*1 finding was harmless. I required opin- thus concur The instructions (1) subjected my colleagues. to a ion of being McGowan (2) environment, timely noti- sexual hostile official of given Spencer

fication was (3) environment, Spencer hostile deliberate indifference toward exhibited remedying the hostile sexual environment

despite knowledge. its actual These are proper fact the elements to establish liabil- Davis, ity according to Davis. See Eugene GALL, Jr., Williams 119 S.Ct. 1661. The Petitioner-Appellant, Davis language difference between the v. jury and the instructions at issue was PARKER, Warden, Phil Respondent- of the term “deliberate indif- definition Appellee. ference.” essentially Deliberate indifference was 91-5502, Nos. 94-6376. defined the district court as aware Appeals, United States Court of part

ness on the of the Board that its Sixth Circuit. knowledge action or inaction based on its would, of the harassment with substantial Argued: Nov. subject certainty, the student to more Decided and Filed: Oct. Thus, correctly harm. the instructions Spencer concentrated on the actions of harassing on the student.

not actions Indeed, per these instructions would have if finding liability mitted a of no even continued, long harassment had so not act with Spencer did deliberate indif substantially ference. This is different the Davis formulation that a finding justified “only deliberate indifference is recipient’s response where the to the clearly harassment or lack un thereof is in light reasonable of the known circum Davis, 648, 119 stances.” U.S. at The district court’s summation of the therefore, liability, standard of was at least substantially accurate. See Clarksvitte- Montgomery County Sys. Sch. United Co., Gypsum

States F.2d (6th Cir.1991) (“A jury instruction which accuracy

states with the law substantial fairly jury submits the issues to the reversal.”). provide grounds will not Because the instructions “no ten- showed

dency to confuse or mislead law,” respect applicable principles id., I any conclude that error in the district

court’s definition of deliberate indifference

OPINION JONES,

NATHANIEL R. Circuit Judge.

Petitioner-Appellant Eugene Gall (“Gall”) appeals the denial of his petition, for corpus habeas challenging his convic- tion and sentence death rape and murder of a young girl in 1978. There is little doubt that Gall committed the acts in question. Instead, the central issue con- tested at trial was his mental state at the time of the killing. The case is further complicated by the numerous errors of n constitutional magnitude that Gall claims occurred during trial appeal, and as well as long-standing confusion regard- ing the meaning and role of extreme emo- tional disturbance Kentucky law. We trial, conclude that Gall’s conviction and appeal contravened fundamental constitu- tional are tenets. We therefore compelled to REVERSE the district court’s denial of habeas relief and REMAND for a condi- tional granting of the writ.

OVERVIEW

Edward Monahan (argued C. and This is tragic indeed a case. pri- briefed), Erwin W. (argued mary Lewis and that a tragedy young girl’s life was briefed), Advocate, Asst. Depart- Public taken in the most cruel and grisly fashion. Frankfort, KY, ment of Advocacy, Public It is also evident that Eugene Gall was the for Petitioner-Appellant. man who cut her life short. And naturally, the death culpability engen- and Gall’s Salven, Counsel, Valerie L. General De- dered an understandably outraged and an- Claims, partment Frankfort, of Workers’ gry public well prosecution as a deter- KY, Sexton, Gen., David A. Asst. Attorney situations, mined to convict. In these it is Frankfort, KY, (briefed), Ian Sonego G. duty a court’s to ensure that amid Gen., Attorney Asst. Rickie L. Pearson tragedy, anger outrage and over hideous briefed), (argued Gen., and Asst. Attorney perpetrated, acts a fair and constitutional Chandler, III, A.B. Attorney General, place. trial takes Constitutionally fair tri- Frankfort, KY, for Respondent-Appellee. als do not whenever judge, jury occur litigants go through pro- the formal MARTIN, Judge; Before: Chief presenting cess of arguments and examin- GUY, JONES Judges. Circuit ing For a trial to witnesses. be constitu- JONES, J., NATHANIEL R. delivered tionally requires sound far more: it is opinion court, of the in which prosecutor BOYCE trial where prove must all MARTIN, JR., J., F. joined. C. RALPH beyond elements of a crime a reasonable JR., GUY, 337-47), B. J. (pp. convict; delivered doubt order to pros- where the separate opinion concurring part ecutor adheres to certain rules of conduct dissenting in part. guarantee a proper fair trial and central issue. the trial’s crime became theories defendant’s consideration 30, 1978, jury found September evidence; jurors On where supporting engaged in murder guilty of while par- adduced evidence consider Finding mitigat- no rape. commission op- had an has a defendant and that ties circumstances, jury recommended ing rebut; a defendant and where

portunity 2, and the penalty on October adverse death right to cross-examine enjoys accordingly judgment entered trial im- contemplates state When a witnesses. *13 6. on October a constitution- penalty, the ultimate posing procedures jury selection requires trial al on the conviction directly appealed Gall to a jury predisposed seating a avoid Kentucky Su grounds, but numerous sentence, each indi- also allows and death See his conviction. affirmed preme Court any mitigating juror give effect vidual Commonwealth, (Ky. 607 S.W.2d v. Gall issues then that the It follows evidence. I). 1980) (Gall a petition for writ summary themselves do not lend raised 9, March 1981. was on certiorari denied treatment. 989, 101 Kentucky, v. Gall See (1981). 1529, Gall 67 L.Ed.2d reviewing each of painstakingly

After relief sought post-conviction subsequently trial the extensive raised and issues motion, 11.42 through a RCr court state rele- record, examining the minutely and Court denied Kentucky Supreme but the authorities, with agree we governing vant relief. See claims for his various collateral The errors occurred. that substantial Gall Commonwealth, (Ky.1985) 702 S.W.2d 37 Gall trial that treat we key issues contested II). (G 1986, July Gall filed condition, and mental all below involved Gall’s with the District corpus petition habeas competent to he was specifically whether Kentucky, the Eastern District Court of trial, legally insane he was whether stand assignments of error. twenty-five raising crime, whether he and at the time of the pe recommended that magistrate The emotional disturbance under extreme 23, dismissed, January on and tition be the crime. he committed Unfortu- when petition. denied the the district court circum- array complicating nately, an 19, 1991, district court de On March actions, own publicity, Gall’s high stances— to alter or amend motion nied Gall’s mistakes, prosecu- overzealous trial this denial judgment. appealed Gall inexcusable torial tactics combined April advocacy at defense oversights, poor and errors into stages various —introduced B. penalty phases and of Gall’s guilt both the in the trial, appeal direct provided as well as his Kentucky Supreme into The reject a num- Although we courts. at issue: state account of the facts a detailed we find arguments, some ber of Gall’s April 7:35 a.m. on about At sufficiently egre- to have been the errors Jansen, schoolgirl, 12-year-old Lisa constitu- fundamental gious so as to violate Cincinnati, her home suburban left rights protections. tional very Ohio, missed for school. She was

shortly thereafter she failed when a friend she had I. at the home of arrive and it was way meet on the planned to A. di- gone that she had not ascertained m. about 9:25 a. County rectly to school. At Boone April On Puckett, while morning Mrs. Connie rape grand jury indicted Gall along Kentucky driving her automobile two-phase In a of Lisa murder Jansen. Verona, Kentucky, to- Highway 16 from trial, consid- presented the Commonwealth Walton, Kentucky, ward her home committed the evidence that Gall erable jacket lying on the side of a red time of noticed killing, state at the so Gall’smental highway followed, near the intersection of Ste- around and and then Troop- Road. phenson-Mill stopped She and re- er Gary Carey, alighted who had it, thinking probably trieved it be- his cruiser and was attempting to block longed to one of the attending students the highway. Carey As signaled the the elementary school at Verona. She halt, driver to once, him shot got positive jacket that the had not been out of the Ford and him again, shot passed there when she place same then sped onward with Whelan empty- few minutes earlier way on her to Vero- ing gun into the rear of the fleeing na. Upon resuming trip her homeward car. immediately Almost other police open she observed an lying schoolbook chase, officers took up the and Gall was road, stopped picked it up. It finally brought to bay when attempt- Jansen, bore name of Lisa and when ed to a U-turn in make the town Dry Mrs. Puckett arrived back in Walton she Ridge and one of troopers rammed telephoned the school at Verona. *14 his cruiser into the Ford. The .357 re- principal school advised her that no one volver lying on was the floor of the by the name of Lisa Jansen was enrolled Ford. Also on the floorboard of the Ford there, but later in the day he back called automobile the officer found a cigar box and told Mrs. Puckett that a television $112.88, and money taken at the reported had a newscast Lisa as Jansen store in Gardnersville. missing. Mrs. then Gall the fur- reported Puckett had her discovery jacket of the and school- ther sum of on person. his $42.84 Sub- police. book to the Cincinnati sequent laboratory tests established that distance from The Lisa’s home Ohio a bullet removed from Trooper Carey’s to Kentucky at state line Cincinnati person had been fired from the revolver miles, was 10.9 and from the state line found in Gall’s automobile. southward via Interstate 75 to the place Shortly Gall, following his by arrest near Stephenson-Mill Road where her record, reason of police his became a

body was found the next morning is 22.6 suspect connection with disap- Hillsboro, Ohio, miles. Gall resided at pearance of Lisa Jansen. In 1970 he about 45 miles the other side of the charged had been with several of counts Jansen home. rape robbery and armed in southern At about 10:15 a. m. April on Ohio, had mentally been found incompe- a man later identified the appellant, trial, tent to stand and spent had some Gall, entered a small grocery store at 19 months in a mental at institution Gardnersville, village crossroads of Lima, Ohio, after which he by public miles or so entered roads from the (which vicinity plea Stephenson-Mill guilty of to charges those and spent Road a loop leading consists of off years and then five penitentiary in a state at Leb- 16), Highway back to and robbed anon, years Ohio. He was 31 age at storekeeper and her at customers the time of Lisa Jansen’s murder. point .357-gauge of a magnum stainless- I, Gall S.W.2d 100-01. After his steel revolver. The who storekeeper, trial, throughout arrest and Gall indi-

was type familiar with this weapon, cated to his lawyers and doctors that he observed from the exposed portions of block, chase, remembered the road car magazine it was loaded with shooting trooper. Yet he state claimed hollow-point cartridges. As soon as the that he could recall his actions left, telephoned robber she the local whereabouts much morning pri- headquarters Kentucky Po- State or to period those incidents. The reported lice covered the incident. Within a purported matter of minutes his amnesia coincided Gall encountered Whelan, Detective Joe killing. who turned the time of Lisa Jansen’s joint attempt assess mony described C. claim of amnesia. veracity of Gall’s as- challenges numerous Because Gall the re- attempted perform they When trial, detail we will describe pects his refused, claiming he procedure, Gall quired that pro- elements of important the most hearing, of war. After prisoner arguments. addressing his ceeding before Gall, finding issued an order the trial court trial. competent stand 1. competency question The 13, 1978, the trial court September On repeatedly through- emerged trial stand hearing on Gall’s pre-trial another held the trial it- pre-trial proceedings out stated again Dr. Noelker competence. arraigned day after Gall was self. definitely competent and that Gall “was indicted, appointed Dr. the trial court every that I have on occasion has been Noelker, psychologist, a clinical Robert noted, He howev- him.” J.A. 904. seen trial. competence to stand assess Gall’s er, together” and “more that Gall was “less hired Simultaneously, the Commonwealth than he had been on recent visits anxious” Chutkow, to deter- psychiatrist, Dr. Lee at 904. previously. J.A. Dr. Noelk- legal competence. mine Gall’s 23, 1978, after several September On April examined Gall er first dire, informed the trial days of voir court, by the appointment

After to “take a judge that he desired up to examine and observe Gall continued *15 in defense as far as [his] more active role Dr. the fall trial. throughout and cross-examining [ wit- questioning ] 30, 1978. April Gall on Chutkow examined hearing at 635. In a outside nesses.” J.A. on presented his views Dr. Noelker stated that he jury’s presence, Gall of hearing May on competence at a Gall’s jeopardize he would his insani- understood First, reported Dr. Noelker 1978. in the trial. Dr. ty by taking part defense in- verbal intelligence tests showed Gall’s although he believed Noelker testified high “in the extreme end telligence be develop- competent, remained recent Gall development.” of J.A. at superior range primarily repre- desire to Gall’s ments — showed Gall to be “a 872. Other tests “very bringing sent himself—were Gall disturbed, emotionally disturbed severely inability due to an incompetency close” to individual,” “schizophrenic a severe rationally preparing in to “assist counsel type” personality disorder —the paranoid at carrying out his own defense.” J.A. psychological disorder most severe 910. J.A. at 873-74. Never- diagnosed. can be trial, Dr. theless, observing behavior at concluded that due to Gall’s Dr. Noelker On disorder, counsel that he be- from his he was Noelker notified Gall’s remission Gall’s (sic) longer competent. The that he was lieved Gall was no “absolutely convenced” hearing, again court once called a trial. at 875. At trial competent to stand J.A. Dr. that Gall was Dr. that where Noelker testified hearing, Noelker also testified rationally longer “capable participat- no claimed to have no recollection of his Gall assisting his ing time of the murder. He in his own defense activity at the and/or conducting attorneys preparing rare in further stated that such amnesia is concluded that defense.” J.A. at 915. He personality type, disorders of Gall’s but himself from this yet disassociated “ha[d] that he had not concluded whether Gall Gall in it much peri- participating for the trial and [] had been an amnesic state Defendant,” attorney than the more as the question. od Commonwealth appearance reports by adding Dr. at placed into evidence two J.A. “deceiving.” at Chutkow, competence was J.A. also concluded that he was who an “excellent” abili- Although Dr. he had legally competent. J.A. at 1537. Both 918. taking proceedings understand the report ty Chutkow’s and Dr. Noelker’s testi- place potential nylon carpet and the seriousness of their red fibers from the car Gall consequences, he did not them “appreciate driving matching nylon the red fibers relative himself’ because he now be- found on the victim’s clothing; matching attorney. lieved he was a defense at J.A. tire tracks from Gall’s car and the tracks 921. Recent psychological tests confirmed taken the area where the victim’s finding incompetence, this Dr. Noelker recovered; body was matching blood type stated. between the semen stains on the front seat petitioner’s car and the samples from At hearing, explained this body; victim’s a matching hair and judge trial that he did not agree with his type blood between a long hair recovered “insanity only” counsel’s strategy, defense from Gall’s car and the victim’s hair. requested that the trial continue. He approach believed best trial was to 3. challenge circumstantial evidence him, against creating a reasonable doubt evidence, Due to strong this insanity guilt. as to his J.A. at 930. The trial defense and Gall’s claim that he was under judge tentatively concluded that Gall was an extreme emotional disturbance at the “extremely capable assisting his coun- time of the killing emerged as critical as- Nevertheless, sel.” J.A. he or- pects of the trial. Dr. Noelker testified dered another psychiatrist to examine Gall before the legally Gall was insane evening. April 5. Dr. Toppen, John psy- another chiatrist, reached the same conclusion Lanter, The following day, Dr. Kenneth deposition entered into evidence. The a psychiatrist, testified that he found Gall prosecution rebutted testimony by “normal” “participate and able to presenting a videotape and written tran- any degree [in] his defense.” at 842. J.A. script of Dr. testimony Chutkow’s regard- Specifically, Dr. Lanter found that Gall ing Gall’s mental Arresting condition. offi- appreciated legal his available defenses *16 eyewitnesses cers and also testified that defense); (including insanity under- appeared Gall calm and “normal” when stood the roles of the judge, lawyers and they during observed him and after the jurors trial; in the appreciated the serious- 10:15 a.m. robbery store in Gardnersville. of proceedings possible ness and penal- Because these assessments form a crucial him; against ties and exhibited above-av- part appeal, of Gall’s we will address them erage intelligence. J.A. at 841-46. After in detail. hearing testimony, this judge the trial once again concluded that “qualified Gall was First, Dr. Noelker testified before the mentally and emotionally,” “capable was of jury that psychotic Gall suffered from a assisting his counsel and able to [wa]s disorder —“the type most severe of person- participate in rationally his own defense.” ality disorder that we know.” at J.A. 956. at proceeded J.A. 853. The trial accord- Dr. psychotic Noelker testified that disor- ingly. ders of the type Gall suffered are “com-

monly characterized ... a loss of con- 2. reality[,] by tact with an inability to control below, As the district court delusions, found thinking, by one’s behavior or hallucinations, Commonwealth’s circumstantial evidence by grandiosity by inap- against Gall was “overwhelming.” J.A. at propriate affect of the circumstances he is 25. This evidence included: plac- evidence under.” J.A. at 956. Dr. Noelker reached ing Gall near the area where the victim’s his conclusion conducting personal after body was found around the Gall, time of the examinations and interviews ex- with murder; ballistics gun tests from Gall’s amining past his troubled and extensive matching the bullets recovered from history of mental (including illness Gall’s officer; bodies of police Jansen and the prior imprisonment and institutionaliza- 1211- at of the law. J.A. requirements of an assortment tion), performing that conducted firm out-of-state An tests. 12. test results of Gall’s a blind assessment of the Common- Testifying on behalf recommended finding, and his with agreed that he did wealth, stated Dr. Chutkow This medicine. administering psychotic from acute suffering was that Gall believe Noelker to conclude data led Dr. bevy of Dr. April 5. schizophrenia paranoid paranoid chronic from suffered that Gall at could also believed Chutkow he was at and that J.A. schizophrenia, require- comply his behavior times in likely to act dangerous extremely He at 321. stated the law. J.A. ments of environ- in an uncontrolled manner similar on Gall’s conclusions were based that these He further stated at 962. J.A. ment. 5 that he April of of the events account incurable, schizophrenia type of remembered, “[h]e which showed periodically only although Gall’s behavior realistically” and showed none thinking he is which] manner [in “the exhibited symptoms schizophrenia.” the “classical at this instance.” J.A. acting in accused Moreover, day of the on the 819. J.A. at repeated also Dr. Noelker 969-70. examination, nothing received “[Chutkow] to the trial court made he had observations schizophrenic him ... indicative exhibited the at trial behavior Gall’s ... after he have them nor did symptoms, commonly is [that] type of “disassociation jail.” at J.A. put arrested and he was at 978. schizophrenia.” J.A. found Further, Dr. Chutkow believed that 319. Dr. Noelker also history, Looking at Gall’s simply con- claim of amnesia was actual “blotted out his had that Gall found about to remain silent decision scious he had com- crimes knowledge” of sexual at his J.A 354. preceding hours arrest. his purport- consistent mitted case. J.A. 967-68. in this amnesia ed Dr. circumstances of Chut- peculiar The factors, Dr. Noelker Considering all these scrutiny. testimony warrant close kow’s “absolutely ques- no that he had testified clear Dr. Chutkow testi- The record sub- that Gall lacked mind” [his] tion open than in videotape fied rather conform conduct capacity to stantial showing any explanation without April the law on requirements prosecution provid- The was unavailable. he commit- criminal acts at 982. The J.A. absence, reason for Dr. Chutkow’s ed no personali- of a severe “the result were ted stat- appeal, for this argument oral at 982. severi- ty disturbance.” J.A. that it could not recall reason ed and destructiveness ty, permanence *17 live testimo- did not deliver Dr. Chutkow Dr. Noelker prompted also disorder Gall’s deposi- fact, gave the Dr. Chutkow ny. “never be allowed Gall recommend that in28 the same court- September on tion society [] member of free become place. took where the trial house at 970. J.A. again.” Furthermore, Dr. acknowl- Chutkow introduced into evi- Gall’s counsel also his 90-minute purpose edged that Toppen, of Dr. John deposition dence months before had of Gall examination Septem- Gall on psychiatrist who examined if Gall was simply to determine com- been Toppen Dr. 1978. concluded ber trial, if he and not to stand was petent paranoid type of a “schizophrenia had Gall at 1978. J.A. April on legally sane nature,” catego- he which chronic and stated at the trial As Dr. Chutkow himself “severe, of his certainly terms rized conducted deposition and a 1989 deposition 1207- to others.” J.A. at dangerousness brief, one-time petition, the for this habeas Toppen Dr. testified Gall further OS. compe- Gall’s in which he session assessed schizophrenic psychotic paranoid in a was way approximat- trial in no to stand tency rape and state when he committed intensity of and scope, duration 5, 1978, ed the and therefore killing April on person’s required to assess investigation conform his behavior capacity to lacked

283 (6th legal sanity. Cir.1999). Not Dr. only did Chutkow 171 F.3d 413 District investigated not believe he had sani- Gall’s findings upon fact based its review ty, he did not consider himself to have of state court records or written decisions testifying sanity. as to at been Gall’s J.A. plenary receive review. See Caldwell v. (“I 411 did not conduct an examination on Russell, (6th Cir.1999). 181 F.3d (“I 412, 413, sanity.”); his J.A. law, Determinations of federal or determi quite would have been aware if there awas nations involving questions mixed of fact question sanity, they about and didn’t ask law, receive de novo review. See (“I that.”); me really J.A. Mapes, 171 F.3d at 413. State court inter [sanity] aware that background was the of pretations of state law generally bind the the questioning.”); (stating J.A. at 426 reviewing Caldwell, federal court. See proper it “would not have been to make an F.3d at 735-36.2 opinion sanity”); on (stating his J.A. at 427 hearing’s purpose he believed the addressing Before merits

to determine competency); J.A. at 435-38 claims, his we examine whether Gall has insane).1 (denying that he stated Gall was remedies, exhausted his state which he Rather, purpose consistent with the of his gain must do to relief. habeas See Rust v. in April, examination Gall he believed Zent, (6th Cir.1994). 17 F.3d questions were at eliciting aimed his With one exception, presented trial, views on competency to stand Kentucky every courts with constitutional nothing more. claim that he raised before the district court and this Court. While Gall never

