. 442 U.S. at tion 1100. n.1, (Montana 512 99 S.Ct. at 2453 n.1 defined “deliberate homicide” as criminal homicide

698 jurors If in the fatal flaw in the the instruc- Sandstrom reasons,

struction, majority as the was the Id. tion. failure how to tell the majority says, I am sure that it The rebutted, was to be how that then flaw true, jurors is that whether nothing, remedied here? There is interpret would of explanation, word in the trial court’s raising permissive inference is feder- charge as to how the presumption intent al question, and decision the Wiscon- satisfy is to rebutted or how it could State, Supreme sin v. Court in Muller of proving State’s burden the element of (1980) Wis.2d 289 N.W.2d 570 that the Compare intent. that to the instructions on mandatory presumption states possession Ulster binding is not this court. 140, 160-61 v. U.S. determining possible In interpretation nn.19, nn.19, jurors might afford the is (1979) judge meticulously where the trial conflicting incongruous to overlook deci- explained pre the use and effect of the sions of that courts have considered the sumption jury, pre and also “The told instruction. See also id. 99 S.Ct. at sumption ... need not be rebutted af proof firmative or affirmative evidence but by any be rebutted or evidence lack of The Court of Wisconsin divid evidence in the question appellate case.” bal ed on the are ance of State, instructions made clear that courts of that state. See Muller v. permissive instruction raised a Wis.2d 450 at N.W.2d 570 at 584 accept inference that the jury could or re (Abrahamson, (1980) dissenting). J. The in ject as it saw fit. That not the case here. struction has been held unconstitutional and in conflict with Sandstrom Drinkwater v. In this instructions viewed over- Gagnon, F.Supp. (E.D.Wis.1981); all outline the attempted two elements of Israel, F.Supp. (E.D.Wis. v. Austin First, murder under Wisconsin law. Israel, Boyer v. F.Supp. kill, and, second, the defendant intended (E.D.Wis.1981); Israel, Harris defendant committed acts which (E.D.Wis.1981). F.Supp. 568 The instruc unequivocally demonstrate tion has been held constitutional and not in except have killed intervention of Israel, Hoppe conflict with other say factors. instructions that the F.Supp. (E.D.Wis.1981); State must each the elements but Shumate say then Milwaukee first element intent is Circuit proved from (E.D.Wis.1981). circumstances and that the F.Supp. judges presumes intent from certain circumstances agree the Wisconsin courts cannot unani unless the presumption is rebutted. Since mously as to the effect of the the common meaning is to refute instruction, neither can the federal district disprove, possible or interpretation jurors judges of the Eastern District of Wisconsin. could draw is law required lay persons, How then will twelve most if to be from the circumstances of not all of having whom are their initial the shooting and that the fell upon law, experience with the arrive at a unani disprove and constitutionally acceptable mous inter n.7, Montana, 442 Sandstrom v. at 518 pretation of the instruction? 99 S.Ct. at 2456 n.7. II. whether a defendant has rights been accorded his If constitutional de- here is like pends upon way reasonably which reasonable Sandstrom and could be inter- “purposefully knowingly.”); ‘voluntary’ committed ‘deliberate’ and the context of State, n.1, presumption.”) (Abrahamson, Muller v. 94 Wis.2d 450 at 478 J. dissent- *9 (1980) (“There ing).

N.W.2d 570 at 584 n.1 is also no meaning distinction between words preted the burden of case, on element of the then it should UNITED STATES of America ex rel. necessary not be to evaluate the rational Sylvester HENDERSON,

connection between the basic facts and the Petitioner-Appellant, elemental fact. generally 442 U.S. 99 S.Ct. (1979). But see MORRIS, Warden, Ernest E. 140, 166-67, Court 442 U.S. Respondent-Appellee. However, pointed it should be out that the No. 80-1811.

statement majority decision on the Appeals, United States that, rational connection “the was not Seventh Circuit. told that it could infer intent to kill from deliberate,” acts which were open Argued Jan. debate. The second sentence of chal- lenged instruction, already as has been not- Feb. Decided ed, specific refers to acts which sup- port the presumption without denominating

those voluntary. acts as I agree

Nor can majority deci Duckworth,

sion is in accord with Jacks v. denied,

651 F.2d 480 (January

U.S.L.W. 3533 Jacks, C),

F.2d at (Appendix significant has

differences

in this case. The Jacks instruction did not language

use the concerning used here

rebuttal of the of intent which effectively shifted the burden of

proof to the defendant on the issue of in-

tent. Jacks did not involve the confusion of

deliberate acts as opposed voluntary acts

which is Pigee found in the instruction.

Finally, I would observe that we are deal-

ing with the concept fundamental that due

process protects a against convic- except upon proof by government

beyond a reasonable doubt of

of the crime with charged. which he is

re Winship, Where there is rational

foundation to possibility that due proc-

ess here, has been as there is we

should insist strict adherence to the con-

cept.

I would grant reverse and writ. that he notes fact exists unless attempted to murder not guilty as to Mrs. He Kennedy. has identified Court twenty years sentenced to prison. types presumptions three of an element The district court denied the Petitioner’s Sandstrom, supra, of the crime. and Ulster request a writ habeas corpus, finding Court v. U.S. that no could have inter- (1979). First, S.Ct. preted the instruction on intent in un- presumption” technically “conclusive constitutional manner. all, at but is rather an irre The Petitioner contends in direction the court to find the buttable struction could been interpreted by fact elemental once convinced basic require triggering presumption. Petitioner to facts Sand- strom, proof to the supra, contrary by some quantum U.S. at evidence, 2455.1 proof' greater than “some” thus Second, a “mandatory presumption” that element of the crime. requires to find the elemental fact 517, 99 at 2455. The once triggering convinced the basic facts further decided that the instruction could the presumption, unless the defendant of even have been stating Sandstrom, contrary. fers evidence presumption. conclusive Id. 442 U.S. at A mandatory presumption can be subdivided The fatal flaw in the instruction in Sand- into parts. two re can strom was was not told the quire to find the elemental fact presumption could be rebutted “some” unless the defendant offers “some” evi or by any evidence evidence at all. The Sandstrom, dence to contrary.