II. asserted state court the Confrontation This court reviews de novo a dis Clause claim that argued he has below and trict refusal grant court’s a writ Court, of before this agree we with the Com McQueen corpus. habeas See v. Scroggy, monwealth that he procedurally defaulted (6th Cir.1996). F.3d because, We on that cause, claim without he review the district findings court’s of fact failed to bring appeal either his direct for clear error. See id. Given the com postconviction or state petition. See infra. case, review, of this plexity our of necessi Because the requirement exhaustion “re ty, must explicit. Primary historical fers to remedies still available at the facts found “presumed state courts are ..., time of the petition federal it is satis and are only by correct rebuttable clear fied ‘if it is clear that petition [the habeas convincing Mapes Coyle, evidence.” er’s] claims are now procedurally barred deposition 1. The 1989 elaborated on Dr. Dr. Chutkow had testified have been testimony significant Chutkow's detail. Dr. assessing sanity. vital J.A. at 387-88. Chutkow "dialogue” concluded reflection, Upon Dr. Chutkow stated that a April Gall in 1978 "was sufficient for [deter- sanity full would have taken examination him mining] competency sanity.” not for but J.A. from two to four weeks. J.A. at 400. Fur- First, at 412. the vast described difference ther, Dr. Chutkow that his conclu- testified exams, competency sanity between both *18 sanity sions as to Gall's were not based on in the substance of the examinations and in (such prior psychiatric information as 364-385, length scope, their and J.A. at un- history) medical that is vital to such assess- derscoring inadequacy competency ments, because he never received that infor- determining exam he conducted in Gall’s san- until complete. mation after trial was (Indeed, ity. acknowledged using that J.A. at 397. competency sanity test to determine "would 426). proper.” not have been J.A. For 2. apply These standards of review because instance, typical while he testified that a sani- petition Gall filed his for habeas review before ty exam takes from six hours to hundreds of date, hours, 375, April 1996. After the new that review- J.A. at Dr. Chutkow testified that ing standards ushered in only he examined Gall for Antiterrorism 90 minutes. J.A. at 387; Act, Penalty fraction Effective Death of those-minutes were Pub.L. No. 5, 104-132, spent (1996), recounting April apply. events which 110 Stat. 1214 284 understanding Netherland, well as factual rational as Gray v. law.” [state]

under (quot him.” Id. 2074, against proceedings 152, 161, 135 116 S.Ct. 518 U.S. States, 402, 362 U.S. omitted); ing Dusky v. United (citation (1996) see L.Ed.2d 457 (1960)); 788, see 4 L.Ed.2d 824 that 80 S.Ct. Rust, (stating 160 F.3d at 17 also Ford, 566, 580 184 F.3d v. United States court state remedy “no exists” because (6th Cir.1999); Murphy, v. States claim, United ex- “no constitutional petitioner’s for Cir.1997). (6th 1199, Godi exists”). 1203 Thus, 107 F.3d has Gall problem haustion competence that level of clarified to nez available remedies all state exhausted is the same to waive counsel needed him. 509 U.S. at trial. See that needed stand v. 399, United States III. 113 S.Ct. 2680. Cf. Cir.1973) (6th Harlan, F.2d aspects of challenges a number Gall that “the test (rejecting contention trial. phase of his guilt be more plead guilty should competency to competency to than the test for stringent Legal Competence A. trial”). compe to this stand addition rights process due argues his Gall judge trial must also requirement, a tence compe- not he was because were violated of counsel is a defendant’s waiver find that trial, sufficient having lacked to stand tent Godinez, 509 voluntary. knowing and See pro- reality understand contact determi 2680. This U.S. at attorneys. cooperate with ceedings or defendant nation centers whether trial court argues further Gall significance actually understands him to by allowing process violated due decision and consequences particular of a himself trial. represent See id. the decision is uncoerced. whether determinations A state 2680; court’s see also at 401 n. 113 S.Ct. issue are entitled of a factual McDowell, on the merits F.2d v. United States correctness on federal presumption Cir.1987) to a (6th judge’s (stating Baal, review. See Demosthenes habeas right repre duty is to ensure that 731, 735, 110 S.Ct. 495 U.S. by the accused sent oneself “be asserted (1990). may A federal court ”). L.Ed.2d 762 There is no consti ‘eyes open’ with his unless not overturn such determinations a determi requirement that such tutional fairly sup they are not concludes hearing through a formal nation be made This record. See id. defer ported by the circuits, Rather, includ most inquiry. when a habeas court applies ential review circuit, ap a nonformalistie ing adopt determination reviews a state court’s sufficiency of the determining the proach, id. competence. See id. as a whole. See waiver from the record

at 249. 1. that the rec- argues The Commonwealth supports a conclusion Gall fairly ord supports the trial The record repre- trial to stand competent was competent judge’s conclusion that Gall agree. sent himself. We held a number of to stand trial. solely hearings devoted may separate A defendant criminal At competence. question of Gall’s competent. See Godi tried unless he is Dr. Dr. Noelker and Moran, 389, 396, May hearing, both nez v. legally (1993). concluded To be com Chutkow 125 L.Ed.2d 321 *19 issued an trial, and the trial court competent, have must petent defendant 13, at September to that effect. On ability to with order present “sufficient consult hearing, Dr. Noelker pre-trial another degree lawyer his reasonable competent. that Gall was again have “a testified understanding” rational and must September rep- after Gall asked to On stand trial also rendered competent Gall himself, resent Dr. again Noelker stated waive right Godinez, his to counsel. See decidedly that he believed—but less so— 397-98, 509 U.S. at 113 S.Ct. 2680. More- competent. Finally, that Gall was after over, the court labored to ensure that Gall begun, trial had Dr. Noelker informed made this pivotal choice knowingly and the trial court that he believed Gall was no voluntarily. After requested Gall permis- longer competent to trial due stand to a sion to questions witnesses, ask the trial relapse in Hearing his condition. this con- judge held a hearing with both Gall and clusion, judge questioned the trial Dr. counsel. Under questioning by judge, extensively. Noelker questioned He then Gall stated the following: that he realized Gall, discussing trial strategy inquir- and his was a murder trial and that “death is a ing why resisting Gall was the insanity case;” possible penalty in this that his discussions, defense. From these counsel explained had himto that his “tak- judge concluded: ing an part active trial very [the] could [M]y personal own assessment is that well trial;” resolve loosing [his] [sic] this Mr. Gall quite clearly has exhibited to that he understood “taking that his part

anme understanding of the nature and this trial very could be dangerous any the proceedings and the seriousness of defense” had; that he may have that he the proceedings my personal and belief understood that taking part in the trial extremely is he is capable of assist- was counter to the advice of his attorneys; ing his counsel. and that he understood that his counsel Nevertheless, defense, had raised an insanity J.A. at 936. judge or- and that participation dered an additional might examination the trial preju- Gall Dr. Lanter. Dr. dice that testified defense. Lanter the next J.A. at 636-37. After he, too, day that fully began, trial compe- judge found held another hearing tent to stand trial. J.A. at 840-53. outside the presence After jury. testimony, this the trial judge again, made his Once both counsel pros- defense and final decision that Gall competent: ecution questioned Gall about his compre- him, hension of the

Gentlemen, proceedings before having heard ... the testi- possible their consequences, mony Lanter, and the role of Doctor the testimony of of all persons Dr. Noelker involved. Gall then ex- testimony and course Gall, that his plained represent of Mr. decision to him- the Court is of opinion Defendant, Gall[,] disagreement self stemmed from a Mr. with his under- defense team as to trial very strategy, stands well the and that nature and conse- he considered himself quences him, capable as his proceedings against attorneys at qualified mentally examining witnesses. J.A. at emotionally 645-47, 657-59. capable hearing and is After this testi- assisting his counsel mony, judge participate and is able to concluded: rationally in his own defense. [M]y impression is that Mr. Gall’s choice ... charge decision to take of his own record, J.A. 853. From it is clear case is made intelligently compe- that the trial court the Dusky understood tently understandingly and know- competence standards for carefully en- ingly. certainly He has been advised of they sured that were met. Because its the possible consequences and I feel fairly conclusion is supported the rec- confident that he understands that. ord, we defer to it. J.A. Likewise, we hold that the trial

court undertook a satisfactory inquiry be again, Once we believe the record permitting fore Gall to serve as co-counsel shows that the trial properly ensured First, in his own defense. actually court’s de that Gall signifi- understood termination that competent Gall was to cance and consequences of his decision

286 851, 298, 330, 130 Delo, 115 S.Ct. 513 U.S. that his decision himself

represent (1995). mere existence Godinez, 401 L.Ed.2d 808 509 U.S. coerced. See not defeats to convict evidence court also of sufficient The trial 12, 113 S.Ct. 2680. n. id. claim. See petitioner’s “dangers and disadvan- warned Gall so that self-representation, tages of what that ‘he knows will establish

record choice is made doing and his is he is Winship, process due Under 422 California, Faretta v. open.’” eyes proves ev prosecution if the only satisfied 2525, 806, 835, 45 L.Ed.2d 95 S.Ct. U.S. beyond a offense charged of a ery element omitted). (citation (1975) Although 562 364, 90 U.S. at doubt. See 397 reasonable may not himself to represent decision 1068; v. New Jer also Apprendi see S.Ct. interest, the rec- in Gall’s best have been 2356, 2348, 147 466, 120 S.Ct. sey, U.S. 530 that Gall conclusion fairly supports the ord (2000) (stating reliance L.Ed.2d 435 choice, and to make that competent “ ‘re standard reasonable doubt on the voluntarily. knowingly and so he did way about the a profound judgment flectfs] jus be enforced in which law should Emotional of Extreme B. Absence Winship, 397 ’’(quoting tice administered’ Disturbance 1068). 361-62, While 90 S.Ct. U.S. at violated his conviction contends that Gall clear, the Winship is rule of fundamental U.S. Winship, In re process under 397 due complex: question is more logical prior (1970), 1068, 358, L.Ed.2d 25 368 90 S.Ct. question ingredient is whether did not estab- because Commonwealth offense, criminal element of the fact an doubt ele- beyond a one reasonable lish ele If it is such an Winship. implicating law. Kentucky murder under of ment ment, “may not shift the state then mur- argues he that to show Specifically, defendant.” Patter proof burden der, prove needed to the Commonwealth York, 197, 215, 97 v. New 432 U.S. son emotional distur- absence of extreme an (inter (1977) 2319, L.Ed.2d 281 53 S.Ct. beyond a reasonable doubt. bance 684, Wilbur, 421 U.S. Mullaney v. preting present- that the Commonwealth contends (1975)); 1881, 44 L.Ed.2d 508 95 S.Ct. element, no evidence on ed 449, 454 Jago, 637 F.2d also Carter v. see pro- therefore violated due his conviction Cir.1980) (“[0]nce (6th a’ the elements of Moreover, argues that when the cess. legislature, each are defined crime ar- rejected this Kentucky Supreme Court beyond a proven must be reason element I, process it violated due gument in Gall State.”). by the On the other able doubt on the proof shifting burden an hand, if of a crime not ingredient an disturbance. We of emotional element negate and does not the offense element of per- argument of Gall’s aspects find both not im element, generally Winship is an suasive. properly can shift and state law plicated, factor onto proving the burden reviewing appeal Patterson, 432 U.S. See an element defendant. jury’s finding on state factual (stating 53 L.Ed.2d offense, asks this Court charged all disprove affirmative need “whether, in the a state viewing after the evidence doubt); see beyond a reasonable prosecution, defenses most light favorable 231-35, Ohio, v. found also Martin of fact could have any rational trier (1987)(up- 94 L.Ed.2d beyond 107 S.Ct. essential of the crime elements prov shifting burden of law holding Ohio Virginia, v. a reasonable Jackson doubt.” self-defense, by Ohio long determined ing 307, 319, defense, onto (1979). an affirmative courts “[T]he L.Ed.2d 560 assessment McGhee, defendant); v. States United generally credibility of witnesses is Cir.1989) (con- (6th 1095, F.2d beyond Schlup scope of review.”

287 eluding possession statutory that because firearm lature’s definition of the of fense.”) (citation bearing pun- omitted). was a factor on the extent of course, And of ishment, and not an element of the we defer to state courts’ construction of crime, charged Winship implicat- was not those state laws in making such determi ed). nations. Mullaney, 691, See 421 U.S. at 95 (“[S]tate S.Ct. 1881 courts are the ultimate Winship-Mullaney frame law.”).3 expositors Next, of state in look therefore a reviewing work leaves ing law, at state we look to see “whether First, with several duties. it must deter the State has defined the elements of the a given ingredient mine whether is an crime presume so as to a fact essential to See, of the criminal e.g., element offense. guilt and then compelled the accused to Ct., Hgts. Hoover v. Mun. 802 Garfield negate that element of the Jago, crime.” (6th 168, Cir.1986) (examining F.2d 173-74 637 F.2d at 455. Winship is violated when whether the existence of a “lawful arrest” the state has shifted the burden of proof was an element of the crime “resisting ingredient for an that it has defined as an arrest”). Generally, principal task is crime, element of the or for a defense that to examine the state’s definition negates a required element.4 See Mulla required elements of a crime. McMil See ney, 701-02, 421 1881; U.S. at 95 S.Ct. 79, 85, Pennsylvania, lan v. 477 U.S. 106 Jago, 637 F.2d at (stating 455-56 2411, (1986) (“[I]n S.Ct. 91 L.Ed.2d 67 “presumptions of an element are clearly determining proved what facts must be unconstitutional”). beyond a reasonable doubt legis the state definition lature’s of the elements of the ”); usually dispositive.... offense is Pat 2.

terson, 12, 432 at 211 n. U.S. 97 S.Ct. 2319 Applying the Jackson (stating application Winship’s standard of re- view, reasonable we conclude that “dependent process doubt standard is Gall’s due rights on how a State defines have been the offense is violated. We do so be- Hoover, case”); charged any given cause the showing 802 Commonwealth’s of the (“[I]n F.2d at determining 173 which facts absence of extreme emotional disturbance (“EED”) proven must be a given establish of element of murder Ken- —an fense, generally legis- we look to the tucky state at the lacking time—was so that no 803, (6th 3. The e.g., Brigano, Patterson Court cautioned that "there Rhodes v. 91 F.3d obviously beyond 1996) are constitutional limits (stating Cir. test that an affirmative "[i]f may go” defining which the States not necessary relationship defense bears a to an 210, elements of crime. 432 U.S. at offense, charged of the element the burden of Supreme S.Ct. 2319. The recent Court deci- proof may placed of that defense not be Apprendi sion in demonstrates that in some defendant”) (citation omitted); Thomas v. circumstances, courts should look factors Arn, 865, (6th Cir.1983) (reject 704 F.2d beyond legislature’s a state use of “labels” in ing argument negating self-defense is a determining given ingredient if a is a criminal law). required element under Ohio There is implicates element Winship and other addressing also recent line of cases protections. See 120 S.Ct. at 2355-56. See complex sentencing distinction between a fac States, 227, 243, Jones v. also United 526 U.S. Apprendi, tor and an element. See 120 S.Ct. 1215, (1999) (not- S.Ct. 143 L.Ed.2d 311 2348; States, Jones United 526 U.S. ing manipulate way that "a State cannot its (1999); 119 S.Ct. 143 L.Ed.2d 311 Al case, however, Winship”). out of This does States, v. United mendarez-Torres require beyond us to look the Common- (1998); 140 L.Ed.2d 350 wealth's own definition of the elements of Pennsylvania, McMillan v. murder. (1986). 91 L.Ed.2d 67 We are not complexities faced with such here because we type complicated by Cases are often crime, First, years find that ingredient for the relevant to Gall's argu- several factors. can appeal, Kentucky clearly ably charged trial and law be both an of a treated element crime defense, presence and of a or the of a defense absence EED as an element under the See, arguably negate required can element. murder statute. emo of extreme the influence under to act have found fact could trier rational an element disturbance tional beyond the crime elements required *22 v. Com Edmonds of murder.” offense Jackson, See doubt. reasonable (Ky.1979); monwealth, 586 S.W.2d Moreover, casting in 2781. at Commonwealth, 567 I, see also the Ken- argument in aside Ratliff Therefore, the (Ky.1978). 5.W.2d clear violated the Supreme Court tucky car prosecution “the also held that court frame- Winship-Mullaney the dictates of the satisfy jury of the ried the burden work. distur emotional of extreme absence In at 309. S.W.2d Ratliff, 567 bance.” a. Edmonds, applied its the Court Ratliff Winship-Mullaney the Applying con retroactively, reversing interpretation of EED absence find that the inquiry, we trials for acts ordering new victions Kentucky under murder of an element was 1975, re- in 1976 and had occurred that appeal. trial and of purposes Gall’s law for Commonwealth, Bartrug v. In spectively. 1, 1975, Kentucky’s January Effective on a ob- (Ky.1978), defendant 568 S.W.2d person a that provided statute new murder including EED court’s the trial jected to murder when: guilty of is in- jury doubt of the reasonable as part of (a) to cause the death intent With rejected this chal- The court struction. of the death he causes person, another clearly legislature stating “[t]he lenge, except person; of a third person or such risk the to bear prosecution the intended shall person a prosecution any that in EED, Bar- and that non-persuasion” of this subsection under guilty not be if of shift the burden argument would trug’s extreme the acted under of influence Id. at 926. defendant. onto the persuasion there for which disturbance emotional language do because the we can not “This excuse, explanation or was a reasonable 'ex- the of Absence of statute makes the is to be of which the reasonableness an essential emotional disturbance’ treme per- a viewpoint of determined the Id.5 of murder.” element offense under defendant’s situation son place, precedent the statute With be- the defendant the circumstances as duty to their understood prosecutors However, nothing to be. lieved them EED, announcing an absence show shall constitute this section contained in the voir dire so intended do they pre- prosecution a for or defense closing argu- in their attempting to do so in the manslaughter conviction of clude a in- court telling, trial Equally ment. crime.... any other degree first burden, inform- of this jurors structed (em- 507.020(l)(a) § Ky.Rev.Stat. Ann. beyond they must find ing them added). phases killing that “when doubt reasonable acting un- occurred, was not Eugene Gall new addressed the cases first dis- of extreme emotional the influence der statute, Kentucky Supreme Court trial court at 1563.6 J.A. of EED was turbance.” that the plainly absence held EED that absence demonstrated also Specifically, murder. element re- prosecution an element that a “failure was condition court without held Indeed, majori- further, dissent attacks 6. while the distinction 5. The clarified the Kentucky misreading caselaw jury only convict for murder noting ty opinion can time, “did not act judge that a if it defendant trial concludes that “the it concedes dis- extreme emotional 'under influence of a manner consistent proceeded ... " Conversely, it would be im- Id. turbance.’ proper the then- majority contends what so that frame instructions jury. instructing Post existing law” when acted “required defendant] [a to believe 343. dis- extreme influence of emotional ‘under the mitigating ele- trigger the ... turbance' ment.” Id. quired prove rejected doubt,” when defen- but this “does not require dant’s directed verdict motion. J.A. at disproof any element that is entitled a ‘defense,’” Ky.Rev.Stat. 500.070; § Ann. notably, the statute does not fist absence Finally, the Kentucky Supreme of EED such a as defense. Ky.Rev. See nothing Court in Gall I said to undermine §§ (list- Stat. Ann. 501.070-.090 & 503.020 prior its clear statements from the two ing mistake, different types duress, in- years that EED anwas element murder justification defenses). toxication and Indeed, under the new statute. the court Gall I itself stated that EED was not a *23 noted several times that the Common “ ‘defense’ within the technical of meaning wealth shouldered proof the burden of that term as used' Kentucky Penal element, proof its burden entailed Code,” even if evidence of EED operated doubt, beyond a reasonable when as a defense in that it mitigated murder to a presented defendant has of evidence manslaughter. 607 S.W.2d at 108. Simi- EED, a murder instruction required larly, also statute states that “[t]he to the negating include of EED. See Gall defendant has the burden of proving an I, 607 S.W.2d at 108-09 & n. 5.7 The element of a case if the statute which following year, the court expressly reiter contains that element provides that prior holdings, ated stating its that “[t]he defendant may prove such element in ex- of absence ‘extreme emotional disturbance’ culpation of his conduct.” Ky.Rev.Stat. an essential element of the offense of 500.070(3). §Ann. Yet again, the statute murder, legislature and the intended the does not include absence of EED as an Commonwealth to bear risk nonper of instance a may where defendant prove ex- suasion on this element mitigation.” of See, culpation. e.g., Ky.Rev.Stat. Ann. Henley Commonwealth, v. 621 S.W.2d 504.020(3) § (providing that a defendant (Ky.1981). may show insanity legal exculpate to con- interpretation This was consistent with duct). Thus, both in description its of the First, the text of the statute. legisla elements of murder and in not identifying ture included the absence of EED its EED as a defense or element of exculpa- affirmative definition of Ky. murder. See therein, tion as defined the statute estab- 507.020; § Rev.Stat. Ann. Allen v. cf. lished that of EED absence was an ele- Redman, (6th 858 F.2d ment of murder. Cir.1988)(stating that “[s]anity is nowhere in [Michigan’s] mentioned definition” of as We further note that the Kentucky stat- murder). sault with Moreover, intent unique ute was among those that incorpo- legislature made clear in several other rated the Model Penal Code’s formulation ways EED, that the absence of promi so for EED. Statutes introduced EED in one nently included in the affirmative First, defini of ways. three a explicitly number tion, was not a technical defense murder described EED as an affirmative defense required the statute defendants to to first degree murder. See Conn. Gen. First, prove. pursuant to Winship, 53a-54a; § § Stat. Haw.Rev.Stat. 707- provides statute 702(2); “[t]he 45-5-103; § Common Mont.Code Ann. N.Y. wealth has the burden proving every of 125.27(2); § Penal Law Or.Rev.Stat. beyond element of the § case a reasonable 163.115. provided Others EED as a miti- course, recognize, 7. We of plac light that a state’s But in of the clear decisions from the ing prosecution prove the burden prior on the a two that the terms absence of EED was particular beyond circumstance an prosecu- reasonable element murder for which the doubt necessarily does not that cir proof, render tion bore the burden of IGall cumstance an element of the See repeated crime. En Court's prosecu- assertions that the Isaac, 107, 120-21, gle v. prove beyond tor must absence of EED (1982); 71 L.Ed.2d 783 Allen Red reasonable indicated doubt its clear adher- man, (6th 1988). F.2d 1197-98 Cir. holdings. ence to those evidence, that the Commonwealth we find their part of and as gating circumstance showing burden of meet its not but did did manslaughter, definition a reasonable beyond mur of EED definition in their absence EED mention affirmative First, made an §§ & 5- 5-4-605 Ann. doubt. Ark.Code der. See 641; it would be Although § N.H. Stat. EED. 10-104; showing Ann. Del.Code Kentucky § Ann. 76-5- Su- 630:2, years before § Utah Code ten Ann. almost EED, Code Model Penal precisely define This is how Court would preme 205.5. Pe Model provided introduced. See trial had proposed preceding cases 210.3(1)(b). in Dakota North psychotic § disor- nal a severe showing Code mitigat See, a circumstance EED as troduced EED. to establish der was sufficient murder, felony, (find- murder, AA class ing Edmonds, 26-27 586 S.W.2d e.g., N.D. Cent.Code felony. See A class defendant’s EED due to ing evidence states ex Additionally, some § 12.1-16-01. psycho- resulting manner” “bizarre on defendants the burden plicitly placed medication); Rat- condition and neurotic preponderance prove EED (concluding at 309 567 S.W.2d liff, *24 Ann. See, e.g., 11 DeLCode evidence. to due existed possibly EED evidence of Kentucky’s than other § statute 641. No “very defendant was testimony that the formu Penal Code the Model incorporated also see McClellan likely psychotic”); definition directly into its EED lation for Commonwealth, (Ky. 715 S.W.2d or stating there also without of murder that 1986) in holding (overruling Ratliff affirmative def it was an that elsewhere alone,” suffi illness, “standing is mental ense.8 EED); Henley, establish cient to (stating that both at 909 S.W.2d Ratliff b. EED instructions Edmonds found and judge’s instruction Despite the testimony defen about necessary due to the to show needed government that the illnesses).9 IGall mental respective dants’ beyond reasonable EED absence of and Ed- or amend not overrule did Ratliff that jury’s the verdict doubt and their accepted but this point, on monds prosecution the maintains that guilty, Gall at See 607 S.W.2d premise. central support evidence failed to adduce schizophre paranoid that (noting chronic element, and the EED” that “absence extreme as an had nia been characterized an un applied Kentucky Supreme Court record); id. in the disturbance emotional reviewing this standard constitutional disorder, wheth “that mental (assuming closely scrutiniz claim. After sufficiency insanity, may legal it to er amounts or record, agree. must ing the we ex ‘explanation a reasonable constitute emotional disturb extreme for highly cuse’ deferential Even under Jackson’s ance”).10 sufficiency of the of review standard Kentucky Supreme lines, Contrary to the even

8.Along dissent Patterson these the caselaw, the interpretation of its own opinion allow Court’s majority fretted the that did not opines these decisions persua- burden of dissent legislature to the shift ill- showing mental that a of severe establish any factor in a criminal respect to sion with We of EED. present evidence sufficed case, ness long not to mention is careful "so argument address in the statuto- factor the nonexistence infra. the crime. sole ry language that defines I Court argues the Gall 10. The dissent any to the fac- requirement references fact, the it was in distinguished In provide sections that tor be those confined Ratliff. challenge by Gall that separate of a context defense." for an affirmative 223, As distinguished (Powell, dissenting). IGall Court J. S.Ct. 2319 Ratliff. argued infra, in n. opposite explicitly just discussed Kentucky did — reading portion of by not erred mentioning of EED in the trial the nonexistence required jury to EED instruction language statutory that defines crime subjective standard— EED under de- examine considering failing as an affirmative mention EED the defen- circumstances as fense. Moreover, clearly we find that Gall EED); met dition bearing 431-32, id. at Edmonds, requirement S.Ct. 2906 (noting that an examiner’s ex- Ratliff having introduced the testimony of Dr. amination for the purpose of assessing a Noelker Dr. Toppen that he suffered defendant’s mental condition in the “here disorder, and, psychotic from a severe spe- and now” was irrelevant the defendant’s cifically, paranoid schizophre- from chronic mental condition when the killing oc- Moreover, curred) nia. Dr. Noelker stated explic- (Marshall, J., dissenting). Dr. itly to that Gall in a state of Chutkow also stated his belief that Gall did “extreme emotional April disturbance” on not have one particular form paranoid 5. J.A. 982-83. Dr. Noelker’s conclu- schizophrenia on day of the crime and sions were based on history of se- could at appreciate times the criminality of vere mental disorders and the tests and his conduct. 308-56, J.A. at 1535. But interviews Dr. Noelker had administered Dr. point Chutkow at no disputed crime, since as well as circumstantial showing that Gall psychot- suffered from a “aggressive evidence of Gall’s very ic disorder sufficient to constitute an EED. bizarre behavior” on day fact, of the mur- reasons, for several testimony J.A. at example, der. 1014. For Dr. failed to rebut in any way the evidence stated, Noelker “I not explain [can] Mr. that Gall suffered from EED while com- morning Gall’sbehavior on that in question mitting the killing. ... except terms of extreme mental First, Dr. Chutkow’s testimony was nar- [Tjhis disorder.... defendant had no rea- row, failing to overcome crucial statements about, [ ]

son rush helter-skelter throw- made Dr. Noelker Toppen. and Dr. *25 clothes, ing belongings, books and whatev- For example, he only stated that he could er all highway.” over the J.A. 1014-15. symptoms not find of paranoid acute

Meanwhile, the Commonwealth failed to schizophrenia before the onset of Gall’s fact, this showing rebut of EED—-in claimed amnesia and that he believed that does not even claim to have done so in the legally Gall was sane. testify He did not brief it filed with this Court. Dr. Chutkow that Gall had no mental disorder whatsoev- prime er, was state’s witness on Gall’s nor that he did not suffer from an EED with, mental state. begin To gist of at Indeed, the time of the killing. Dr. testimony that his was competent Gall was acknowledged Chutkow that he could not indeed, to stand purpose sole of out having rule Gall schizophre- chronic trial — only his examination of Gall had been to very nia' —the form that Dr. Noelker had competency. determine Gall’s In diagnosed. Buchan- J.A. at 334-36. He also ac- v. Kentucky, an knowledged that during Gall’sbehavior his (1987), 97 L.Ed.2d 336 all nine mem- might suggest “POW incident” variety a of of Supreme conditions, bers recognized including depression, psychotic fundamental distinction behavior, between an exami- disassociation, or if even that nation into a competency defendant’s did not behavior characterize acute schizo- trial stand and his mental condition at the at In phrenia. J.A. 345. his depo- habeas time of the criminal in question. sition, acts See Dr. again Chutkow emphasized the id. at 423 n. (noting that narrowness of videotape testimony, legal defendant’s competency was a “I stating: made no about him statement “very different issue” from his being mental con- I only insane. said he was not suf- dant believed them implicit to be. The Court suggestion, distin- the court not did indicate guished because Ratliff had testified distinguishable that was from Gall be- Ratliff Ratliff perception about her circumstances "initiating cause circum- involved Ratliff her, Hence, around while Gall not. had shown, stances” that Gall had not and that concluded, portion court the latter of the EED provide had therefore failed evidence case, appropriate instruction to Ratliffs of EED. Contrary

but not to Gall's. to the dissent's testimony lay that the think do we Nor just prior schizophrenia acute from fering create a was sufficient at trial adduced the commission amnesia on period EED. The showing of simply over Gall’s But conflict at 438. crime.” J.A. of the testimo- part on the rebut relied not did district schizophrenia lacking acute at the present he witnesses evidentiary showing that and ny of officers strong Gall’s quiet, “appeared the time of robbery at that Gall an EED under later nervous, steady had excited, and not killing. not that voice” to conclude a normal hands several stated Dr. Additionally, Chutkow introduced suffi- had the Commonwealth know no he had basis times at 26. sanity. J.A. on Gall’s cient evidence killing. the time at state mental witness, testimony of one included This “no had instance, that he stated he For robbery, Gall during the Wynn, John after mental state as to Gall’s knowledge” not and did normal” [and] “nice seemed amnesia,” he claims which “time from Although at 1287.11 J.A. nervous. appear know Gall’s 335-36; he not did J.A. per se rule apply does not Circuit two approximately “gap condition for creating testimony from lay 350-51; barring hours,” J.A. at or three state to a defendant’s of fact as of time” before issue interval a certain “[f]or Smith, 437 F.2d feelings, mind, United States see murder, not know Gall’s did (6th Cir.1970), long have we J.A. at 540-41 judgments. sensations testimony. lay also acknowl- of such skeptical Dr. Chutkow been Importantly, lay testimony never consid- Smith, he had because stated edged that we Dr. data that extensive value when probative the more lacks ered state mental examined, he Dr. Noelker of the defen- Toppen knowledge “direct witness’s conclusions challenge their at 541. could Id. superficial.” is brief dant paranoid schizo- chronic Gall suffered noted that We also Finally, not 350-51. J.A. phrenia. never ob- that the witness a statement Dr. contradict never did Chutkow only Dr. part act on the an abnormal served suffered that Gall statement Noelker’s if, if, value but accused *26 (he killing committing the from EED con- and intimate prolonged had witness pres- on the question a asked was never There is accused.... the tact with EED), Dr. Chutkow of ence or absence witnesses that nothing to these show that Gall acknowledged because expressly might— an expert capacity the had —as schizophre- diagnosed of had a background judgments psychological valid to make in a of nia, have been” “state he “could relatively brief these the basis of on of crime. at the time exacerbation” contacts. sum, Dr. In of Chut- none J.A. at 352. (internal marks and quotation 541 Id. at Dr. countered Noelker’s kow’s statements omitted). holding State’s citation suffered definite conclusions a factual to raise lay insufficient evidence was schizophrenia and paranoid chronic sanity, the over Smith’s Smith issue killing. of the EED at the time under was no indication that there reasoned jury give instructs us to Jackson While to make were trained lay witnesses con- extant responsibility to full resolve neces- evaluations psychiatric kind of “the testimony prosecution’s flicts in questions” intelligently the sary to answer 2781, 319, 99 S.Ct. favor, at see 443 U.S. also was sanity, and there regarding to testimony failed contra- Dr. Chutkow’s either of “to indicate showing of no evidence aspects Gall’s dict the central witnesses, appellant, in observing these EED. argument that no Gall’s to rebut they to state evidence use this evidence 11. While showing rebutting his presented genuine evidence before there was issue EED at time he suffered from that killing. sanity, neither the district nor Gall’s (in brief) points this its Commonwealth

293 concerned his sanity compe Indeed, insane or under EED. even they if tence.” Id. at Following similar log believed he appeared “normal” on the sur- ic, Kentucky long courts have lay allowed face, these witnesses clearly lacked the testify witnesses to opinion as their of a capacity to determine if Gall suffered from state, defendant’s mental but have consis the type of disorder that expert tently emphasized the need sufficient diagnosed, witnesses or that he was under basis on which that witness form can her EED at the time of the killing several opinion. Commonwealth, See Brown v. hours earlier. 934 S.W.2d 248 (Ky.1996)(noting long Moreover, notwithstanding the fact that precedent time that lay can witnesses tes Dr. Noelker believed Gall’s behavior after “ tify as to a defendant’s when sanity ‘by the killing was further evidence of both association [they] and observation have EED and insanity, the Commonwealth had an opportunity to form opinion as theorized at trial that because Gall was ”) sanity of a person’ (quoting Ab attempting to flee the scene of the killing, Commonwealth, bott v. Ky. 624, he must have been sane and not under (1900)); S.W. Wiseman Com rejected EED. just We logic in a prior monwealth, 587 S.W.2d “ case, concluding that ‘any fool faced with (Ky.1979)(describing potential rele fear and foreboding can flee and hide. “lay vance of witnesses testifying as to the ” is the Such nature even a wild beast.’ customary of an conduct accused” d Love, Stacy v. (6th 679 F.2

jury’s assessment of a defendant’s mental Cir.1982) (citation omitted). Thus, flight state); Commonwealth, Jewell v. alone does not amount to evidence of sani (“‘The S.W.2d (Ky.1977) judg ty or lack of EED. person’s ment intimate friends and Finally, acquaintances we also do not his find soundness of mind is therefore always competent in Commonwealth’s cases of cross-examination Dr. ”) Abbott, this character.’ Noelker elicited (quoting 55 S.W. contradictions his state- 198). ments under direct examination. The Commonwealth asked a of ques- number case, In this lay question evidence tions seeking to show that Dr. Noelker did suffers shortcomings equivalent to that in not talk key witnesses of Gall’s First, behavior Smith. lay witnesses observed on April later or examine other key Gall not as he committed the crime in information, pieces before question, reaching but as he committed robbery conclusions as Gall’s hour, mental least one state. J.A. and perhaps hours, several at 993-1001. But Dr. explained after the Noelker Second, of Lisa killing Jansen. *27 that pieces those of these information witnesses were not observed Gall for matter necessary (no to of several determination other Smith, minutes at most. inAs their witnesses that they testified that he observation did not were neces- appear sary), and abnormal that not to in even them those brief Gall’s claimed moments prevented carries no amnesia him probative from weight rendering an ab- opinion sence of EED. based the 540-41; variety 437 of See F.2d at other avail- see Burks, also United able data 1011, he States had studied. at F.2d J.A. (6th Cir.1977) (stating that He lay proceeded testimo- to describe that ny that at great length. defendant did not data appear “abnor- When the Common- mal” persons attempted “who had very press wealth to Dr. limited Noelker as opportunity to observe” him to whether truly had little val- he could pinpoint Gall’s ue), rev’d grounds, on other 98 mental state at 8:00 a.m. on April he (1978). Third, L.Ed.2d 1 responded that he was “as I certain as can the Commonwealth introduced no evidence of anything my profession.... be As suggesting any that of these you witnesses had certain as can be ... that he was ” capacity the to if determine Gall was either actually there.... J.A. at 1017. The doubt, Gall’s conviction with Dr. reasonable ended Noelker

cross-examination process. violated due murder “any compe- that assuring prosecutor who has professional health tent mental I the data that reviewed all of

reviewed c. come to the same should [] could Finally, agree we with Gall at 1034. conclusion.” J.A. question, the Ken faced with this when tucky Supreme Court read the Common its overall the weakness of Reflecting in way statute that vio wealth’s murder evidence, closing ar- Commonwealth’s Winship. appeal, On his direct state lated argu- offer a failed to viable gument also had alleged that the Commonwealth Gall EED. It regarding the absence of ment of on the proof its burden not satisfied proposition merely offered erroneous I Court re of EED. The Gall absence prove an in- the defense’s failure a shred of sponded that there was “not prose- meant that the sanity defense also suggest acting was [Gall] evidence to its shouldering had cution succeeded an the influence of emotional distur under of proving the lack EED. J.A. burden ..., that he except for the evidence bance discussing the elements 1590-91. When from suffered a mental which illness doubt, proved beyond reasonable found, find, not jury could have but did in detail on the prosecutor elaborated at 109. was insane.” S.W.2d linking evidence Gall abundance of I, Although Kentucky Gall Su before contrast, the Commonwealth murder. preme showing Court had that a held point any showing failed to evidence comprise illness could evidence mental clear, it EED—largely, is be- absence of EED was an EED and that absence presented had cause Commonwealth of murder the Common element at 1592-1604. none. J.A. see, Ratliff, disprove, e.g., wealth must I held that Thus, S.W.2d Gall Court make even when we all inferences to place Gall’s evidence not sufficient favor, can not the Commonwealth’s we that burden on Commonwealth. trier fact conclude that a rational beyond of EED find an absence reason- proposi- There is much be said for at the time killed able doubt Lisa inher- tion an emotional disturbance point no did Jansen. At the Common- in a the kind of ing mental illness not showing rebut that he wealth suf- contemplated an emotional disturbance schizophrenia paranoid fered from chronic however, Assuming, the statute.... killing. at the time did the disorder, or Neither that a mental whether not Dr. Commonwealth counter ex- Noelker’s legal insanity, may constitute amounts to plicit that Gall under EED statement “explanation excuse” for a reasonable Instead, he. disturbance, when committed the crime. it was extreme emotional did Dr. Chutkow that he had upon state incumbent the trial court to re- no findings, basis to contest Dr. Noelker’s quire negating of that factor its disorders, murder, acknowledged but he that other instruction on which was done. *28 paranoid schizophrenia, say is including chronic That is not to that once the issue ground possibilities, (by were distinct raised evidence sufficient Gall doubt) have of the could been a state exacerbation. a reasonable Commonwealth one-time, countervailing the must it with evi- Neither did surface-level ob- meet lay raising servations the a the evidence the witnesses create dence. Unless dispute disturbance] over Gall’s mental state. Because issue emotional [of of viewing probative even when evidence in a such otherwise light force a Commonwealth, entitled as matter most a would be favorable defendant acquittal higher rational have law on the trier of fact could not found of (murder), beyond charge prosecution one of the a is not elements of murder required, to come negating ivith evidence “of such probative force that oth- forth evidence in order to sustain its burden erwise [he] would be entitled as a matter proof Otherwise it would of never be law to an acquittal on the higher of possible to convict a charge” defendant of places mur- an equally weighty burden der if if, defendant, there were no eyewitnesses and on that and thus violates due for example, process. he testifies that he acted self-defense, or was intoxicated out of Moreover, the Mullaney rejected mind, acting under the influ- several of arguments Maine’s with reason- ence of extreme emotional disturbance. ing that is relevant to First, this case. it added) (cita- stated that proof at 109 (emphasis S.W.2d of an element that omitted). distinguishes words,

tion In other between the Court murder and man- announced, slaughter implicates though even Winship Gall presented ev- as much as an element that idence require distinguishes sufficient to guilt a instruc- innocence. id. 697-98, tion that See the absence EED had 95 S.Ct. to be Second, rejected beyond arguments established doubt, iden- reasonable tical to those prosecution made did Gall I Court prove fact have to the burden-shifting beyond its is necessary absence be- reasonable doubt. cause of the difficulties prosecution Given that the absence of EED anwas faces in “proving negative”: element of murder under Kentucky law—-a No doubt this is often a heavy burden principle of law that Gall I accepted and prosecution to satisfy. The same Kentucky Supreme Court would may be said of the requirement of proof not overrule for years several por- —this beyond a reasonable doubt many con- tion of I directly violates Mullaney troverted facts in a criminal trial. But and In re Winship. The Gall I regime this is the traditional burden which our shifted the burden to defendants to pro- system justice of criminal deems essen- duce evidence of EED “of such probative tial.... Nor is requirement force that ... the defendant would be proving a negative unique in system our entitled as a matter of acquittal.” law an of criminal jurisprudence. Maine itself Id. Without that showing, a defendant is requires prosecution prove presumed to have acted in the absence of absence of beyond self-defense a reason- EED. Stated differently, the “absence of able doubt.... Satisfying this burden EED” drops element out of the state’s ... is identical to the burden involved required burden unless a defendant affir- negating the heat passion on sudden matively EED, shows even if the defen- provocation. Thus, we discern no dant presented has sufficient evidence to unique hardship on prosecution raise a reasonable doubt about the absence would justify requiring the defendant to of EED. This is exactly the type of bur- carry the burden of proving a fact so proscribed den-shifting by Mullaney; in- critical to criminal culpability. deed, the two cases are markedly similar. 701-02, (citations Id. at omit- In Mullaney, Maine had affirmatively ted). shifted the burden of proof “heat

passion” to the requiring that A close look at many Patterson —in defendant — malice aforethought to be “was ways conclusive- image the mirror of this case—fur- ly implied unless the proved defendant by ther illustrates the Mullaney violation preponderance fair Patterson, evidence that here. the Court reviewed he acted in the heat of passion on sudden inway which York New had adopted provocation.” 421 U.S. at the same Model provi- Penal Code EED *29 1881. The Court found this to be a clear sion penal into its law. Like other most Winship violation. We states, find that the I 3, supra see n. the New York code Court, by requiring a defendant to explicitly provided offer that EED was affir- an than onerous less is far evidence” “some of murder, tasked and then to defense

mative Kentucky placed proof of high burden the aby pre- EED proving with defendants I The Gall Court I. in Gall defendants Pe- on N.Y. See evidence. the of ponderance clear, rejecting this distinction made 205-06, itself 125.27(2); at U.S. § Law nal is issue that once the proposition had not Gall’s the state Because 2319. 97 S.Ct. create to sufficient “by evidence crime, raised and the of an element EED deemed doubt,” the Commonwealth reasonable “not did serve EED showing of because countervailing evidence. rebut it with must which the crime facts of any negative to the raising evidence Rather, the only when of convict to in order prove tois the State other- force that probative “is of such issue shift permissibly murder,” could New York aas would be entitled defendant the wise EED. to show onto defendants the burden higher the acquittal on to an lawof matter The Court 206-07, 2319. at Id. ne- (murder)” prosecution must the charge explained, of burden to sustain its evidence the gate code, New York criminal its revising Thus, the while 109. at 607 S.W.2d proof. ex- of the provided defense affirmative to sufficient evidence found ..., but disturbance emotional treme negate to the need an instruction merit the facts only if so do willing to to weighty insufficiently factor, it was that were established the defense out making to rebut Commonwealth require the certain- with sufficient the defendant See proof. of its burden part of as factor to unwilling itself The State ty. I direct- of Gall threshold higher This id. of absence to establish undertake Mullaney the distinction ly contravened doubt, a reasonable beyond facts those de- that a merely requiring between drew too would be proof that fearing perhaps with re- evidence some “present fendant difficult.... requiring at the fact issue” to spect In stark con- 2319. at 97 S.Ct. Id. affirmatively establish that must “he that established legislators trast, Kentucky 31, 95 S.Ct. n. at 702 See fact.” murder, and “clear- of an element EED added). (emphasis to bear prosecution intended ly I Court short, the Gall regime In Bartrug, 568 non-persuasion.” of risk evidentia- to Gall’s response constructed allowing the logic very 926. S.W.2d at constitutionally infirm was itself review ry consti- pass statutory scheme York New have should The court Mullaney. under renders thus Patterson muster tutional time at the Kentucky law adhered re- burden-shifting unconstitutional prosecu- head-on whether addressed I. gime Gall the absence to show itsmet burden tion Commonwealth although the Finally, doubt. a reasonable beyond EED here) (it that not do so does argue could Kentucky Su- review, the averting this the state comports with regime IGall process. due violated preme Court Mullaney government that ment “when proof a burden only bears 3. homicide in a presented properly issue prosecutor’s even the In contrast case,” at 95 S.Ct. 421 U.S. Kentucky law reading of judge’s trial The Court ring hollow. argument Kentucky time, mention not to Car North in Hankerson elaborated interpretation clear Supreme Court’s not forbid Mullaney “does olina that Guy’s statute, Judge dissent murder criminal defen requiring States was not of EED the absence contends evidence at least some present dant conclu- murder, our element respect to heat issue raise a factual clearly errone- “is most it was 237 sion self-defense.” passion or we argues It also (1977) Post ous.” 53 L.Ed.2d n. finding error “eompound[]” our added). requirement (emphasis But *30 equates mental illness with EED for pur- thorough review of the evolution of Ken- poses Kentucky of the tucky murder EED statute. easelaw reveals this. See id. carefully After considering the Following the incorpo- Commonwealth’s points dissent’s and underlying reasoning, ration of the Model Penal Code language respectfully disagree

we with both asser- into its definition of murder in Indeed, tions. we find the dissent’s rea- first Kentucky Supreme Court cases to soning to on an rest reading anachronistic explore its Edmonds, meaning were Rat- of Kentucky law—based on Kentucky liff, and Bartrug. As stated supra, all Supreme explicit Court’s and non-retroac- three opinions stated without condition or re-interpretation tive of the Common- exception that the failure to act under the wealth’s murder years statute in the after influence of an EED was an element of the its IGall decision. See, offense murder. e.g., Edmonds,

586 S.W.2d at 27. This was evident from i) the “language statute,” of the where “[t]he legislature clearly intended the prosecu- At the of repeating risk our earlier dis tion to bear the risk of non-persuasion” on cussion, we first address the dissent’s con this element. Id. Under this reading, any tention negating EED was an not showing of EED required the reading of element of murder. The dissent explains part element as of the murder instruc- that “nothing in the statute suggests that tion, as well as the reading of a first negating extreme emotional distress an is degree manslaughter instruction. See id. element of murder,” the crime of propo at 27. If has a reasonable doubt sition we believe is belied text “as to whether [a defendant] was acting statute, its clear variation from the under the influence of extreme emotional other states that adopted the same Model disturbance, it will not find him guilty of Penal Code provision, and, murder most murder but shall find him guilty of first- importantly, binding interpretation of degree manslaughter.” I, Id. Gall as we the highest court in the up Commonwealth explained supra, did not alter reading, until 1985. Further, Post at 338. tlie it although tasked defendants for the first dissent points to cases such as Wellman v. time presenting evidence “of such Commonwealth, 694 S.W.2d (Ky.1985), probative force that otherwise the defen Buchanan Kentucky, v. 107 dant would be entitled as a matter of law (1987), L.Ed.2d 336 and to an acquittal on the higher charge.” 607 Messer, Coffeyv. (Ky.1997) S.W.2d Further, at 109. S.W.2d the Ken argue that Kentucky applied a more tucky Supreme Court still adhered to its EED, refined analysis of and that its ab- earlier holdings that the absence of EED sence was not an element of murder even was an -“essential” element murder for at the time of Gall’s conviction and appeal. which the “legislature intended the Com Rather, comprises EED what the dissent monwealth to bear the nonpersua risk of terms a or mitigation “‘defense’ excep- sion.” Henley, (cit See 621 S.W.2d at 908 Post, Third, tion.” at 338. the dissent ing Bartrug, (1978)). 568 S.W.2d 925 attacks what believes to be the illogical point Making possible, as clear as results of reading our namely, law: court recited the definition of murder in a the “absurdity” of having prove the way that included absence of EED as a absence of EED in all cases. While the “Murder, clear element: statute, under the modern treatment of EED is perhaps is intentional killing where the defen more logically sound workable, we dant not acting under the influence of simply can agree the dissent’s extreme Id.; emotional disturbance.” see reading reflects the applicable law to Gall’s Hayes also Commonwealth, 625 S.W.2d case; indeed, the Gall I opinion itself did (Ky.1982)(“KRS 507.020 defines not apply the law the dissent A describes. murder as death caused intentional or

298 Su- Moreover, States 1986). the United of extreme absence in the conduct wanton and only Wellman Court, looking disturbance.”)- preme Importantly, emotional Wellman, that concluded of light of in Gall passages on Gall relied cases also these defense, not an affirmative an I was burden- EED new Gall the I, indicating that v. Buchanan See murder. of the continu- with element coexisted regime shifting n. 408&408 an Kentucky, was of EED absence that ing notion (1987). L.Ed.2d murder. of element routinely labeled have more cases Later change. would soon interpretation This see, murder, e.g., to defense as a EED the which on Wellman, case a 1985 In Commonwealth, S.W.2d v. Foster Kentucky Su- relies, the heavily dissent of role precise although the (Ky.1991), of plainest in the articulated preme flux.12 in appears still defense that Gall, EED of absence that, prior terms murder, of element an been had indeed in flaw illuminates cases of This line changed formally had not Gall and that of absence that contention the dissent’s per- it had although interpretation, that at the murder of an not element was EED was immi- change that the signaled haps is on Wellman I. Its reliance of Gall time nent. over- explicitly case that because in error argu- continually beset areWe of the absence holding that the cases ruled emotional “extreme upon founded ments murder —and of an element was EED of articulation despite disturbance” when place in very cases were those is in I It impact [Gall ]. meaning and its occurred, that and appeal and trial Gall’s of cause principal that opinion our Only in place. Henley left I and Gall court, this failure of problem Supreme Court Kentucky did Wellman those overrule Gall, specifically not EED is of the absence establish that ' Ed- Ratliff, Bartrug and portions explain murder, of as we of and an element absence that the declare which monds [] retro- holding apply not that we can infra, an es- distress is emotional extreme appeal. of conviction actively to murder the crime element sential of of reliance unavailing is the dissent’s Equally prove the Commonwealth require on Buchanan, relied that case since on the extent that ... To absence. such an EED was conclude Wellman extreme absence declare cases such of sum, the dissent’s defense. affirmative element to be an distress emotional of was of EED that the absence conclusion murder, expressly are they crime is based murder element of an not oveiTuled. conviction postdated Gall’s caselaw (emphasis Wellman, at 697 694 S.W.2d that resulted and, appears, it appeal, explain added). proceeded trig- The court IGall shift that dramatic emotional of extreme presence Mullaney “[t]he violation. to its clear gered due evidence, an matter of ais distress case to Gall’s applicable The caselaw later, year Id. A crime.” indeed element of EED the absence clear Wellman explained that court further of murder. element emo- of extreme absence “clarif[ied] an element is not disturbance tional ii) the Commonwealth which murder crime of reasons, respectfully we also For similar v. affirmatively prove.” Matthews must careful substan- the dissent’s disagree with (Ky. Commonwealth, 709 S.W.2d Messer, murder.” precludes a conviction Coffey Cof- recently, 12. Most evi- "once explained that ex- (Ky.1997), fey further court 945-46 S.W.2d introduced, "occasionally de- the absence although has plained that it EED is dence circumstance, mitigating as a EED scribed offense an element becomes thereof is, I, ... at 108 e.g., fact, 607 S.W.2d Id. at 946. murder.” presence its a defense to extent EED, tive definition of require- its defendant’s action be assessed from the ment that a specific predicate provocation viewpoint of a person in the actor’s situa- *32 trigger must EED. Specifically, the dissent tion, “the word ‘situation’ is designedly Kentucky reads law to distinguished have ambiguous.” Id. at 62. “There thus will EED between and mental illness or dis- be room interpretation for of the word ease that to insanity. amounts “The facts ‘situation,’ and precisely that is the flexibil- surrounding key the murder are ity desired.” Id. The ALI added that it extreme emotional disturbance defense. sought juries for courts and to focus far The facts surrounding mental defendant’s more closely on mental infirmities: key disease or are to the insanity defect provision] [The places far more empha- added). defense.” Post at (emphasis sis than does the common law on the dissent, According to the only when a subjective actor’s mental state. It also predicate provocation13 is found to have may allow inquiry into areas which triggered the killing must prosecution have been treated as part of the law of negate a showing of EED. Again, while the diminished responsibility or insanity dissent’s conception may reflect the law in defense. Kentucky today, this more refined defini- tion is based on caselaw developed Id. at 54. separate publication, the I, well after that can not be Code’s primary author echoed the ALI applied retroactively to Again, his case. Commentary, stating that the provi- new review of the in Kentucky evolution case- permitted sion a reduction to manslaugh- law on the substantive definition of EED ter “on the basis of a standard much plainly point. illustrates this broader than the concept of provocation as First, however, important it is to under- developed at the common law.” Herbert stand the intent of the Model Penal Code Weschler, Criminal Law Codification of they framers when concept introduced the in the United States: The Model Penal of EED. The ALI Commentary explains Code, (1968). 68 Colum. L.Rev. “provision includes the common- “The purpose explicitly was give to full law provocation doctrine of but is not so scope to what amounts plea to a in mitiga- ALI, limited in scope.” its Model Penal tion based upon mental or emotional trau- Commentaries, 210.3, § Code and at 53- significant dimensions, ma of with the 54. How far provision intended to asked show whatever empathy it can.” move from the common law was less than Id. clear, however. The Commentary itself Given the intentional acknowledged ambiguity that it moving into un- Code, Model Penal charted states provision, waters. The adopted it differ- ex- plained, approaches ent away defining “sweeps rigid EED. Some rules that provocation limited added additional specificity certain defined cir- within stat- Instead, See, cumstances. it utes e.g., casts the themselves. issue in N.D.C.C. 12.1- phrases that 16-01 (noting have no “[a]n common-law anteced- extreme emotional ent and no hence disturbance is accumulated doctrinal excusable ... if is occa- content.” Id. at 61. “This sioned development provocation, substantial or seri- reflects event, of many trend modern deci- ous or situation for which the of- sions preconceived to abandon notions of fender was culpably responsible”); what adequate provocation constitutes § N.H. Stat. Ann. 630:2 (requiring “the to submit question to the jury’s delib- influence of extreme emotional disturbance eration.” Id. It further noted that when caused provocation”). extreme Most setting out that the states, however, reasonableness of the left the ambiguous lan- explains 13. The dissent predicate that a prov- surrounding the murder that would arouse encompasses ocation "something either done extreme disturbance.” emotional Post at 343. by the victim or inherent in the circumstances Ed- it.” see when we know it “that we allowing unchanged, MPC guage Despite monds, at 27. 586 S.W.2d meaning precise shape courts early indicated cases ambiguity, new read courts state Several EED. Con- York and New agreed with re the court any provocation eliminate language impairments mental certain necticut showings allowing certain quirement, EED, no and that show were sufficient to show sufficient to be disease mental event triggering showing of additional Appeals, York Court EED. New necessary. advances instance, that “tremendous found pri had 1881” since psychology made *33 and Edmonds The both Court Ratliff Peo EED defense. new to the marily led psy- defendants’ respective pointed 288, 383 Patterson, N.Y.2d 39 v. ple EED warranting chological maladies (1976), 898, 908 N.E.2d N.Y.S.2d “trigger- the instructions, require to failing 2319, 197, 97 S.Ct. 432 U.S. aff'd demand. the dissent ing” event Therefore, the com (1977). L.Ed.2d record “[t]he that stated Ratliff, the court immediacy provocation law mon an emotional of with evidence replete is defense passion” of “heat for the prongs It im- at 309. S.W.2d disturbance.” York under New required longer no were expert “[t]wo that mediately elaborated extreme of the rather, purpose law; “[t]he suf- appellant that testified psychiatrists permit tois defense disturbance emotional type. schizophrenia-paranoid fered from actions that his to show the defendant very she was that experts agreed Both infirmity a mental by caused were shooting time of at likely psychotic insanity, and of level arising to the was what comprehend unable and was having committed for culpable is less then described The court Id. occurring.” interpretation This Id. at them.” the circum- about the defendant’s delusion Supreme aspect of a crucial was own her, on her based around stances case. the Patterson of affirmance Court’s includ- townspeople, fellow testimony that (not- 206-07, at See shot, were whom she store clerk ing the de- affirmative EED York’s New ing that opin- The her. See id. against conspiring only show a defendant required fense had Ratliff out pointed ion further to the level arising infirmity not “mental for treat- care center a local visiting been Pat- adopted also insanity”). Connecticut some for condition mental her ment of the de- holding that reasoning, terson’s While shooting. See id. prior time or require provoking “does not fense discussion suggests the dissent Elliott, 177 State triggering event.” was court “clearly” shows Ratliff (1979). 411 A.2d Conn. vic- of the “delusion” Ratliffs own treating re- her as the against conspiracy new tim’s ambiguity of Faced opin- provocation,”15 “predicate quired statute,14 Kentucky Supreme murder sort. no statement makes ion itself it a decade before than more waited psy- on Ratliffs Rather, more it focuses definition precise substantive developed ex- as described disposition chological it had trial time of Gall’s EED. At the delu- her manifested definition, pert witnesses and at a clear lay yet to down fact, “the noted, opinion The merely sions. . had stated appeal, it time of his by the perpetrated injustice affront injury, Commentary accompanying the intro- 14. ” (quoting Id. actor.' upon deceased Kentucky provision into the new duction 201.3). Code, other § "In Penal Model words, provision abandons EED that the law stated event, even any possible it killing “that the requirement law the common words, or emotional extreme mental to arouse upon 'ade- passion’ heat if in ‘sudden occur disturbance, Id. used here." phrase is as that ” § Ky. 507.030. provocation.’ St. quate circum- the victim EED "is not restricted claimed Ratliff comm. act that 15. The as if "looked me provocation that she would constitute committed stances which at 309. my Id. pull hair.” term, going to she was meaning i.e. ordinary ‘in the situation presented was one which in the gering predicate for an EED instruc- past would have been labeled as wilful tion, post see the Edmonds murder with a defense insanity.” Id. Court itself suggests that this was not Only years later, three the Kentucky Su- Indeed, case. flatly re- preme Court itself interpreted to jected the Attorney Ratliff General’s argument have found that an EED instruction “was the EED instruction was not nec- mandated because two psychiatrists testi- essary because EED derived from the fied that the defendant ‘very likely’ “heat passion” (which defense re- psychotic at the time she committed the quired provocation). Instead, the court homicide.” Henley, 621 S.W.2d at 909. stated that mentioning Without the “triggering” delu- [w]e find it unnecessary to define ex- sion that the dissent now emphasizes, the treme emotional disturbance. It is suf- Henley Court characterized the evidence say fice to that we know when we see of Ratliffs mental “definitive, condition as it. In the present case, we see sufficient nonspeculative evidence” of EED. Id. And evidence justify a submission of the *34 out, the points dissent three dissenting issue to the jury. in Justices protested just this as- Ratliff decision, pect of the opining that evidence Id. And again, once looking back on the only showing that Ratliff was suffering case years later, three the Henley Court from a disease, severe mental without assessed that the instruction was warrant- more, was not sufficient to qualify as EED. ed in Edmonds because of the “strong (Jones, J., See id. at 310 dissenting). evidence” of EED: namely, appel- “[t]he minority While view prevail did not lant had been hospitalized several times (as the time it would in years), later for problems, mental and shortly prior to helps clarify the majority that was treating the shooting, he had been taking a self- Ratliffs mental illness as sufficient to show prescribed and self-concocted medication EED.16 which affected him mentally.” 621 S.W.2d

Again Edmonds, in Kentucky the Just as with Ratliff, Su- there was no preme Court relied primarily psycho- on of any predicate mention provocation trig- logical evidence to find that an gering EED a response from Edmonds-— instruction was necessary. The his court mental state. explained that Edmonds had previously these opinions Given from prior the two hospitalized been for a psychoneurotic years, it is surprise no that the Gall I condition, that prior to his alleged Court, when faced with a situation where killing of 23-year woman old with primary the evidence of EED was that of whom he infatuated, was he had been illness, Gall’s mental did not simply reject taking a self-prescribed and self-com- Gall’s argument under the dissent’s ratio- (a pounded medication mixture of sodi- nale that Gall did not offer a “provocation um bromide or alcohol and potassium predicate.” Rather, the Court stated that bromide) that led him to “blank out” and act in a “bizarre there manner.” is not a shred of evidence to sug- S.W.2d at 26. The court gest then explained that he acting was the under influ- that due to continual jealousy and of an disturbance, ence emotional or that delusion that she was seeing any another there were circumstances existing at man, Edmonds shot her. See id. the time of the killing or provoke the While again dissent once casts Ed- stimulate disturbance, such a except for monds’s “delusion” as required the trig- the evidence that he suffered from a points 16. The dissent out disagree- the majority plainly stated that absence ment between the majority and dissent in EED murder, was an element of and the did not involve whether EED anwas Ratliff did disagree dissent not point. with this element agree. the crime of murder. We Kentucky Had fact. accommodate jury could which from illness mental to EED approach find, was followed law found, did not but have describes, this discussion none of dissent insane. But necessary. been I would have then court While at 109.17 607 S.W.2d Ratliff, in Edmonds decisions said to be much [was] that “there stated I, after Gall good law remained which dis an emotional proposition for the casting simply the court precluded illness in mental inhering turbance the dis manner in the aside contem the evidence disturbance emotional the kind proposes. analysis Ed- now statute,” with sent’s consistent by the plated hold. not so it did Ratliff, monds evidence telling the most Finally, appeal, Rather, purposes for the isI through Gall EED understanding of disorder, mental that a “[a]ssum[ed] court Kentucky Supreme direction the new insanity, legal amounts not it whether acting years, subsequent adopted ‘explanation a reasonable may constitute expressed it first skepticism upon the distur emotional extreme or excuse’ definition the loose regarding IGall there showing that Further Id. bance.” Drogin, To Eric Y. generally EED. See require provocation hard-and-fast was no Emotional Insanity: “Extreme Brink of court’s trial stated ment, Law, Ky. N. Kentucky Disturbance” EED half of the the latter to omit decision be- (1999) (explaining that 99, 110 L.Rev. there proper because instruction Gall, “witnessed the 1980s ginning appel suggest “no evidence rulings of reaction inevitable any ‘belief involved motivation lant’s *35 ”). While Edmonds of nature Ratliff circumstances regard with part his (im- 625 586 Hayes, S.W.2d Henley and disturbance.” emotional alleged that induced suf- defendant that that evidence plying II, 702 S.W.2d also Gall see Id. evi- was schizophrenia paranoid fered from where emotional (“[U]nlike the case at 43 EED), to adhered of dence Ratliff by some precipitated has been disturbance Wellman, to over- Edmonds, addition in in the defendant that circumstance event Ed- the statements ruling Ratliff evidence exist, was no there to believed of an comprised element EED that monds by any ‘belief was motivated that Gall also murder, Kentucky Supreme Court the circumstances to regard with part illness mental held that first time for the distur emotional alleged induced that It EED. show sufficient to not alone was hold rather than bance.”). Importantly, “probative, be there must also held evidence proffer failure to ing that Gall’s initi- evidence of independent tangible that he meant event precipitating about circumstances, provocation as such ating was EED and showing of made a had not to is contended his act which of instruction, at the time to not entitled therefore disturbance.” emotional extreme arouse of the language merely found later, the year at 697. One to 694 S.W.2d could be altered EED' instruction was that he entitled probative force such quote dissent shows 17. This law. Because of acquittal as a matter con- I Court stating that Gall when error under burden-shifting EED, was unconstitutional of was evidence” there "no cluded finding deference. no owe this Mullaney, we finding great we owe that factual and that Kentucky Su- at 341. The deference. Post challenged this instruc- separately has was no 18. Gall actually that there stated preme Court Like the process. of due a violation tion "except for” the evidence of EED evidence Court, we find that Supreme Kentucky illness, with making clear—consistent mental light factual proper was instruction such evidence and Edmonds—that Ratliff crime, "by not and did stating circumstances than Rather evidence EED. result- that the evidence, the entire trial infect itself so any present failed Gall had Cupp v. process.” due ing violates conviction that the bur- concluded Gall I Court instead 141, 146, Naughten, prosecution onto never shifted den had (1973). L.Ed.2d presented evidence Gall because had Kentucky Supreme Court iii) elaborated fur- ther, disavowing its statement in Edmonds Finally, we wish to articulate the it,” that “we it know when see and choos- reasons that the dissent’s appli retroactive ing instead to define EED precisely. See cation of Kentucky Supreme Court deci Commonwealth, McClellan v. 715 S.W.2d sions that overruled the precedent clear First, (Ky.1986). cited Well- governing I would improper. “[ejxtreme proposition man for the First, by applying the more emotional defini disturbance is modern something differ- tion of EED ent insanity case, to Gall’s or mental illness.” Id. at dissent It explicitly directly then Ratliff, overruled contravene the Kentucky concluding that the Supreme Court had “in- Court’s own determination that Ratliff dicated that extreme emotional distur- the new definition of EED in McClellan bance was akin to a lesser-degree defense was to be applied prospectively. See insanity” and had suggested that a Smith, 734 S.W.2d at 449. It was McClel showing of mental illness or insanity, lan that overruled conclusion that Ratliff’s alone,” “standing sufficient estab- illness, mental alone, standing could com lish EED. Id. It proceeded then to set out prise EED, evidence of but Smith made precise definition of EED that included clear that this refined definition was not to the proposition that EED “is not a mental be applied retroactively. We must defer Rather, disease itself.” Id. EED “is a to this state determination. temporary state mind so enraged, in- flamed, or disturbed as to overcome one’s More generally, applying cases judgment, and to cause one to act uncont- such as Wellman and McClellan Gall’s rollably from the impelling force of the case would defy the underlying purpose of extreme emotional Id. Im- disturbance.” habeas review. The task of a habeas court portantly, Kentucky later decisions held § under tois assess the constitution that this new definition of EED was to be ality of a state court conviction. Even applied prospectively, and not retroactive- respect questions of federal consti ly. *36 Commonwealth, See Smith v. 734 law, tutional habeas review is constrained 437, S.W.2d (Ky.1987). 449 Later cases by principles robust of finality and non have also clarified even that further there retroactivity. generally See Teague v. must be a “triggering” event for there to Lane, 288, 1060, 489 U.S. 109 S.Ct. 103 EED, be and that event must be “sudden (1989). L.Ed.2d 334 Principles of comity and uninterrupted.” Foster v. Common- and finality equally wealth, command a that habe 670, 827 (Ky.1991); S.W.2d 678 see as court can not revisit a Commonwealth, also v. state Cecil court’s 888 S.W.2d 669, interpretation law, (Ky.1994) 673 of state in particu and (discussing the need for “ lar, event”). ‘triggering’ a instruct a that habeas court accept the interpretation state by of law highest While these later standards indeed re- state court on petitioner’s a appeal. direct semble the EED, dissent’s conception of See, e.g., Mullaney, 421 U.S. at 95 they also show that that conception did not (“[W]e S.Ct. 1881 accept as binding the emerge until after Gall I. Through IGall Supreme Maine Court’s of construction 1980s, McClellan, and the early Henley, law.”); state Burke, homicide Gryger v. illustrate, and Edmonds showing a Ratliff 728, 731, 334 68 (and of S.Ct. 92 serious L.Ed. mental illness in several (1948) instances, (stating that showing peti of because the paranoid schizo- phrenia) tioner alleges only had been sufficient that a to meet the state trial court ambiguously misinterpreted law, EED. defined Because Gall state and that because made such a showing, he that was entitled to court’s action by was affirmed process due protections highest of Winship court Pennsylvania, in the court and Mullaney. empowered was not adopt a different ap- law the state overruled Schotten, explicitly that law); v. Norris

view of state in case. Cir.1998) plied petitioner’s that a (stating (6th 314, 328 F.3d issue revisit an should court habeas demonstrates example simple A “especially doing so is that law, requires that Virginia and state v. Jackson point. law issue the state rational when whether a examine inappropriate” courts habeas v. Johnson a defendant appeal); have found on direct fact could resolved trier of Cir.1997) (3d doubt, and in- 104, 113 a reasonable beyond 117 F.3d Rosemeyer, guilty “with be made [], act courts that such review (“In district cases structs habeas ele- the substantive the state explicit reference has decided court the state after as defined offense the criminal that ments of record the same it to applied law and n. at 324 443 U.S. law.” state permit To court. the habeas is before petitioner, habeas that a Suppose di- about to speculate courts federal elements three a time when convicted face of in may take law state rection law, that argues under required state were court of a state final decision authoritative third prove failed prosecution interfere directly case the same in be Jackson would under Review element. mean- ability to decide the state’s with retro- court were if a habeas meaningless omitted). law.”) (citation It is own ing its removing cases later state apply actively to law, state binding baseline against this overruling explicitly third element hand, we case at the facts case. petitioner’s applied precedent court’s resolution de novo state review the dissent’s what precisely this is Yet our Con- violated conviction whether Gall’s we do. approach proposes Illinois, v. Bute generally See stitution. L.Ed. Moreover, pro due constitutional (“It to decide (1948) province is our casting aside violated would be cess court Illinois practice whether estab holdings Supreme Court Kentucky in con- admittedly cases, although these as an element EED absence of lishing the Illinois, was so formity with the law overruling cases favor of later of murder process] [due variance clearly when particularly precedents, those clearly invalidat must applied these sentences itself Kentucky Supreme ed.”). may 2) consult case, 1) a habeas While to Gall’s early cases those instances I, intervening state decisions and after Gall both before cases heard clarify illustrate 3) decisions place where those before that took crimes in the petitioner’s Mullaney applied the law than in No Gall’s. less after F.2d see, case, e.g., Young, Cole itself, conclusion Wellman’s applying own *37 (1987) intervening 412, (examining 421-22 was not element EED absence of comprehend state cases (when later decisions I even Wisconsin crime decisions effec petitioner), would applicable law premise) crucial accepted that misinterpreta on an proof courts’ of other tively that correct the burden shift Foltz, Gall, 804 law, Duffy v. difference tions of see onto element (6th Cir.1986)(deferring Mullaney violation 50, 54 being F.2d stage. The review conclusion Court’s collateral Michigan Supreme occur defense, has cau Mullaney which insanity since Supreme of Court role not be allowed inter a must Circuit state prior conflicted with a Sixth tioned that Glenn, Winship.” law); way out 635 its “manipulate pretation Michigan 1215; see 240, Jones, 119 S.Ct. intervening Ohio U.S. (deferring to 526 F.2d at 1188 11, 95 at 691 n. 421 Mullaney, illustrated U.S. also Supreme decision (cautioning that state-court 1881 interpretation S.Ct. district court’s re-exam can be law incorrect), of state defy interpretation it would Ohio had been law to be an obvious “appears re ined when habeas framework fundamental fed- of a evade consideration subterfuge to precedent intervening state apply view

305 issue”) (citation omitted). eral Applying post the ex clause would be. Al- facto the fundamentally conception new though of EED a decision can render a “disadvan- in tage” outlined later cases such as Wellman to ways, Collins, number of see 497 43, 52, Gall’s collateral review U.S. at 2715, 110 would allow the S.Ct. the elimina- tion Commonwealth to avert of an Winship just element of a crime is the quin- tessential way. disadvantage that can not be applied retroactively. See Carmell v. Tex- Finally, retroactively applying as, 513, 529 1620, 120 S.Ct. 1632-33, the later Kentucky cases to Gall’s habeas 146 L.Ed.2d 577 (2000)(noting that “retro- petition would also violate the non-retroae spectively eliminating an element of the tivity principle articulated Bouie v. Co offense” violates the ex post clause); facto lumbia, 347, 1697, 378 U.S. 84 12 Collins, 43, 497 U.S. at 110 S.Ct. 2715 (1964). L.Ed.2d 894 While ex post (explaining that the original understanding precludes clause legislatures state facto of the Ex Post Facto Clause was that from retroactively altering the definition of “[^legislatures may not retroactively alter crimes, see Dep’t Corrections California crimes”). the definition of Moreover, a Morales, 499, v. 504, 514 U.S. 115 S.Ct. law that proof alters the necessary to con- 1597, (1995); 131 L.Ed.2d 588 Collins v. vict a defendant also violates post the ex Youngblood, 37, 43, 497 U.S. 110 S.Ct. clause. See Yaklich, Wilson v. 148 facto 2715, 111 (1990), L.Ed.2d 30 the Bouie (6th F.3d Cir.1998) (noting that Court held that state supreme courts are laws affecting “degree proof neces- by “barred the Due Process Clause sary to guilt” [ establish implicate ] the ex achieving precisely the by ju same result clause) post (quoting Hopt Utah, facto Bouie, dicial construction.” U.S. at 574, 589-90, 4 S.Ct. 28 L.Ed. 353-54, 1697; see also Dale v. (1884)); Sowders, Murphy v. 801 F.2d Haeberlin, (6th Cir.1989) 878 F.2d (6th Cir.1986) (stating that laws “ (stating that supreme ‘a state court is violate post the ex they clause when facto by barred process the due clause from “alter degree, or lessen the amount or achieving by judicial construction a result measure, of proof which was made which a state legislature not obtain could necessary to conviction when the crime statute’ by ’’Xquoting Watkins, committed”). Jordan v. (5th Cir.1982)). 681 F.2d Thus, These standards make clear that just post context, as the ex facto Kentucky Supreme explicit Court’s altera- heart of the analysis Bouie is scrutinizing interpretation tions of its of EED in cases the definition and construction of the crim such Wellman and McClellan can not act, id., inal see and ascertaining if the applied to Gall’s case. These later by construction the later court decision cases achieved two things: they held that

was foreseeable in ques defendant absence of EED was not an element of Bouie, tion. See 378 U.S. at 84 S.Ct. murder, and they made a defendant’s task (concluding change in law considerably more demanding by intro- “unexpected indefensible refer ducing precise “triggering” predicate *38 ence to the law which had expressed been that was articulated in neither the statute prior (citation issue”) to the conduct in nor prior caselaw. Both explicitly cases omitted). If the new interpretation inwas prior overruled caselaw. Applying these unforeseeable, fact if it was applied new rules to Gall’s ease clearly would vio- events occurring enactment, before its see late Bouie. Under the most reasonable Graham, 24, Weaver v. 29, 101 reading of plain the statute’s text —that 960, 67 (1981), S.Ct. L.Ed.2d 17 and if the absence of EED was an element of the interpretation disadvantages crime, the offender with no mention of whatsoever it, id., by affected see then and Bouie Dale “triggering” requirement that developed process that due just instruct eases, is violated as later and with legislative history 306 be would “[i]t because defendants against precise away move a suggesting judicial of that, in advance of to hold “heat hard of the requirement provocation subject, they were of conception upon the new utterance element —the

passion” challenged provi cases later by the to understand bound introduced EED un- used were later ways language that to the according law changed sion Salisbury, acts Gall of the v. court”); the time States United by the foreseeable itself, (6th Cir.1993)(finding statute Beyond 1369, 1380 committed. F.2d 983 inter- earliest Kentucky Supreme vague Court’s statute to cure inappropriate it statute, its decision of pretations retroac construction new apply and retroactively to cases reading this apply holding). to the prior tively to conduct Cf. the statute shortly after occurred that States, 430 U.S. v. United Marks (and of- Gall’s prior to effect into came (1977)(holding 990, 51 L.Ed.2d 97 S.Ct. acknowledgment explicit fense), its and obscenity statute a federal that because directly overrul- cases were later that decision sweeping, Court vague and this view. cases, support all prior ing on First standards relaxing constitutional appli- retroactive that the also clear It is obscenity could of protection Amendment substantially those cases of cation retroactively). applied be not an removing Gall, by both disadvantage by imposed sum, to constrictions making murder, due by and element underlying purpose substantially law, the Kentucky EED showing burden limi- process review, as due as well difficult. habeas more Bouie, Mullaney and articulated tations alternative, rea could one In the apply invitation the dissent’s we decline was suffi statute face that the son that over- of EED conceptions and cases time of Gall’s at the that ciently unclear the Gall governing premises critical ruled as interpreted either crime, it could attack of collateral to Gall’s I decision ele EED as absence establishing adhere, we Rather, as will we decision. believed), initially (as courts the state ment Court’s Kentucky Supreme must, (as of evidence or matter a defense or as the dra- preceded EED conception believed, dis as the and the courts later marked Wellman changes matic believes). awith When faced now sent I the Gall McClellan, conception that a facet as criti ambiguity considerable well as appeal as to Gall’s applied court crime, a of a element potential as a cal after before both that occurred crimes a statute void that such may rule this case.19 crime in circumstances, or, in certain vagueness to that statute clarifying gloss may add itBut would prospectively. apply it Insanity Sufficiency of Evidence C. apply process due violate again once pro his due argues next retro precision unforeseen added the evi because were violated rights cess v. New Lanzetta generally actively. See was insane. that he clearly showed dence 456-57, Jersey, 306 U.S. bring not Gall can hold that we Because the New (1939)(stating that L.Ed. 888 review, not we do habeas argument on applied improperly Supreme Court Jersey its merits.20 reach statute vague aof interpretation its opinion misinterprets our I 20. dissent in Gall argues the decision Gall also crime Columbia, when the was insane holding "Gall Bouie violated (1964) do ago." We in fact years retroac- L.Ed.2d committed against legal standards tively applying new this issue. address *39 that the deci- we have found Because him. contravening process due violated sion Bouie address Gall’s Mullaney, we need not argument.

307 A prisoner state is entitled to sanity is required a element of murder. § relief under 28 U.S.C. if he is The statute places also the burden prov of held “in custody violation of the Consti ing legal insanity squarely on a defen tution or laws or treaties of the United dant’s shoulders. Ky.Rev.Stat. See Ann. A challenge States.” to a conviction must § 500.070 (placing burden proof of onto therefore do pose question more than of defendants whenever the provides statute law, state for such a challenge alleges no that the may prove defendant the element deprivation of rights federal and does not of a case “in exculpation of conduct”); merit habeas relief. Isaac, Engle See v. Ky.Rev.Stat. §Ann. 504.020 (stating that a 107, 119, 456 U.S. 102 S.Ct. 71 defendant “may prove [legal insanity] in (1982); L.Ed.2d 788 see also Estelle v. exculpation conduct”).21 of criminal Con McGuire, 62, 67-68, sistent with statute, Kentucky courts (1991) (“[I]t 116 L.Ed.2d 385 is not have consistently concluded that sanity province of a federal habeas court to not an murder, element of that insanity is reexamine state-court determinations on defense, and that the of proving burden questions.”). state-law With require this insanity rests See, with the defendant. ment, dichotomy discussed supra be e.g., Hayes, 586; 625 S.W.2d at Brewster v. tween elements non-elements of a Commonwealth, 568 S.W.2d 234 (Ky. criminal again act plays an important role. 1978); Wainscott Commonwealth, v. Challenges to evidence pertaining to an S.W.2d (Ky.1978). This case is of an element offense raise constitutional thus no different than Duffy Foltz, process due concerns under In re Winship (6th F.2d Cir.1986), where this are thus reviewable on habeas review. Court held that because sanity was not an hand, the other On challenges to evidence element of the relevant crimes under do not generally implicate non-elements law, Michigan Duffy’s claim that there was In Winship, re and are not reviewable proof insufficient sanity did not raise a § through a petition. Engle, See 456 federal constitutional issue. See also Red- 119-22, 102 S.Ct. 1558 (refusing to man, 858 F.2d at 1200 (stating that there review an argument to an affir pertaining were no cognizable grounds for habeas defense). mative An way alternative to relief “[b]ecause under Michigan law sani gain habeas review is to that a show de ty is not an element” of charged of fense fully raised “negates an element” of fenses). crime; a state disprove must then as part defense of its burden proof. See reject We also Gall’s alternative id. at 102 S.Ct. 1558. A contention argument that we can review the question that a state failed to disprove type sanity showing because the absence of defense raises a colorable constitutional sanity wholly negates the in element of appropriate claim for habeas review. See tent, placing the burden back on the Com id. monwealth to prove sanity beyond a rea however, Kentucky, sanity is not an sonable Kentucky doubt. courts have murder, element of and insanity does not consistently held that an insanity defense negate an element of murder. We thus does not negate crime, an element can not First, review this claim. Kentucky that a showing insanity does not law does not sanity include as an element shift burden of proving sanity onto the of murder. element, Unlike the See, EED e.g., Edwards, Commonwealth. § 507.020 does not indicate that absence of S.W.2d at points to no cases presents 21. Gall argument dubious when he insanity. Ky.Rev.Stat. one of which is Ann. 500.070(3) § asserts that "says insanity 500.070(3) added). § (emphasis This is clear- ” (II) remains an 'element.' Gall's Br. at 119. ly insanity not a suggestion that or other provision The cited discusses "element[s] of defenses are elements " offense. the case prove, which defendants have to *40 308 totally be [ ] not jurors need “[qualified argu- Because showing otherwise. in issues facts and issue, of ignorant constitutional raise a not does

ment juror can if the ‘It is sufficient .... volved review. habeas subject not it is and opinion or impression his lay aside Juror Sitting a “Tainted” D. the evidence on based a verdict render ” 799-800, 95 Id. in court.’ presented reject in argues that next Gall Dowd, 366 v. Irvin (quoting 2031 S.Ct. juror of one cause challenge for ing his 1639, 751 L.Ed.2d 723, 6 717, 81 S.Ct. U.S. right violated (“Barton”), court the trial if seated (1961)). properly not juror is A the Sixth under impartial hostility to dire, such he exhibits at voir of question The Amendments. Fourteenth a partiali suggest “as to award defendant fair and has seated court a trial whether 800, Id. at aside.” be laid could not ty that one, involving an a factual jury is impartial Court Murphy The 2031. v. 95 S.Ct. Patton credibility. See assessment factors different 2885, outlined have 1038, this Court 104 Yount, S.Ct. a determina making such review, weighed be (1984). On habeas 847 L.Ed.2d 81 informa nature of the tion, including: the fair there is inquires “whether court this knew; probative how juror courts’ tion state for the record in the support guilt; to a defendant’s was as information jurors [] that conclusion that infor they learned how v. when and Id.; States see United impartial.” estimation Cir.1984). mation; juror’s own (6th Smith, 1094 F.2d 748 express any knowledge; of that relevance in the support was fair there find that We juror; wheth by a partiality indications decision. trial court’s for the record commu in the atmosphere er the broader “sufficiently inflam nity or courtroom 2031; and the 802, 95 S.Ct. matory,” id. at recognizes Court Supreme The neutraliz court in by the trial taken steps apply that standards two substantive id.; Haney, 642 See information. ing this on relies primarily Gall juror challenges. jurors were (finding F.2d 1059-60 v. in Marshall announced the standard McKeen, F.2d 605 Goins v. impartial); States, U.S. United Cir.1979) (6th (concluding that 947, 952-54 (1959), in which 3 L.Ed.2d on article newspaper to a jurors’ exposure for prejudice presumed Supreme the trial of trial rendered day the second criminal histo prior learn of jurors who unfair). fundamentally as this But through news sources. ries Rose, F.2d v. Haney Court stated factors, we believe these Analyzing (6th Cir.1981), decision court’s the trial fairly supports the record the su on expressly based “was Marshall impartial. that Barton conclusion Court” Supreme power pervisory he at voir dire acknowledged Barton courts, “constitu was not over federal alleged crime and his had read about that is The standard tionally compelled.” at 206-07. Kentucky Post. J.A. in the at petitioner required when habeas that he article, stated Barton From that more conviction is tacking a state Hillsboro; that Gall was from knew Gall pre courts will “[f]ederal demanding; pre- offenses similar “been accused of had magni of constitutional unfairness sume upset I was somewhat viously^] that egre particularly absence tude in the were Policemen that the State disturbed Id. gious circumstances.” it could point in this to the involved life;” Gall had and that another have cost decision Court’s Supreme He at 207-08. J.A. of his own. Florida, children Murphy Gall was read had (1975), also stated outlined 2031, 44 L.Ed.2d J.A. past offenses. one of his parole Despite inquiry. of this the contours knowledge, Barton Despite at 209. impartiality, of fairness requirement

309 repeatedly assured defense counsel that certainly assurances are one of the factors this information did not affect feelings his a trial judge can consider determining toward Gall or how he approach would juror that whether lay “can aside his im- (“No, trial. at See J.A. 207-08 I don’t pression opinion.” Irvin, or 366 U.S. at think so once the pre- actual evidence is 723, 1639; 81 Smith, see 748 F.2d at I sented. don’t know much how stock can 1094-95 (relying part juror’s reassur- put in the Kentucky Post as as far ances). Finally, Goins, unlike in the trial forming opinion.”); an at (stating J.A. 209 judge took “appropriate steps” to assure prior that his knowledge would not make Barton would be impartial, instructing him him more inclined to guilty). find Gall not to discuss what he had learned with Barton likewise judge assured jurors. other ability to look at the evidence neutrally The factor that most supports strongly lay what aside he had read or heard. Gall’s argument is that Barton knew of Finally, after overruling Gall’s motion to parole status, adding a potentially Barton, strike the judge instructed him inflammatory piece of information about that if he were juror, as a selected the crime. We do not believe this factor could not discuss what he had learned alone outweighed the other indicia of Bar- prior to with jury. trial sum, ton’s impartiality. is ample there Given colloquy, this this case is analo- support in the record the trial court’s gous to Murphy Haney, jurors where conclusion that Barton could sit on the were not sufficiently partial warrant jury. Overall, reversal. the voir dire of Barton “indicates no such hostility” toward Gall Impartial E. Jury “as to suggest a partiality that not could be laid aside.” 800, Murphy, U.S. at Gall argues further that other factors First, 95 S.Ct. 2031. Barton made no combined to deny him his right statement as problematic as that by the impartial jury. Specifically, he argues Murphy juror who admitted “his prior that widespread pretrial publicity, impression petitioner dispose him court’s refusal to change venue, the trial convict,” id. at 95 S.Ct. 2031—a its failure to sequester jurors during statement Supreme that the Court found dire, voir and the evidence from voir dire insufficient to Second, warrant reversal. publicity “pervaded” venire, ' as in Haney, Barton learned of the infor- engendered partial jury and a fundamen- trial, mation before while Goins involved tally unfair trial. The Commonwealth standard” applied “stricter to be when jury venire, counters and the ulti- prejudicial information was obtained dur- selected, mate panel sufficiently were im- ing trial. 642 Third, F.2d at 1059. partial. information that Barton described on the In essence, argues record did not appear to be inherently prejudicial presume Court should unduly probative the trial petition- guilt, unconstitutionally er’s prejudiced, particularly considering as courts are Barton’s explicit skepticism required to in Kentucky those cases where Post an inflam matory, atmosphere assurances that circus unduly pervades he was not both influenced id.; information. courthouse surrounding and the See com Goins, See, 605 F.2d munity. e.g., Maxwell, at 953 (involving Sheppard cf. newspaper 333, 358, article discussing defendant’s U.S. 86 S.Ct.

plea offense, (1966) lesser included L.Ed.2d 600 well as (involving a “carnival trial,” defendant’s involvement another atmosphere at aggra- with intense media case). vated murder While dispositive, coverage presence courtroom, see, e.g., Murphy, 95 S.Ct. and a lack of adequate jury instructions); 2031; Goins, 605 F.2d such juror Texas, Estes v. process due that other concluded have (1965) “circus We (involving a L.Ed.2d trial, and also in this in the occurred sitting violations press atmosphere,” *42 evi- Louisiana, of extraneous introduction court); v. Rideau that

bar worked 1417, 663 jury’s 10 L.Ed.2d deliberations into the S.Ct. dence 83 373 U.S. tele- of phase penalty when into the (1963) prejudice prejudice actual (presuming confession make the diffi- defendant’s not of We need interview vised Gall’s trial. aired); Irvin, widely to ought had been prison of whether we from cult determination (involving 725-28, S.Ct. 1639 81 at 366 U.S. as well. prejudice presume in the me- accounts prejudicial extensive eight and the venire of

dia, 90% and where Misconduct Prosecutorial F. the defendant believed jurors twelve of trial). This Court prosecutorial of to a host prior argues that guilty Gall courts should consti- clarified that violated his DeLisle tactics and statements where in those cases of prejudice alleged presume instances rights. tutional “ communi- in the atmosphere ‘general the violation of Gall’s include: misconduct sufficiently inflammato- ty or his by emphasizing courtroom silent to right remain ” Murphy, (quoting 382 F.3d at ry.’ 161 of evi- misrepresentation testify; failure to 2031). Overall, 95 421 at U.S. and actions dence; statements prejudicial lacking “entirely must be such trial of sani- a fair determination Gall depriving a de- sobriety to which solemnity and ap- a host of actions other ty;22 that sub- system ain entitled fendant is of prejudices passions to the pealed and re- fairness any notion scribes to impro- these argues jury. Gall 421 Murphy, a mob.” jects verdict funda- proceeding rendered prieties 2031. 95 S.Ct. mentally unfair. extraordinary to those In contrast not did Although Gall’s counsel pre must a court where circumstances trial, are we object these infractions degree with a lower prejudice, trials sume A hearing these claims. not barred deal good with a those prejudice —even proce to a state only adheres habeas showing publicity require pretrial — render state court the last bar when dural [the] circumstances totality of that “in the has judgment on the matter ing a reasoned fundamentally fair.” Id. not trial was its expressly” “clearly and stated has on several years, recent bar. procedural to find that a rests on Murphy judgment occasions relied (6th Million, fair to sufficiently 201 F.3d Boyle v. atmosphere was trial Cir.2000) Thompson, prejudice. actual v. showing (quoting require a Coleman 2546, 115 despite 722, 735, factual some holdings These came case, Ir Sheppard (1991)). like In this to cases similarities L.Ed.2d 640 367-68; Nevers, See, F.3d at e.g., vin. addressed Kentucky Supreme Court Rivers, F.3d 385-88 DeLisle v. prosecutorial allegations of rejected Gall’s Marshall, (6th Cir.1998); v. See, e.g., Gall on their merits. misconduct Brofford (6th Cir.1985); Jenkins (“To F.2d 848-52 mercifully I, at 110 607 S.W.2d (6th Bordenkircher, Cir. F.2d any brief, in this record do not find we 1979). attorney that prosecuting conduct inconsistent been be said have could all, of many, but not This exhibits case trial.”). This a fair right with un- pervaded so aspects of trials from review. barred issue is therefore prejudice. presume fairness that courts of Dr. inappropriate cross-examination failing Examples include: Gall mentions ' closing argument; and improper Noelker and sanity exam on to conduct ask Dr. Chutkow go if free jurors Gall would informing the informa- provide with the full Gall and him determination; insanity. guilty for reason found not tion he needed to such make 1. Fifth Amendment Claim points to two occasions where the Commonwealth improperly referred to his A defendant’s Fifth Amend First, silence at trial. an officer testified right against ment pro self-incrimination that Gall “wouldn’t talk” after making sev- types tects him from several of govern eral statements after his initial arrest. First, ment misdeeds. once a defendant Second, J.A. at 63. the Commonwealth right being exercises his to silence after indirectly referred to Gall’s silence when it rights, post-arrest read Miranda stated jury: Gall “sits in this court- silence cannot be used to his detriment at room you have heard the testimony and *43 Ohio, 610, Doyle 618, trial. See v. 426 U.S. he has lied parents to his in every instance 2240, (1976); 96 S.Ct. 49 L.Ed.2d 91 Unit and told them he didn’t do it. The man Williams, 107, ed States v. 665 F.2d 109- has not acknowledged even wrong, his his (6th Cir.1981). Second, prosecution 10 the fault, crime, his he denies them. He de- commenting is forbidden from on a defen nies them to- day.”. this J.A. at 1635. testify dant’s decision not to at trial. See Despite contentions, we need not 615, California, 609, v. 380 U.S. 85 Griffin address question of whether these 1229, (1965); 14 S.Ct. L.Ed.2d 106 Rachel statements contravened the Fifth Amend- Bordenkircher, (6th v. 590 F.2d 200 Cir. ment because they comprised harmless er- 1978). While direct comments about a ror. As supra, discussed there was little decision to remain silent or testify not to dispute over whether Gall committed the clearly prohibited, are indirect comments crime; the heart of this trial was whether require probing analysis. a more See Lent he was emotionally legally disturbed or Wells, (6th 972, Cir.1988). v. 861 F.2d 975 insane when he did so. Because these Such comments warrant only reversal issue, references are not material to that they when “manifestly are intended if even violative of his Fifth Amendment prosecutor as a comment on the defen rights, they were harmless error. dant’s failure testify or were of such a character would naturally Closing Argument reasonably take them to be comments In examining alleged prosecu on the failure testify.” of the accused to Sowders, review, torial Bagby 792, v. misconduct on habeas 894 F.2d this 797-98 (6th Cir.1990). only provide Court can A relief “if the rele court should not find vant egregious manifest intent misstatements were so from such if comments to render the entire explanation fundamentally some other trial prosecu for the degree unfair to a tor’s tantamount to a due equally plausible. remarks is See Lent, Caldwell, process occurs, violation.” 861 F.2d at 975. This 181 F.3d instance, (citing 736 Donnelly DeChristoforo, v. 416 when the is “a comment fail1re 637, 643-15, 1868, U.S. 94 sponse to a claim S.Ct. 40 L.Ed.2d made defendant or his (1974)); Robinson, 431 see also v. counsel.” Darden Wain United States v. 485 168, 25, 32, wright, 2464, L.Ed.2d 23 (1988). (1986). 91 L.Ed.2d 144 assessing

whether the error amounts to a constitu analysis Harmless error applies to tional deprivation, the court must view the Fifth Amendment violations. totality This “ex Hayton See circumstances. (6th tremely Cir.1977). narrow” standard requires rever Egeler, v. 555 F.2d sal when the state cannot “demon must first determine if the We comments beyond strate a reasonable doubt that improper. Boyle, the were See 201 F.3d at any error did not way contribute 717. We then must determine if the com conviction of the defendant.” sufficiently flagrant Eberhardt v. ments were to warrant Bordenkircher, (6th 1) 605 F.2d by looking Cir. reversal to four factors: 1979). likelihood that the remarks would mislead assess- 2) independent neutral accused; than a other prejudice jury or proof’). of the record ment ex- were isolated the remarks whether de- his 3) throughout remarks were tensive; Despite prohibition, this whether prosecutor improper- accidentally presented closing argument liberately or cru- about belief personal his against ly expressed evidence 4) other whether jury; instance, jury. For id.; before cial matters See was substantial. the defendant closing declared Carroll, prosecutor 26 F.3d v. United States just isn’t [Gall] “not convinced [ ] Cir.1994). (6th Because defense 1385-87 at 1591. mean, shrewd, criminal.” J.A. any almost object to did not counsel when belief personal again voiced He analysis is made, plain error statements you probably can “I think he stated 709; F.3d at Blandford, 33 See required. intelligence the results skeptical of’ Morrow, F.2d States United He at 1584. J.A. tests. psychiatric (1991). again when he tactic once echoed schizophrenia explanation if Gall’s asked a. “powers of reason- jury’s “stretched” *44 at mine.” J.A. certainly does ing? It the Common agree that We his clearly expressed Similarly, he laced with was closing argument wealth’s credibility key the belief about personal First, statements. improper, prejudicial Noelker, who the doctor Dr. witnesses. Of their appeals cannot make prosecutors Gall, prose- the thoroughly examined had See opinions. beliefs and personal own him “I have for that known stated cutor (stating that Caldwell, at F.3d 737 181 man].” know he is fine and I along [a time personal “express cannot prosecutor “awas that Dr. Noelker He then declared of the defen concerning guilt the opinion “slant[ ] compassion” whose beliefs man of witnesses”); trial credibility of or the dant his con- gives opinions [and] his which the Carroll, (noting at F.3d 1387-88 26 at 1583. draws.” J.A. that he clusions conveying government the impropriety ishe man I who believes “He is a believe regarding belief personal “a conviction of his Eugene and in ... between standing veracity”). frown Courts the witness’s weighs destiny and I believe ultimate two reasons: upon such statements ” 1583. He him.... J.A. at heavily on convey impres- can the such comments of Dr. thought” aspects “I also stated the presented sion that evidence Toppen’s testimony and Dr. Noelker’s prosecutor, sup- known to jury, but the unusual, really unique.” J.A. “really were the defendant charges against ports the prosecutor the summed Finally, at 1581. jeopardize the defendant’s and can thus psychiatric wit- of Gall’s assessment up his solely on the basis tried right to be by stating: and evidence nesses and jury; presented the evidence guys. these don’t have believe [Y]ou with it opinion carries prosecutor’s of? It it reminds me know what You and Government imprimatur of the men three blind who me reminds jury to trust the Govern- may induce asked they taken out were were than its own judgment rather ment’s grabbed One identify elephant. view of evidence. tail, grabbed one trunk, grabbed the one imagine bizarre leg you can Young, v. United States on how an they got back opinions which (1985); also L.Ed.2d 1 see elephant looked. Caldwell, (stating at 737 F.3d at 1589.23 J.A. legitimate “the appeals personal exceed Next, mis the Commonwealth improperly inviting the advocate’s role and testimo- evidence characterized crucial on a basis jurors to convict the defendants egregious were harmless comments reasoning these accept the dissent’s 23. We cannot EED ny pertaining showing to Gall’s not otherwise rebutted. It was Dr. Chut- kow, insanity. witness, Misrepresenting facts evi- state’s own who stated possible can amount to be- dence substantial error Gall was in a “state of exacerbation” doing “may profoundly impress morning cause so killing. Finally, in cross-examining may Dr. jury significant impact have a Noelker, the prosecution on several occa- jury’s Donnelly, deliberations.” suggested sions that Dr. Chutkow disa- particu- U.S. S.Ct. 1868. This is greed with Dr. Noelker’s conclusion that larly prosecutorial true the case of mis- insane, legally 1032-34, Gall was J.A. at representation jury generally because a when Dr. clearly Chutkow stated both on has confidence that the prosecuting attor- direct examination and cross-examination ney faithfully observing obligation is that he could not Dr. challenge Noelker’s representative sovereignty, of a whose conclusions because he did not have the interest “in a criminal prosecution is not wealth of data that Dr. Noelker had. J.A. case, justice that it shall win a but that will 350-51. States, be done.” Berger United 78, 88, 79 L.Ed. 1314 These comments and misrepre (1935). Nonetheless, prosecution comprised part sentations aof broader particularly irresponsible when summariz- strategy improperly attacking in ing testimony, Dr. Noelker’s clearly which sanity defense criticizing very use lay instance, at the heart of the For case. itself, of the defense rather than address he stated that Dr. Noelker “told” ing its evidentiary on. merits head Courts that “remission legally [] [Gall] means long have castigated prosecutors when *45 feigning,” J.A. at 1585. In examining the their insanity efforts to rebut an defense record, we find that to be a distorted constitute no more than an attack on the construction of a portion vital of Dr. rationale and purpose insanity of the de testimony. prosecutor Noelker’s also fense itself. Supreme As the Court of suggested merely that Dr. Noelker Florida articulated: thought it was “possible” that Gall suffered We believe that once legislature the has EED, J.A. when Dr. Noelker policy made the accept decision to insan- definitively stated that Gall suffered from ity crime, a complete as defense to a it is Indeed, a such disturbance. as discussed responsibility prosecutor not the of the supra, Dr. Noelker’s statement that Gall place to that before the jury issue the EED was under was a crucial issue of the repeated form of criticism the defense case, one which the general.... Commonwealth had only To do so could jury appreciate prose- jury because a presented jury, that a "that evidence not to the special expertise cutor had no in the field of prosecutor, supports but known to the the reasoning mental only illness. This not defendant," charges against may the and unjustifiable excep- would create a new and jury therefore "induce the to trust the Gov- misconduct, tion to what is otherwise clear judgment ernment’s rather than its own view completely but it impro- misunderstands the of the evidence.” 470 U.S. at priety prosecutor only here. The not ex- Moreover, explained infra, gist as pressed personal opinion his casting doubt on prosecutor's argument of the was not that the expert testimony, but he went so far as to jury special exper- should believe that he had personal assert knowledge that he had of the illness, regarding tise mental but the inverse: favor, key expert witness in Gall’s and that jury that the should feel free not to take the personal knowledge,

based on his jury insanity evidence of serious- medical/scientific expert's testimony. should doubt that In oth- ly insanity simply because an defense was words, prosecutor only er not offered his desperation by guilty act of a defendant. As opinion improperly, opinion he bolstered that summarized, folks, he "When it is that bad it by explicitly referring knowledge to his short, all over.” J.A. at 1579-80. witness's character and motivations. This is calling jury expertise on the to heed his precisely Young what Court warned government prosecutor against simply as a prosecutor’s when it cautioned that a dis- expressing personal suggests insanity his beliefs to the miss defense out of hand. to the Russians waiting for yard back The insani- jury. confuse helplessly folks, is all it it is bad come. When has question policy ais defense ty review I to Now want over.... govern- courts, legislatures, plagued the skull of within cranial defense unnecessary to It is decades. ments for Defendant.... jjuries. [ similarly plague later reminded He 1579-80. J.A. at (Fla. State, 528 So.2d v. Garron the de- into be “hoodwinked to Wallace, 1988). also, People v. e.g., See Further, at 1592. insanity,” J.A. fense (1987) 87, 91 N.W.2d Mich.App. type with the peppered were comments prose a error because (finding reversible ignorance” to “know-nothing appeals insanity defense against argued cutor right to of their defendants deprive 475, 507 Percy, 146 v. Vt. State generally); defense. insanity of their fair consideration (1986) (finding improper 955, A.2d mocked instance, the Commonwealth For comments prosecutor’s prejudicial Tree, “House, Per- use of a Dr. Noelker’s a “mere constituted insanity defense insanity opposed Test” to show son Indeed, the justice”). escape attempt “smok- of a evidence the Commonwealth’s stated Kentucky Supreme asked: at 1591-92. He gun.” J.A. ing trials trial the Gall before months “[ijsn’t into a time to go convenient that insani principle “must conform And, at 1584. J.A. [schizophrenic state]?” must be defense, and the defendant ty is a analo- analogy, he elephant similar with the in accordance prove allowed description of Dr. Noelker’s gized Jewell evidence.” rules of accepted state Gall’s mental evolution of long-term Commonwealth, (Ky. 549 S.W.2d my “If wife were simple hypothetical: ato grounds other 1977), overruled on ago and eight years she pregnant Commonwealth, 623 S.W.2d Payne v. now, mean does that month pregnant one prose- upon also frown (Ky.1981). Courts is what That pregnant March? she was that, in an to rebut effort tactics cutorial you.” at 1585. telling J.A. Dr. Noelker is of insani evidentiary showing defendant’s mini- time, prosecutor theAt same appeals “know-nothing make ty, simply testimony Drs. Noelker mized the *46 testimony present rather than ignorance” calm appear could both Toppen that Gall showing in an the countering defendant’s even an observer” and sane “untrained way. States rigorous United evidentiary that he revealed and tests if examinations (D.C.Cir. Brawner, 1004 471 F.2d v. “He mentally ill: severely insane or was 1972) prosecutorial (criticizing improper as folks, Now sane, he isn’t. but may look witness’s expert an disparaging comments folks, look ‘you can’t telling us they are “just blots disease showing mental as tests J.A. at 1581. yourself.’” judge and ink”). that because jury argued to the He then used Commonwealth closing, In its trial, he must intelligent at appeared Rath- tactics. just highly prejudicial such April sane, must have been sane and insanity evidence attacking er than Gall’s simi- was of these statements 4. The tone that Gall to counter-evidence pointing prosecu- approach rhetorical lar to the sane, simply as- the Commonwealth Dr. Noelker cross-examining tor took in As he very of the defense. saulted use in which he assaulted Toppen, and Dr. issue, prosecutor began addressing the where discipline an inexact as psychology insanity defense to other compared doctors, subjective standards applying defenses, he em- defenses. Other possible oppo- polar reach can “within themselves” “facts,” insanity an but require phasized, in- examining the same site conclusions in the skull of 1221-23, all 984-88, “is contained belit- defense and dividual, at J.A. J.A. at 1579. defendant.” had used Dr. Noelker tled the tests (“Now here is 1024 J.A. at Gall. diagnosing That is the last of defense. That is line jury ought I think here that a little one your lying an Rifle and taking like Ml sum, psycho- facing to see. This is one of those little Gall’s considerable tests.”). EED, insanity evidence of counsel for logical the Commonwealth chose not to rebut that Finally, prosecution’s most Instead, directly.24 evidence expressed he egregious warning misconduct personal his belief as to the weakness and if go guilty Gall would free found not for partiality expert of Gall’s witnesses’ testi insanity. During closing, reason of mony, and he mischaracterized crucial as prosecution stated: “Now folks are we pects testimony. He disparaged going society by to turn loose on [Gall] very insanity use of an defense as the insanity[?]” reason of J.A. 1588-89. Rifle”; “last line of “Ml defense” later, repeated: he Seconds Gall “cannot he psychological belittled medical and justice defense; tools escape by retreating support the ends of used to such a equated the doctors’ testifying about safety within the of his skull!” own J.A. condition to three blind men “asked point, At another the Common to identify elephant” “you can imagine jury if wealth stated were to — opinions they the bizarre which got back.” Toppen’s testimony, believe Dr. “then turn J.A. at 1589. pleaded He then with the him loose.” J.A. at 1581. These state jury not to through let Gall loose the in ments contravened several related rules of sanity defense. In addition to having no First, they again conduct. once detracted doubt that these improper, tactics were we insanity from a fair consideration of Gall’s they easily satisfy find that the criteria of by introducing prospect defense “flagrancy” laid in Boyle. They clearly out inevitably such determination would lead prejudiced misled the Gall’s de Ly to Gall’s release. See v. Guidroz insanity. fense of The comments were not (5th naugh, F.2d 837-38 Cir. isolated, accidental or permeating the 1988); Jackson, United States v. 542 F.2d closing argument Commonwealth’s as well (7th Cir.1976); v. United States portions as other of the trial. And they (9th Birrell, 421 F.2d 666-67 Cir. involved the central issue of the case. 1970); States, Evalt v. United F.2d Moreover, explained infra, the total (9th Cir.1966); United States strength of the evidence rebutting Gall’s Lane, (N.D.Ill.1989). F.Supp. best, insanity defense was weak at not to Second, the comments violated the cardi improperly presented. mention After a prosecutor nal rule that a cannot make record, close review of the we find that the pas statements “calculated to incite the Commonwealth’s misconduct was suffi prejudices jurors.” sions and Unit ciently egregious to render trial the entire *47 Solivan, ed States v. 937 F.2d 1151 fundamentally unfair. (6th Cir.1991); Seabold, see Stumbo v. 704 Finally, respectfully disagree we (6th Cir.1983) F.2d (decrying 912 prosecu- the dissent’s conclusion that this prosecutorial “preju misconduct which torial is acceptable misconduct when jury”). Eliciting and the dice[s] inflame[s] backdrop viewed “against the of the nature image turning society the Gall loose on insanity defense this case.” The by finding him insane perhaps para is the that, the cir- explains given strong dissent digm example impropriety of such tying cumstantial evidence Gall to the —call ing jurors’ on emotions and fears rather crime, history as well as Gall’s clear than “the evidence and law of the case.” illness, insanity mental the defense was Gainey, United States v. 111 F.3d It the central issue of the case. is there- (11th Cir.1997). understandable, explains, 836 fore the dissent Indeed, infra, competent as discussed no exam- Gall to see if he was to one examined prose- perhaps explains ined mental Gall’s condition on behalf of the stand trial. This improper Commonwealth to determine if he sane to resort to tactics in was cutor’s need day only attacking insanity crime. Dr. Chutkow Gall’s defense. if the 11.42 motion in his RCr brought his not bring out would prosecutor that “the and could “unknown involved were errors insan- and direct artillery heaviest by the party known not been that have agree doubt no defense.” We ity and diligence trial, of reasonable and exercise to this central sanity was Gall’s to presented have been otherwise dissent, time to expect we, no less than Commonwealth, 648 v. Gross the court.” “heavy artil- bring out prosecutor to Additionally, a (Ky.1983). S.W.2d agree alsoWe defense. lery” against that “upon filed can motion a new 11.42 that there is persuading known, or reason- was not which ground and mental disease difference between the first mo- at the time ably But discoverable “legitimate goal.” insanity was legal v. Gilliam Common- made.” law, tion was the arse- system of is a ours because (Ky.1983). wealth, S.W.2d to achieve prosecutor to a nal available these ex- meets argues here he argu- Gall limited to goal is legitimate pertaining error ceptions because evi- introduced properly ments rooted in not become deposition did videotape testimony rather than words and dence prepa- Dr. testified until Chutkow clear passions, to inflame designed and tactics habeas hear- beliefs, the district court’s ration for prosecutorial air unsubstantiated however, We, with the Com- agree ing. legally legitimacy of a downplay and argument that this is Here, unfortunately, monwealth dubious defense. recognized and awareness presence active given had expert who having present failed to error Because the the trial. sanity, throughout his Gall assess actually examined was rea- certainly likely known in- was barrage against Gall’s prosecutor’s discoverable, Gall and because sonably largely “foul comprised sanity defense Clause raise his Confrontation failed to cognizable do with having blows” little in his appeal direct on either his take at all claim If we are to facts or evidence. motion, procedur- was claim Kentucky legislature’s deci- RCr 11.42 seriously the ally defaulted. insanity as a defense provide sion prose- murder, countenance the we can not can over petitioner habeas A methods to over- highly improper cutor’s in two instances. default procedural come in this case. come defense First, cause for can “demonstrate re prejudice default actual procedural Amendment Confrontation G. Sixth er alleged from the constitutional sulting Rights (6th Zent, F.3d ror.” Rust he was argues denied Cir.1994). can Alternatively, a defendant right to confront Sixth Amendment the claim will failure to consider show that he was not him because against witnesses jus miscarriage in a fundamental result Toppen of Dr. depositions at the present Coleman, 750, 111 tice. See Chutkow, Dr. Chut- Dr. and because Rust, (stating 2546; at 162 F.3d by video presented testimony kow’s was prejudice showing cause showing no that he tape when there if makes an “extraordi required defendant constitutionally unavailable. viola whereby a constitutional nary case *48 that failed to Gall Commonwealth counters of one who in the conviction tion resulted courts, in the state raise that claim innocent”). must examine actually We procedurally it defaulted. that is therefore excep if of these to see either Gall’s claim tions is met. Kentucky, party bring a In can pursuant to RCr

one collateral attack 1. 11.42; direct brought on the all claims of Dr. the use We find that challenge are or in collateral appeal that did in videotaped deposition However, RCr Chutkow’s under generally defaulted. Clause. 60.02, the Confrontation challenge deed violate a can raise a defendant law). requirements of At implicate points facts at trial this other particular, the trial, in there is a holding directly that unless Commonwealth Court’s unavailability, the asserted that Dr. had showing disagreed of constitutional Chutkow and with Dr. enjoys right to confront Noelker’s conclusion that defendant Indeed, jury legally “before the was insane. J.A. at examine crucial witnesses 1032. Sowders, court.” Commonwealth ended its re-cross-ex- open Stoner (6th Cir.1993).25 by Just as amination of Dr. Noelker referring F.2d Stoner, here Dr. testimony constitutional error occurred Chutkow’s with dramatic flair; Dr. testified Dr. because Chutkow video when Noelker stated on redirect open any any than in that tape competent profes- rather without mental health by the that he sional who had showing Commonwealth reviewed his data would at constitutionally was unavailable. See id. reach the same conclusions on Gall’s sani- prosecution provided ty, 212. The no reason prosecution rose to a single ask absence, Dr. and at oral for Chutkow’s question: “Except Dr. Chutkow?” J.A. at argument appeal, stated Similarly, 1035. pleadings its before the it could not recall the reason Dr. Chutkow court, district pointed the Commonwealth testimony. did not deliver live repeatedly testimony to Dr. Chutkow’s support argument presented its had Moreover, the violation did not evidence Gall was sane. at J.A. 437- error; simply surpass harmless it also re (quoting excerpts Attorney Gener- prejudice sulted in actual to Gall because it al’s memorandum of law that “Chutkow’s to his actual and dis “worked substantial testimony beyond went far merely ad- advantage, infecting his entire trial with dressing competency,” “Chutkow testified Rust, error of constitutional dimensions.” why as to he did not believe Gall was omitted). (citation at F.3d As insane,” and “Chutkow did not think Gall Stoner, guilty is no doubt that the “[t]here crime”). was insane before or after the ... substantially verdict influenced Court, inAnd its brief filed with this testimony.” Id. at videotape] [this 213-14. Dr. Commonwealth dubs Chutkow its “in- hinged This case on Dr. testi Chutkow’s sanity expert rebuttal witness.” Common- mony. jury Dr. Noelker had informed the at wealth’s Br. 24. in legally of his conclusion that Gall was sane, and, Dr. although vague, Chutkow’s But while Dr. Chutkow’s rebuttal was testimony provided standing the Commonwealth’s the thin acquittal reed between sentence, rebutting showing insanity central evidence of based on and a death he insanity. (stating in fact J.A. Gall had not conducted examination Furthermore, comply sanity.26 could times his behavior to the of Gall’s as ex- Reversing a conviction where a witness is not confronted in the witness’s courtroom testimony unnecessarily presented living per- immediacy situation. The of a through videotaped deposition rather son is lost. testimony, than live this Court in Stoner em- Id. phasized deposition is a weak "the substi- deposition 26. Dr. Chutkow’s habeas and a testimony, live tute for substitute that the prosecution series of letters between the Sixth Amendment does not countenance on a Drs. Noelker and Chutkow illustrate how Despite possi- routine basis." Id. at 213. events unfolded such that Dr. Chutkow was taped depositions, ble efficiencies "[t]he the Commonwealth's sole witness as to Gall’s allow us to Constitution does not so water though mental state even he had never actual- explicit requirement down the of live testimo- 4, 1978, ly sanity. May examined Gall’s On cases,” ny in criminal 997 F.2d at 213: prosecution Dr. Chutkow wrote the that after examination, prosecutor prefer depo- A will often to offer had concluded 90-minute testimony competent sition because the witness need that Gall was for trial. J.A. at again pros- not be secured for trial and need not Chutkow 1535-36. Dr. wrote *49 subject May explaining to the vicissitudes of cross examina- ecution on that Gall had jury.... jury undergo narcoanalytic tion before the and the refused to examina- [T]he tion, judge actually concluding compe- never that he was still see witness. The but sanity versus insani- and versus innocence while the Commonwealth plained supra, “insanity Dr. been Additionally, so-called had Chutkow ty. him as their proffered clarified, and used his testi- defense expert rebuttal witness” and his role Gall’s court believed Chutkow accordingly, Dr. mony op- greater obtained a counsel would have “compe- at a testifying he was merely that only evidence challenge portunity only that his answers and tency hearing,” regard- put forth the Commonwealth had This belief competency. Gall’s addressed ques- no sanity. There is thus ing Gall’s Gall only examined he had because arose a dramatic that the violation bore tion was because he competency purposes, trial, render- on the outcome of impact than seated rather in isolation taped defense. ing prejudice actual to Gall’s and because jury, live front of a fundamentally misunder- The dissent questions. J.A. prosecutor’s nature testimony the role Dr. Chutkow’s stands testimony, on this 413, 424, 427. Based the benefit of in this case. With played trial presence at that his beyond it is doubt deposition, the Dr. later habeas Chutkow’s misperception, that have corrected fact that Dr. Chut- appreciates the dissent clear Commonwealth making it that testimony only to intended his kow himself role in far more central placing him a was and thus believes his competency, address no the time—if for he realized at than trial. value” in the testimony served “little juries that do than the fact other reason n Dr. not view Chutkow’s But the did competency, but issues not determine deposition, as we light words in of his later questions guilt fundamental resolve the state, assessing his mental and made no Dr. Chutkow tent. J.A. at 1537. explained, how- sanity as to whether Gall He either letter would be difficult. mention in ever, or at the time of the legally by using sane insane infor- was sources of various testified, further, this was because As he later examining crime. by he mation and he conducted had the examination provide opinion Gall’s able to on would be competency. J.A. sought Gall's to determine the trial. state mental time at 398. seeing 10 occasions and re- After Gall on prosecutor a Commonwealth On June history viewing previous and hos- his mental Chutkow, Drs. Noelker and wrote to both records, pitalization Dr. Noelker wrote to the whether, light am- asking of Gall's claimed September explained on 19. He his nesia, testify could as to Gall's either doctor legally was insane on the belief that Gall at the of the crime. "I need mental state time morning April behavior that that his and expert your advice in this re- the benefit of morning "primarily controlled” re- gard....” at 1538. Both doctors J.A. likely the end- “highly psychotic” that was act sponded request. ex- to this Without further psychopatho- product a chronic severe and Gall, amining wrote on Dr. June Chutkow logical at 1545. He further disorder. J.A. report his memo- that because Gall could not suggested be considered for that Gall never ry, acquire the direct informa- "I cannot most community. open release to state.” J.A. at 1539. tion about his mental later, prosecu: day One the Commonwealth Nevertheless, opined he did not be- he to Dr. tor forwarded Dr. letter Noelker’s paranoid from acute lieve that he suffered Chutkow, explaining that the conclusions schizophrenia, suspected also that the absolutely we essential that therein "makes way repress either a claimed amnesia was during you a witness the course of this use he painful or a fabrication. As memories testimony.” anticipated J.A. trial to rebut his testified, regard- later he no statement made Chutkow, despite receiving Dr. at 1546. ing sanity, prepared to do Gall's and was letter, respond to the testified that he did not so. J.A. at 403. also had received no He letter, prosecutors did not meet to dis- between the time of additional information status, mental and did cuss the trial or Gall's letters the June 12 letter that initial information additional not seek out receive making sanity him in would have assisted history was de- psychiatric on Gall’s determination, and examined Gall after never report scribed in Dr. Noelker's competency examination. J.A. at the initial necessary to draw conclu- would have been sanity. J.A. at 407-10. as to Gall's sions Nonetheless, Responding prosecution's June 8 let- deposed ter, he was thereafter soon emphasized given Dr. Noelker testimony played videotape, and that complicated pro- claimed amnesia Gall's file, jury. yet at trial for the a conclusion as to had not reached *50 sanity questions expert and rebuttal witness. The dis- prosecutor’s now. The do sufficiently were responses Dr. sent’s assertion that Dr. Chutkow’s Chutkow’s testi- jury very likely ambiguous that the mony was of “little value” thus flies in the that Dr. Chutkow had stat- have concluded face of even the Commonwealth’s under- 318, legally was sane. J.A. at ed that Gall standing of its own case. certainly that Later courts believed

321. Court, relying I case: the Gall to be the 2. testimony, rebuttal con- on Dr. Chutkow’s Nonetheless, agree we cannot that sharp conflict in cluded that “there was Gall has shown cause for his failure to as to whether Gall was insane the evidence previously. again, raise the claim Once 112; all,” at the district at 607 S.W.2d and argues that Gall “cause” exists because his Dr. court below concluded that Chutkow trial him they counsel failed inform that opinions” “some on Gall’s proffered had Moreover, taking deposition, were Dr. Chutkow’s and prose- at sanity. J.A. 43. actively encouraged interpreta- only cution Gall his counsel became that Dr. had aware of the error Dr. by suggesting tion Chutkow when Chutkow was Dr. conclusion disagreed deposed Noelker’s for habeas proceeding below. instance, For on was insane. He also states that cause exists due to cross-examination, prosecution pep- ineffective assistance of counsel. Both ar about pered questions Dr. Noelker with First, guments unavailing. are orig can possibility psychiatrists that two ignorance inal that Dr. was Chutkow de condition, person’s mental disagree over posed testimony provides lieu of direct 984-86, J.A. at and closed the cross-exami- support no for his assertion that he later Dr. by emphasizing nation Noelker’s fact, lacked awareness of that both at trial “in that Gall was insane was conclusion (when tape played was your Dr. Chutkow.” dispute with brother him), in front in preparation for his (re- also at 1034 J.A. at 1032. See J.A. Second, appeal. state collateral his claim Dr. final sponding to Noelker’s statement of counsel error as “cause” is insufficient any competent on redirect —that mental because he has not shown that his counsel professional health who had reviewed constitutionally was ineffective under conclu- data he had would reach the same Washington, Strickland U.S. “Except sanity by asking, sions on Gall’s — (1984), 80 L.Ed.2d 674 see S.Ct. Chutkow?”). Dr. infra, requires. which Coleman See 501 may appreciate While the dissent Moreover, 2546. S.Ct. testimony critical role Dr. Chutkow’s right there is no constitutional because trial, prosecution in the has played appeal, counsel a state collateral a de emphasized testimony sanity his as to error argue fendant can not that counsel’s through this from the time of the trial stage was a cause for default. prosecutor letter the wrote to appeal. The September 1978 em-

Dr. Chutkow Dr. critical role: “it phasized Chutkow’s There remains the alternative absolutely you essential we use [is] route that default can be excused because trial to during a witness the course of this recognize the claim would our failure to anticipated testimo- [Dr. Noelker’s] rebut miscarriage of result in a “fundamental ny” J.A. at 1546. that Gall insane. Coleman, 501 U.S. at justice.” See trial, prosecution At used words to high 2546. This is a burden for undermine Dr. Noelker. And before meet, occurring Court, petitioner habeas respectively, district court and this “extraordinary Schlup, case.” argued that Dr. Chut- the Commonwealth sane, Specifically, a U.S. at 115 S.Ct. 851. had kow concluded that Gall “it is petitioner in- must show that that he served as the Commonwealth’s habeas *51 justice when a trial carriage of results no reasonable not that likely than more way in likely than not stood [defendant]” convicted error more juror have would light of new insanity. error or acquittal the claimed of due absent of a verdict 851; 327, see at 115 S.Ct. Id. evidence. described su- Because of the other errors 743, Schotten, 201 F.3d White v. also new and need not address this pra, we Cir.2000) (6th that a fundamental (stating question. difficult when consti justice of occurs miscarriage resulted “probably error tutional of Counsel H. Ineffective Assistance actually inno who was conviction of one he was Finally, argues that Gall cent”). Schlup explained right his to ef deprived of Constitutional court is to of the habeas the task because of counsel. There were fective assistance innocence,” it “actual question focus on the representation clearly shortcomings that was either ex evidence can consider primarily But be received at trial. Gall at trial. See or unavailable cluded himself, we represent chose to cause Gall 327-28, 115 851. S.Ct. U.S. at do not find that the constitutional standard supra, we explained reasons For the v. was violated. See Faretta of Strickland the Confrontation indeed believe 806, 835, California, 422 95 S.Ct. U.S. likely way stood in the Clause violation 2525, (1975); States 45 L.Ed.2d 562 United insanity. Given for reason of acquittal Cir.1990) (6th Smith, 907 F.2d at his habeas Dr. statements Chutkow’s waiving right his (stating that after the Common- deposition, it is clear counsel, complain about appellant “cannot to rebut Gall’s wealth had no evidence quality arguing of his own defense insanity the time of the showing of at that it amounted ineffective assistance short examination killing. Dr. Chutkow’s counsel”). was merely whether Gall had assessed trial at the time of competent to stand IV.

trial, doctors who examined while the two determining his purpose for the Gall challenges aspects penal- Gall also the crime both con- sanity day on the ty of the trial. phase legally insane. It is cluded that he was also clear that the Confrontation Clause Penalty A. Phase Instructions misper- Dr. sparked violation Chutkow’s in- argues penalty phase that the Gall trial, ceptions allowing role in the about his his given structions at his trial violated testimony competent his Gall rights Eighth and Fourteenth Amendment misleadingly sup- used to stand trial to be Ohio, defined Lockett v. as port argument the Commonwealth’s (1978).27 57 L.Ed.2d 973 legally at the time of the Gall was sane challenges aspects He three of the sen- words, crime. In other had not been First, challenges tencing instruction. he violation, the constitutional we believe that mitigating circum- the instruction: “The juror likely it is that no reasonable as you may stances consider are follows beyond a guilty have found Gall reasonable Second, challenges ...” at 1622. he J.A. poses question thus doubt. This case whether, Coleman, findings “Your and ver- the instruction: Schlup under caselaw, and must be a fundamental mis- dict must be unanimous Circuit’s ness, in the form of Dr. Noelker's and Dr. 27. Gall also claims that his sentencers-both judge Eighth jury and trial Toppen's testimony, well as extensive testi- —violated rights under Fourteenth Amendment history. mony personal medical of Gall’s they adequately Lockett did not con- because evidentiary chal- We need not address this mitigation presented sider evidence of his lenge sentencing decision because we Specifically, argues crime. that there to the find that the court's instructions supporting the insan- "massive evidence” constitutionally were flawed. ity defense and other evidence of mental ill- 2546; foreman,” alleg- 501 see Coe v. by the J.A. signed (6th Cir.1998). jurors Bell, ing this communicated 161 F.3d found factors had to be any mitigating Third, in- challenges the

unanimously. *52 a jurors to find that that needed struction disagree We with the Common by preponder- mitigating factor existed wealth’s contention that Gall defaulted this the evidence. ance of claim. Commonwealth asserts that vio- that these instructions argues Gall because attack in Gall’s collateral motion law and the Kentucky lated both Constitu- Kentucky the did not attack courts the jury prevented the tion because instructions, penalty phase jury that attack mitigating considering giving effect Kentucky was waived Criminal Rule under in of Lockett. The Com- factors violation (KCR) 11.42, requires which the motion to pointing first out monwealth counters grounds holding state “all for the sentence object these instruc- did not that Gall Thus, argues, Wainwright invalid.” it the trial, in appeal post- at them his tions prejudice” “cause and is required standard courts, Kentucky appeal conviction the reject argument. here. We through this claim has been lost so that defense, Teague default. It also musters Although object did not to the in- Gall improperly seeking trial, that is the arguing Gall structions at the con- Commonwealth constitutional rule. As- benefit of “new” challenge that he ap- cedes did them on arguendo that this claim is not suming Thus, peal. up Br. at it See Gov’t invalid, also contests it the Commonwealth Kentucky Supreme apply Court to on its merits. procedural barring either its rule review case; if or to address the merits of the review, errors on On habeas clearly expressly applied pro- its they unless instructions are not reviewable claim, cedural bar to that then federal due deprive a defendant of constitutional precluded. Boyle, habeas review is See Smith, Long v. 663 F.2d process. See Jabe, 716; 201 v. F.3d at Couch 951 F.2d Cir.1981). (6th simply They 23 must not (6th Cir.1991). 96 But the court they must “so infect[] be erroneous — procedurally Gall I did not rule that Gall resulting entire trial conviction Rather, defaulted this claim. it endorsed process.” Henderson v. violates due the merits.28 Because the instructions on Kibbe, 145, 154, 1730, 52 97 S.Ct. whether it did not even consider (1977). Meanwhile, if a pris 203 L.Ed.2d through fail- claimed error was waived defaulted his federal claims oner has trial, object certainly it did not ure to independent pursuant state court to an “ express’ ‘clear and statement of meet the rule, procedural federal adequate state requires. procedural bar” that this Court is barred un habeas review of the claims Coe, (quoting Harris v. 161 F.3d satisfy the “cause and prisoner less the can Reed, 255, 258, “that failure to prejudice” test or show (1989)). The claim is in a funda 103 L.Ed.2d 308 consider the claims will result Coleman, justice.” therefore not defaulted. miscarriage mental jury following: made it clear that the said the The instructions 28. The Gall I Court penalty the death could not recommend the trial court confined In its instructions be- aggravating circum- unless unanimous verdict it found consideration aggrava- to whether the murder was commit- yond stances a reasonable doubt that rape, existed, allowed the ted in the course of but ting but that even in circumstance specific mitigating cir- to consider four event, though might and even it believe cumstances for which there was some sem- outweighed aggravating circumstance evidentiary and a fifth or blance of basis mitigating might find circumstances it such category, “whether or not there catch-all exist, it still did not have to recommend present- mitigating are other circumstances penalty. death evidence, through above.” ed not listed giving failed, others from effect prevent Gall appeal direct After ‘sen- they believe calls evidence appeal. While 11.42 RCr brought his ” Id. at failure to less than death.’ tence decries Gall’s Commonwealth Eddings, 455 U.S. at (quoting phase instructions S.Ct. penalty challenge the 869). disagree in the no choice We had appeal, Gall Teague proceeding, argument 11.42 “In an RCr Commonwealth’s matter. were of these application raise issues which cannot bars the retroactive movant appeal.” Wil on direct holdings. and decided raised Commonwealth, 975 S.W.2d son First, McKoy did Mills and sum, waive his did not (Ky.1998). a “new rule” as term not announce claim, should bring this right to a new Teague, by Teague. Under defined *53 in laid out the standards under considered ground or is one that “breaks new rule Cupp.

Kibbe the states or obligation a on imposes new put To it differ Government. the Federal if rule ently, a announces new case asserts The Commonwealth by precedent dictated exist result was not Maryland, in out Mills v. that the rule laid at the the defendant’s conviction ing time 1866, 1860, 100 367, 108 S.Ct. 486 U.S. 301, at 109 S.Ct. 489 U.S. became final.” (1988) McKoy in and echoed L.Ed.2d 384 determination, a this fed 1060. To make Carolina, 433, 110 494 U.S. S.Ct. v. North date eral court must first determine the (1990), 1227, 369 on which 108 L.Ed.2d be upon which the defendant’s conviction relies, a “new rule” constitutes Gall now Bohlen, Caspari v. 510 came final. See Lane, 288, 489 109 Teague v. U.S. under 948, 383, 390, 127 L.Ed.2d 114 S.Ct. U.S. (1989), 1060, 103 and can L.Ed.2d 334 S.Ct. (1994). survey legal It must then “the applied retroactively on not be therefore if a it then existed” and ask landscape as raised, question When habeas review. court, considering the defendant’s state Teague applies is a thresh as to whether claim at the time his conviction became federal habeas case. See old in a issue final, compelled by have “felt exist (6th Burke, 760, 764 83 F.3d Daniels v. ing precedent to conclude that rule Cir.1996). required by the Constitu seeks was [he] Singletary, 520 U.S. will the Mills deci- tion.” v. Although we discuss Lambrix 518, 527, 1517, 137 L.Ed.2d 771 infra, its 117 S.Ct. sion in more detail fundamental (1997) (citation omitted). If the state rule from had was that the Lockett holding found the “dic there was court would have rule been violated because 528, by at 117 S.Ct. precedent,” tated id. that reasonable probability a substantial 1517, improperly attempt then claim is in- jurors, receiving judge’s upon Teague. ing apply a “new rule” under case, attempting in in this structions form complete the verdict as instruct- we find Applying two-part inquiry, ed, they may thought have were well comprise in Mills did not decision considering any mitigat- from precluded Teague. The final a “new rule” under jurors agreed all 12 ing unless evidence case came in March 1981 decision Gall’s particular on existence of such petition for certiorari was denied. when his circumstance. 989, 101 Kentucky, 450 U.S. See Gall v. (1981). McKoy, at 1860. In 67 L.Ed.2d 824 At Id. 108 S.Ct. time, firmly holding, stating principle Mills the Lockett repeated making jury that a can “not be principle again place, Lockett had been clear mitigat- considering, as precluded violated because it was clear factor, any aspect of a defendant’s required ing to make decision had been its any of the circum- based circumstances it had unani- character record and found, that the mously allowing juror “one stances of the offense defendant holdout (8th Cir.1995); Collins, as a for a than proffers basis sentence less Cordova v. Lockett, (5th 167, 173 Cir.1992). death.” 438 U.S. 98 S.Ct. F.2d holding 2954. We find that the Mills on Additionally, arguendo even if which Gall now relies was in fact dictated Mills announced a “new rule” as defined rule, and that a the Lockett state court by Teague, we find that holding its meets facing claim even 1981would have the second of Teague’s two “narrow ex compelled apply felt Lockett as Mills ceptions” to the nonretroactivity of new Indeed, ultimately did in 1988. as Mills Lambrix, rules. clear, nothing itself makes it did more than Teague, 1517. Even under a new rule can to a apply Lockett new factual situation: applied retroactively when it establishes decisions, Under our it is not relevant one of the “watershed rules of criminal whether the barrier to the sentencer’s procedure implicating the fundamental mitigating consideration of all evidence accuracy fairness and pro the criminal statute, Ohio, interposed by v. Lockett O’Dell, ceeding.” 521 U.S. at court, supra, sentencing [or] Ed Supreme S.Ct. 1969. The Court often Oklahoma, dings supra. ... The counsel, points right announced in same must be true respect to a Wainwright, Gideon v. *54 juror’s single against holdout vote find 792, (1963), S.Ct. 9 L.Ed.2d 799 as the ing presence a mitigating of circum paradigm rule possessing “primacy stance. centrality” to fall within exception. 375, (emphasis 486 U.S. at 108 S.Ct. 1860 See, Parks, e.g., 484, 495, v. 494 U.S. Saffle added). In reemphasizing addition to its 1257, (1990). 110 S.Ct. 108 L.Ed.2d 415 Lockett, 376-77, origins in see id. at 108 We need look no further than the language (stating S.Ct. 1860 that “the Court has of Mills McKoy to see that princi greater certainty demanded even that the ple they espousing were a wa constitutes jury’s proper conclusion rested on procedure “implicit tershed concept Lockett, 605, grounds”) (citing at 438 U.S. O’Dell, liberty.” of ordered 521 U.S. at 2954), 98 S.Ct. the Mills relied on 157, 117 S.Ct. 1969. Mills stated that it States, 740, Andres v. United 333 U.S. 68 “height would be the of arbitrariness” to 880, (1948), S.Ct. 92 L.Ed. 1055 half- a require agreement mitigat unanimous on century penalty very old death reversal on 374, ing circumstances. 486 U.S. at 108 Andres, In grounds. similar the Court S.Ct. 1860. granted finding a new trial after fault in “probab[ly]” instructions that induced a power The decision to exercise the juror “reasonable” to conclude that una States execute a defendant is nimity was needed to a “qualify” verdict of any unlike other decision citizens and guilty in preclude order to a death sen public upon officials are called to make. 752, tence. Id. at 68 S.Ct. 880. Given Evolving decency standards of societal Lockett, Andres, and the Court’s clear lan imposed have a correspondingly high re- Mills, guage in Mills did not new “break[ ] quirement reliability on the determi- ground or impose[] obligation a new nation that appropriate pen- death is the the states or the Federal Government.” alty particular in a case.... our Under 301, Teague, 489 U.S. at 109 1060. S.Ct. cases, the sentencer must be permitted 676, Snyder, See DeShields v. F.Supp. 829 mitigating to consider all evidence. The (D.Del.1993) (“Mills nothing 688 more juror possibility single that a could block than a 'mere extension of existing then consideration, consequently such re- scenario.”). precedent to a new factual quire jury impose pen- the death disagree

We therefore with the Fifth and alty, is one we dare not risk. Circuits, Eighth which have found that Mills, 383-84, Mills announced a “new 486 at 108 1860. Teag rule” under S.Ct. Lockhart, 676, McKoy, ue. See Miller v. 65 F.3d separate In his concurrence 302, 322, 109 S.Ct. possi- naugh, 492 U.S. that the Kennedy reiterated Justice (1989) (reversing death L.Ed.2d 256 a death can render juror bility that one not jury instructions did because imposition sentence “represent[ ] sentence mitigating jury relevant system permit to consider through capital punishment Lockett, evidence); arbitrary capri- 438 U.S. can be described 453-54, pen- down Ohio death (striking 110 S.Ct. cious.” 494 U.S. J., rea- concurring). For these consideration (Kennedy, alty precluding law for factors). Addressing sons, elaborated mitigating for those further relevant Dixon, v. jury in Williams instruc- allegedly Fourth Circuit unconstitutional (4th Cir.1992), we tions, California, Boyde F.2d 455-56 the Court assuming arguendo that even conclude rule,” (1990) a “new in- jury

that Mills announced that a L.Ed.2d 316 stated to our notions is so central new rule when violates struction Lockett the sec- falls within liberty that it ordered likelihood that there is a reasonable sum, Teague Teague exception. ond challenged instruc- jury applied has habeas granting us from not bar does consider- way prevents in a tion on Mills. relief based evi- constitutionally relevant ation of need Although dence. defendant likely more that the establish address the mer We therefore impermissibly in- not to have than been argument. its of Lockett-Mills instruction, capital sen- hibited govern the consti progeny Lockett and its inconsistent tencing proceeding is not guide can how states tutional limits on Amendment if there is Eighth with the considering the sentencers’ discretion such an inhibition. possibility *55 may convert mitigating circumstances added). (emphasis making Id. impris a term of a of death into sentence determination, in- courts should not view supra, the essential onment. As stated isolation, a ‘com- but “with structions is that the sentencer rule from Lockett understanding of the instruc- monsense considering, as precluded from shall not be light in the all that has taken tions factor, “any aspect of a defen mitigating a ” Johnson, trial.’ 509 U.S. place at the any of the character or dant’s record 367, (quoting Boyde, 113 S.Ct. 2658 the offense that the de circumstances of 1190). 381, 494 U.S. at 110 S.Ct. a as a basis for sentence proffers fendant Lockett, 604, 438 U.S. at less than death.” a. Thus, a basic test of the S.Ct. arguments re reject We Gall’s

constitutionality penalty sentences death instructions penalty the first garding two instruc jury statutes and is whether the First, there is no constitu challenged. he permitted jury to consider tions have requiring that prohibition tional on states’ Bly evidence. See mitigating all relevant 307, proved 299, mitigating circumstances Pennsylvania, stone v. 494 U.S. See, (1990) e.g., the evidence. 1078, preponderance of 108 L.Ed.2d 255 S.Ct. 275-76, jury Lashley, because Delo v. 507 U.S. (upholding death sentence (1993). consider, Sec specifically “was instructed to as L.Ed.2d ond, evidence, challenged instruction used any matter concern mitigating aspect “may” was fact one ing the or record of the defen the word character court dant, offense”); a longer of his set instructions. circumstances Texas, jury describing circumstances see also Johnson v. 509 U.S. (1993) using the mitigation; consider as 125 L.Ed.2d 290 could with Lockett “may” comported word (upholding penalty death statute because not limited jury it was informing within the “effec mitigating evidence was specific examples jury); Penny Ly- tive reach” to the four enumerated, penalty The death shall not be recom- consider other also could but find, Indeed, you beyond mended unless rea- it is when courts circumstances. doubt, cir- aggravating sonable that one and “shall” such as “must” use words cumstance exists. mitigating factors describing .possible Lockett, they risk they run afoul of pen- You shall not recommend the death juries may con- limiting the circumstances alty you weight believe the of the unless the death sentence. See weighing sider circumstances, any, if aggravating ex- 110 S.Ct. 1078 Blystone, cir- weight mitigating ceeds judge’s instruc- (concluding that because cumstances, any. if multiple consider jury tion allowed though you may aggrava- Even find an factors, unduly and was not mitigating circumstance, you do not have to ting Lockett). it did not violate “mandatory,” penalty. recommend the death argument re- only other Because Gall’s any though you may ag- Even believe they two is garding these instructions gravating outweighs any circumstance law, does not with state comport did not mitigating you circumstance do not have law. Habe- an issue of constitutional raise penalty. to recommend the death inappropriate on the review is therefore VI, at 1623-24. In Instruction J.A. challenges. first two instructions Gall findings “[y]our court stated that and ver- must he unanimous and must be dict b. (em- signed by the J.A. at 1624 foreman.” unanimity instruc- challenge of the added). phasis challenge process tion does raise due Meanwhile, judge provided also also find habeas review. We cognizable on ques- form that asked special verdict five persuasive on its merits. argument jury, based the instructions tions first, following: It asked the given. i) The instructions form the murder whether Gall had committed instruc- perusal A close of the relevant second, committing rape; whether while necessary alleged assess an tions is influ- was committed under the the offense I, the In Instruction Lockett violation. disturbance; of extreme or emotional ence your now judge jury: “[i]t informed the *56 third, was committed whether the offense punishment must duty to determine what insane; legally was at a time that Gall You will deliberate imposed upon [Gall]. be fourth, mitigating age whether his any mitigating or whether and determine factor; fifth, any whether there were and circumstances, as are herein- aggravating The four mitigating factors. first other defined, In at 1622. after exist.” J.A. “Answer, jury to instructed questions II, the trial court instructed Instruction fifth 1626-26. The or NO.” J.A. at YES murder jury “may that it consider” the any mitigating asked them to list question aggrava- rape the course of a as an during questions All five re- they factors found. circumstance, “may that it consid- ting and sign jury to quired the foreman of the factors of a number of enumerated er” one the answer. beneath disturbance, legal sanity, (age, emotional etc.) mitigat- circumstances” as or “other ii) McKoy Applying Mills and In ing circumstances. J.A. at 1622-23. nearly identi IV, they were judge instructed that Because Instruction Supreme that the Court cal to instructions presumed to be innocent of the Gall was Lockett, more violate you be- has found to aggravating circumstances “unless this Court evidence, beyond problematic than instructions a rea- lieve from the Lockett, we hold that doubt, to violate guilty of those has found sonable V, form in this and verdict In the instructions at 1623. Instruction crimes.” J.A. A unconstitutionally defective. case were judge instructed: arguably tions even is construable as the relevant cases illustrates close at look suggesting jury could leave an an- why this is so. proceed to the next swer blank and Mills, at 108 S.Ct. stage in its deliberations. capital reversed a sen- Supreme whose flaws were tence for instructions 378-79, Id. at 1860. The Court trial in this case. The similar to those rule therefore concluded that the Lockett a verdict form court had distributed was violated there was: because questions regarding included individualized probability a substantial that reasonable circumstances, mitigating aggravating and jurors, in- upon receiving judge’s jurors were to answer indicating that the case, attempting and in structions “yes” question. “no” to each On the or complete the verdict form as instruct- aggravating portion regarding of the form ed, they may thought well have were (Section I), in- the court circumstances precluded considering any mitigat- jury “unanimously that if con- structed ing jurors agreed evidence unless all 12 aggravating circum- [an clude[d] particular on the of a such existence proved, you so should had been stance] cases, circumstance. Under our yes. you If not so question answer the are permitted sentencer must consider satisfied, you then of course must answer all mitigating possibility evidence. The (quoting no.” Id. at 108 S.Ct. 1860 single juror that a could block con- such instructions). gave trial The court then sideration, consequently require cir- mitigating same instructions jury impose penalty, the death is one (Section form). II of cumstances See we dare risk. III jury id. form then Section Id. S.Ct. 1860.29 See also Kor weigh jury only instructed the those Scroggy, denbrock v. 919 F.2d 1110- mitigating “yes” circumstances marked (6th Cir.1990) (en banc) (concluding that Section II. See id. possibility” there was a “substantial The Mills Court concluded a rea- jury construed its instructions juror likely sonable not have inter- mitigating aggrava “mean that as well as preted jury the instructions form to ting circumstances could be found if require unanimity answering before “no” unanimous”). jury presence mitigating of a circum- McKoy, instead The Court in stance—but would have concluded unanimity “yes” the absence of found instructions from a appropriate meant the answer was “no.” similarly North Carolina trial to be flawed. The questions instructions asked on four jury was instructed to mark each jury “Issues”: Issue if the One asked “yes” “no.” Although answer it was unanimously aggravating found circum- clear “yes” that the could not mark *57 stances; jury if any in Issue Two asked the unan- unanimity, box without nothing imously found judge dispelled mitigating the said circumstances probable the (enumerating each possible inference that “no” is the circumstance opposite of “yes,” separate question); in a appropriate therefore the an- Issue Three asked jury unanimously swer if the inability mitigat- to reflect to answer a found the question in Nothing ing the affirmative. in outweigh aggra- circumstances to the judge’s circumstances; the verdict form or the vating instruc- Issue Four asked if scheme, 29. The Court elaborated that the as cumstance found to exist. But unless all 12 reasonably interpreted, would have allowed agree mitigating could that the same circum- following "disturbing” hypothetical: the "[a]ll present, per- they stance was would never be jurors might agree mitigating that some engage process weighing mitted to in the or present, circumstances were and even that any appropriateness deliberation on the mitigating those signifi- circumstances were penalty.” death Id. at 108 S.Ct. 1860. enough outweigh any aggravating cant cir- unanimously aggrava- likely would also have assumed that jury found the form, to result in ting question circumstances sufficient fifth on the asking “[w]hat at factors, the defendant. See id. 436- death for mitigating any, you other if do Mills, 1227. Pursuant to S.Ct. added), find,” (emphasis at 1626 J.A. also that this scheme violated Court concluded required unanimity. As Mills stated re- jury required to make “[T]he Lockett. form, garding part a similar of its verdict only on circum- its decision based those given indicating instruction was what “[n]o finds,” unanimously allowing stances should if but do some not all of juror prevent holdout the others “one jurors” believed that such a mitigating they that giving effect to evidence factor existed. See id. at 108 S.Ct. than believe calls for a ‘sentence less 1860. Just as in both Mills and ” 1227 (quot- Id. at 110 S.Ct. death.’ McKoy, quite Gall instructions made Eddings, at 102 S.Ct. ing probable disturbing in- hypothetical 869). that, just pointed The Court also out jurors finding mitigating dividual factors Mills, jurors agree if all 12 “even being give but unable to effect to those mitigating there are some circum- unanimity. factors because of a lack of stances, prevents scheme North Carolina’s “height Such defect constitutes the of ar- sup- giving them from effect to evidence bitrariness,” “precise and is the defect ... porting any of those circumstances that compelled [Court] to strike down they unanimously find the existence unless Maryland McKoy, scheme Mills.” the same circumstance.” Id. 440-41, 494 U.S. at 1227. The instructions and verdict form from We find this case more clear-cut than trial from the same de- suffer basic Kordenbrock, banc, Court, where this en McKoy, despite fects as those in Mills and part reversed death sentence due in to a of difference. as in a few wrinkles Just Mills, Mills violation The Court held that “[b]e- questions asked in a clear were format; indeed, jurors ... told that aggra- cause the were “yes” or “no” the form “Answer, unanimous, jurors vating or factors had to be but ordered the Yes No,” listing alternatives. at exactly no other J.A. not mitigating were told what role Mills, then, following 1625-26. Just as play, it have factors would been reasonable judge’s “[y]our find- instruction mitigating for them to assume that factors unanimous and ings and verdict must be unanimously had to be found as well.” 919 foreman,” signed must be a reason- words, at F.2d other the Court juror likely able have assumed requiring concluded the trial court’s “yes” to indicate to one the enumerated circumstances, unanimity for aggravating circumstances, mitigating unanimity was combined with its silence on whether Otherwise, appropri- “no” was required. unanimity required for the miti- Mills, just “nothing And as in ate. circumstances, likely rea- gating induced inference. judge dispelled” said jurors mitigating to assume that sonable 1860; Mills, see required unanimity. circumstances In this Kordenbrock, also 919 F.2d 1109 case, jurors flatly were told: “Your (“[Cjommon juries suggests sense [ ] must be unanimous findings verdict report do not leave blanks and do not signed by must be the foreman.” J.A. mitigating themselves as deadlocked over Kordenbrock, then, we at 1624. Unlike *58 circumstances after reasonable delibera- jurors as to how speculate need not even tion, they expressly ... are in- unless silence, the court’s because the interpreted so.”) (quoting structed to do Kubat v. it re- findings court referred to all when (7th Cir.1989)) Thieret, 867 F.2d unanimity. quired omitted). (internal quotation marks Given attempts to de- The Commonwealth’s judge’s findings the that all instruction unanimous, unavailing. The juror the fend the instructions are must be reasonable argument permitted jury only is to the miti- primary consider Commonwealth’s V, which informed point gating unanimously. to Instruction that it factors found not “have to recom- jury the that it did See 494 U.S. at 110 S.Ct. 1227. if it penalty” the death even found mend Our decision in Mills was not limited to circumstance, if or even it aggravating jury required cases which the any one aggravating concluded that cir- impose penalty the death if it that finds outweighed any one mitigating cumstance aggravating outweigh circumstances Br. at 31. circumstance. Gov’t We be- mitigating circumstances or that no miti- these instructions did not ne- lieve gating circumstances exist at all. Rath- ju- the clear communication to the gate er, that it ‘height we held would be the any mitigating rors circumstances to of require allow or arbitrariness.to they gave effect had to be which found imposition penalty’ of the death where 1 unanimously, their determination juror prevent was able to the other required a death sentence them to of giving mitigating from effect evi- weigh aggregate aggravating circum- dence. against aggregate stances mitigating 439-40, Id. at 1227 (emphasis they circumstances that so found.30 This added). That is the same defect intro- v. on places ground Instruction the same jury duced instructions and form Four,” McKoy’s “Issue which the Su- example, juror this case. For if single a preme found insufficient to cure any believed Gall had not shown unconstitutionality unanimity of the mitigating three circumstances listed on instruction. Issue Four instructed the form, jury even if the remainder of the McKoy jury that it impose could jury firmly believed that all three circum- if penalty unanimously death it found the exist, stances a reasonably likely did inter- aggravating circumstances to be “suffi- pretation unanimity of the instruction ciently substantial” relative to the miti- gating required jury would have Despite gov- circumstances. answer presence “no” to the argument McKoy mitigating ernment’s that that of each distinguished interpretation instruction circumstance. Under one case from Mills, V, the Court was not convinced. The Instruction this result would have re- infirmity quired jury instruction did not cure the render sentence of death;31 the unanimity requirement alternative, because still under the it would 30. The third and fourth sentences of Instruc- death sentence not be warranted under "open-ended” tion V are far less than the the second sentence of Instruction V. Similar- "[ejven suggests. ly, Commonwealth Both sentences the trial court instructed that light though you may any must be read in aggravating the combination of believe cir- "[y]ou outweighs any mitigating Instruction I—that will deliberate and cumstance circum- any mitigating aggrava- you determine stance whether do not have to recommend circumstances, ting penalty.” (emphasis death ed). J.A. at as are hereinafter add- de- fined, again, any Once describing this clarifies that if exist”—Instruction II— aggravating aggravating mitigating individual circumstance out- circumstances the jury weighs any stance, mitigating "may” individual consider—and the circum- second sen- penalty required. tence of Instruction V—that death is not “You shall not jury penalty Neither sentence instructs the to turn you recommend the death unless be- task, away weight lieve central aggravating of the its outlined in In- circum- stances, I, determining II any, weight if structions and V: the rela- exceeds the of the circumstances, weight aggravating mitigating any.” mitigating tive if J.A. at framework, 1624. circumstances it finds. Within this the third sen- merely tence of V Instruction clarifies that "[ejven though you may aggravating Although clarity, find an not a model we find circumstance, you do reasonably not have to recommend V Instruction could be read as penalty,” death J.A. two-way jury at 1624. That is true command: a command (i.e. because aggrava- if the would finid one of what it render a shall not do death circumstance, ting mitigating but that circumstance was sentence when circumstances out- circumstances, outweighed circumstances), by mitigating weigh aggravating and a si- *59 375-76, 380-84, Under en. See id. at 105 S.Ct. a death sentence. have alloioed scenario, independence 2727. Due to the of the McKoy is violated. either determination, judge’s upheld the Court Similarly unavailing is the Com statute, distinguished the and also Beck. trial that the argument monwealth’s Beck, explained, judge Unlike the Court sentencing process in role judge’s under the new Alabama statute “knows Ky.Rev. instructions. Sec these “cured” appropriate that determination sen- 532.025(1)(b) (establishing § Ann. Stat. jury’s province, tence is not within the to “determine jury shall retire not jury does consider evidence cir any mitigating aggravating or whether mitigation arriving its ‘sentence.’ recommend a ... exist and to cumstances jury’s The ‘sentence’ means that the Upon defendant. for the sentence jury guilty capital found defendant fix a jury, judge shall findings of the crime.” Id. at 105 S.Ct. 2727. This is prescribed within the limits sentence law, starkly Kentucky different than where law”). rejected a sim Supreme initial jury makes the factual determi- v. Ala argument Beck “curing” ilar presence nation on the or absence of miti- 625, 645-46, bama, 100 S.Ct. 447 U.S. factors, gating aggravating factors and (1980), instructing 65 L.Ed.2d 392 “great where its “recommendation” carries presume judge’s that a dis courts not to weight” judge’s on the trial ultimate deci- depart from the death sentence cretion to (“[The I, sion. 607 S.W.2d at 104 jury’s in the will correct mistakes made jury’s] recommendation the death sen- factfinding function. tence, binding on the trial though not down- attempt The Commonwealth’s obviously weight.”). carries judge, great Ala- by pointing to Baldwin v. play Beck distinction, clear the conclusion Given this bama, Beck, Baldwin, reached in and not controls (1985) Contrary L.Ed.2d 300 is meritless. this case. contention, to the Commonwealth’s Mills, short, given McKoy, law hold that state “[a] decision did not miti- the combination of the instructions and judge a trial to consider authorizing jury, form to the Gall presented reduce a death verdict circumstances to gating jury was constitu- there was at least “a reasonable likelihood imposed by sentence challenged jury applied in the [] ... to cure error tionally sufficient way prevented] in a Br. at jury instruction^] Commonwealth instructions.” constitutionally relevant involved a facial chal- consideration 34. Baldioin instead rendering a death sentencing evidence” sentence lenge two-phase Alabama’s statute, Boyde, 494 U.S. at against an Alabama Gall. scheme. Under we must ensure that “sentence” of S.Ct. 1190. Because jury preliminary issued a properly their roles juries carry that a out simply finding based on its death cases, because it is reason penalty of fourteen death guilty one defendant jury ably likely trial that the was confused specified aggravated offenses. The mitigation, necessity unanimity whether court would thereafter determine may “the verdict of death by conducting and because impose a death sentence they understood imposed have been had weighed it considered and hearing where block the death sen juror circum- that one could mitigating aggravating all were if believed there stances, not undertak- tence she jury a task the had of the lan- tion would also make most sense it shall recom- multaneous command guage "you have to" in the third and aggravating do not on the condition that mend death Instruction V. If the sec- outweigh mitigating cir- fourth sentences of circumstances provide V did not Collegiate ond sentence of Instruction See Webster's New cumstances. (1979) required as to what the Dictionary (defining “ex- a command "unless” as do, any no reason to assure the there would be cept under condition that” or "under than”). interpreta- jury what it did not have to do. other circumstance This *60 circumstances,” jurors’ mitigating prosecutors downplayed the role sufficient Kibbe, 154, 1730, Kordenbrock, during Compare at we voir dire. 431 U.S. this error so infected the (informing jury conclude that 919 F.2d at 1101 that it sentencing phase resulting that the death recommendation, would make “a process. due sentence violated all” and that recommendation “would not court”) binding on the with J.A. at Sentencing Jury’s B. Reference To (stating jury’s 1097-98 that the recommen- Decision As “Recommendation” punishment necessarily dation of “is not Court”). argues binding upon next both In closing, Gall judge and the trial violated his prosecutor prosecutors were more circumspect, rights by repeatedly refer constitutional referring jury’s several times to the im- in ring jury’s sentencing role as a pending “recommendation” but not de- “recommendation,” ju which lessened the scribing it as a diminished role. See J.A. responsibility vi sentencing 1630, 1632, 1636, rors’ and thus Similarly, Mississippi, v. olated Caldwell jury trial court’s instructions to Gall’s used (1985). 320, 105 S.Ct. 86 L.Ed.2d 231 largely the word “recommend” without (The judge elaboration. instructed the clearly This issue is controlled Kor- “duty that it was their to determine case, In that petitioner denbrock. made punishment what imposed upon” must be argument today: the same Gall makes Gall.) J.A. 1622-24. With no distin- prosecutor judge improp- both the and the facts, guishing Kordenbrock controls this erly jury’s referred to the task as a “rec- case. prosecutor’s statements there- ommendation” violation Caldwell. fore did not violate Caldwell. 919 F.2d at 1101. plainly See This Court First, rejected argument. explained C. Exclusion of Venireman description jury’s

that the role as a accurately technically recommendation argues Gall dismissing Kentucky law reflected of the time. See (“Correll”) venireman who was uncertain Second, id. the Court concluded that the about his views penalty, on the death prosecutor judge gone had not far so trial court violated Gall’s constitutional jury’s to “improperly role describe[] rights. particular, In argues Gall that be under state law in order to water down cause Correll did not meet the standards their responsibility.” Finally, Id. spelled Witherspoon exclusion out in v. rejected Kordenbrock’s reliance on Illinois, 391 U.S. 88 S.Ct. (the more recent state cases same cases (1968), L.Ed.2d 776 the trial court’s strik here) cited Gall altered the instruc- ing him for cause was a constitutional vio juries; tions to be read it concluded that lation. applicable those cases were not because A trial court’s decision to strike a Kentucky Supreme Court had “de- juror capital based on his or her views clined to apply retroactively the new rule punishment is a factual determination. prosecutor which judge means the and the § Under 28 U.S.C. such a determina did not jury concerning misadvise the tion presumption is entitled to a of correct division of sentencing authority.” Id. ness, to be if it overturned is not not successfully distinguished has fairly supported by the record viewed aas the facts of Kordenbrock from this case. Witt, whole. Wainwright See v. Kordenbrock, He argues jurors that in 412, 426-31, 83 L.Ed.2d 841 were judge give informed that the (1985); McQueen Scroggy, 99 F.3d great weight recommendation, to their (6th Cir.1996). 1326-27 they while were not so advised the Gall actuality, trial. the references made We find that the trial court committed the two cases are almost identical. Both reversible error in excluding Correll. Its *61 507; record, just am at “it undecided.” J.A. is supported by not is decision just things you one of those would have to In a series precedent. clear and violated you got cross when to it.” J.A. at 506-07. Witherspoon, with beginning cases Moreover, occasions, on several he in- consistently held that has Supreme Court the judge formed counsel and that he impartial right to Amendment the Sixth “very possibly possiblfy]” would or feel the when, proce- through the jury infringed is penalty appropriate death in certain a jury particular obtain a for dures used to factual at 507. scenarios. J.A. He also trial, judge allows the selection the trial that he believed could judge told “uncommonly willing to condemn a and would follow the law as instructed. 521, at 88 S.Ct. man die.” 391 U.S. at 508. These statements showed J.A. Witt, clarified that 1770. In the Court irrevocably opposed that he was not “so cause when juror properly excluded for as to capital punishment frustrate the or sub- juror’s ‘prevent views would “the its” legitimate State’s efforts to administer his impair performance stantially scheme, penalty death the standard that juror in accordance with duties as a ” Adams, Witt requires for exclusion. 448 at oath.’ 469 U.S. and his instructions 51, at 100 S.Ct. 2521. Cornell's state- U.S. (quoting Adams v. Tex- 424, 105 S.Ct. 844 likely ments his decision de- as, 2521, 38, 44, 65 100 S.Ct. 448 U.S. pend on the facts he was faced with also (1980)). The Witt Court not- L.Ed.2d 581 suggested comport that his selection would require not that this standard does ed “quest” jurors a trial to find with court’s juror’s proved bias be with “unmistak- “conscientiously apply the law and who id., generally, noted that clarity,” able Witt, 423, at find the facts.” 469 U.S. paid judge. to the trial ought deference Similarly, uncertainty S.Ct. 844. Correll’s 426, 105 See id. at 844. S.Ct. option as to how the death sentence Notwithstanding the defer decision should not have would affect his judge,32 trial we find that Adams, ence owed to the led to his the Court exclusion. fairly support the factual record does on a reversed a conviction scheme standards of exclusion under the Correll’s jurors “whose precluded prospective with Adams Witt. Correll’s discomfort responsibilities to take their fault was “ appear ‘pre did not penalty the death acknowledge or to hon- special seriousness substantially impair perfor or estly they might might vent not be juror 50-51, his duties as a accor mance of at 100 S.Ct. affected.” 448 U.S. ” juror Finally, with his instructions and his oath.’ unlike the who was dance 2521. Adams, 424, Id. at in Witt because she re- (quoting 105 S.Ct. 844 properly struck 2521). that her beliefs would at 100 S.Ct. Correll “affirmed peatedly juror,” sitting mind was as a rejected proposition that his interfere with her not once penalty— the death at Correll imposing “closed” to U.S. him closed, would deter “No, it—I stated that his beliefs say I would it isn’t but ion, adequate written clear or other reliable argues that because there is no applying showing S.Ct. 844. that the trial court was 469 U.S. at indicia.” standards, There, Witherspoon and because the trial stated: the Witt Court findings regarding made no written transcript reprinted of the voir dire merely "sustained” in re- Correll—and said ques- juror Colby was above shows that prosecution's for cause— sponse to the strike presence of both counsel and tioned in the ap- standard should not be the deferential colloquy end of the judge; presumption of plied. We conclude that the cause; challenged and the prosecution applies trial in this case. The correctness judge challenge when the was sustained nothing judge did less here than the Nothing Colby “step juror down.” asked Witt, rejected required which a defen- also circumstances required under the more was argument judge’s conclu- dant's trial satisfy statute. [habeas] since it was not sion merited no deference finding, opin- Id. 105 S.Ct. 844. written "evidenced a written status, parole juror. indirectly referred to Gall’s impartial as an Cor- serving thus error. that it was not “extraneous” informa- so rell’s exclusion tion. next avers that The Commonwealth A violation under Witt is re the evidence is not admissible under Fed. subject to harmless er error not versible 606(b), magistrate pointing R.Evid. See, e.g., Gray Mississip analysis. ror conclusion to that effect and to court’s 648, 668, pi *62 States, 107, Tanner v. 483 107 United U.S. (1987); Georgia, Davis v. 429 L.Ed.2d 622 (1987), L.Ed.2d 90 which 97 122, 123, 97 S.Ct. 50 L.Ed.2d 339 606(b). Third, FRE the Com- discussed (1976) improper that the exclusion (holding made argues monwealth that Gall has not out of 83 was revers of one veniremember argument valid under review be- habeas error). Kentucky Supreme Court ible The pro- cause there is no constitutional rule incorrect when reasoned was thus juries hibiting considering possi- error, if Correll’s exclusion was even bility parole part weighing of their Gall, 607 at harmless error. See S.W.2d See, v. penalty. e.g., the death California However, this error “does not invali 104. Ramos, 103 S.Ct. 77 only that guilty date the verdict. It holds (1983). Further, claim L.Ed.2d imposed by improp an the death sentence jury’s parole that the consideration of vio- erly jury selected cannot be executed.” Kentucky cognizable lated law is not Cardwell, F.2d Woodards habeas review. (6th Cir.1970). Prejudicial D. Extraneous Information argues post-conviction that the tes- Gall certainly is correct when he Gall (“Palmer”) timony juror of another dem- post-conviction hearings are argues death sentence was onstrates that Gall’s permissible investigate means to and rem In a post-conviction unconstitutional. edy juror actual bias. v. Phil See Smith questionnaire again at a deposition 209, 215, 940, 71 lips, 455 U.S. part petition, of Gall’s habeas conducted as (1982) (holding that the L.Ed.2d that he Palmer indicated was aware of long remedy allega “has held that the for parole Gall’s status when he committed juror partiality hearing tions of is a (Gall alleges the crime. that Barton in- to opportunity which the defendant has the Palmer, jurors, including formed other bias”); actual prove United States v. fact). Palmer also indicated that the (6th Herndon, Cir.1998) 156 F.3d question fact parole that he com- —the claim (holding colorable “[w]here while on parole, mitted the crime and the raised,” a extraneous influence has been potential from a parole life sentence— hearing necessary provide oppor to an played important jury’s role in the deci- bias). tunity critical to show actual The Indeed, sion to render a death sentence. determining can task is what evidence be jury explicitly judge asked the during in assessing jury considered a claim of paroled deliberations if Gall could be if so, partiality. doing we find most of given judge respond- life sentence. inadmissible; Palmer’s statements you ed: cannot “the Court advise as to nevertheless, we find some of his most parole pardon.” either J.A. 1638-39. crucial statements admissible. argues jury’s that the consideration of parole Kentucky status violated both Federal Rule of Evidence es

law rights. pertaining and Gall’s constitutional tablishes what evidence may deliberations consider. The Commonwealth offers several coun- First, ter-arguments. juror testify any as to may Commonwealth [A] penalty occurring during contends that statements in the matter or statement phase of parents jury’s the trial both of the course of the deliberations or anything that or upon juror’s effect of on the processes mental or the juror’s mind or

any jury’s other emotions as deliberations.” Bibbins v. Dal sheim, influencing juror 13, 17 (2d Cir.1994). to or assent 21 F.3d dissent from the verdict or indictment or Using these looking standards in juror’s concerning processes mental deposition Palmer’s questionnaire, in connection therewith.... we conclude that very few of his state juror may testify question on the [A] First, ments are admissible. all almost prejudicial whether extraneous informa- questions and answers on question improperly brought tion was naire involved inadmissible “internal con jury’s any attention or whether outside siderations” they because involved the “ef improperly influence was brought fect” of the knowledge parole on the upon any juror. bear jury’s instance, deliberations. For *63 606(b). Fed.R.Evid. Tanner further clari- questionnaire asked of parole role “[t]he fied the distinction between “internal” and played your deliberation?” Palmer an “external” Examples imper- matters. swered: big part.” “[A] J.A. at 1168. The missible “internal influences ‘include the questionnaire then asked: important How jurors deliberations, during behavior the was the fact that parole? Gall was on The jurors’ ability comprehend to hear or trial “Very important.” answer The form then testimony, ‘physical and incom- mental questioned the publicity played role in de “ juror’ petence generally, of a ‘in- ”— liberations, possible alternative sen ” Herndon, processes jury.’ ternal tences under hypotheticals, different and Tanner, 156 F.3d at (quoting 634-35 483 asked “what convinced of’ [Palmer] differ 2739). at U.S. Misap- ent conclusions. J.A. at 1168-69. prehension of instructions is also internal short, questions most involved paradigmat Gall, in nature. See Warden v. 865 F.2d ic internal considerations —the of pa effect (6th Cir.1989). 788 n. 2 Examples of role and other upon factors Palmer’s or juror outside influences include a in a any juror’s other “mind or emotions as criminal trial previously who had applied influencing juror to assent to or dis job office; for a in the district attorney’s sent from the verdict.” Fed.R.Evid. attempt juror; bribe on a entry and the of 606(b). Nevertheless, since parole Gall’s newspaper articles and media attention trial, status was never addressed at see Herndon, into deliberations. See 156 F.3d infra, question the one that is admissible at 635. This sharpened Court further purely as a you external matter is—“Did definition of external influence: juror parole?” as know An distill principle [W]e that an extra- swer: “Yes.” at Similarly, J.A. 1168. near juror neous influence on a is one derived ly all of deposition comprised Palmer’s in specific knowledge about or a rela- admissible jury’s statements of his and the tionship with parties either the or their internal considerations at questions trial — witnesses. This knowledge or relation- concerning the effect possibility pa ship is such that it taints the delibera- role had on the jury’s deliberations. J.A. tions with subject information not to a at only testimony 1151-62. The that in procedural safeguards. trial’s These exclusively volved external influences was influences, moreover, types of may well acknowledgment, Palmer’s having after deny litigants their constitutional looked at his completed questionnaire, right to have the case heard a fair he had parole known that Gall was on impartial jury. when he committed his crime. at J.A. Finally, Id. at 636. juror even when a juror 1155. He also stated that another evidence, testifies as to fact, external that testi- had made him aware of a state mony parsed must be of all references ment that was also admissible. J.A. at regarding “the effect of that information 1166. (6th Cir.1994) Patton, (citing 2885). 1036, 104 S.Ct. arguments regarding

Gall’s cognizable on are not law violations state Amendment A Sixth defendant’s Nevertheless, Gall does review.33 habeas ap jeopardy when facts rights put are claim, re colorable constitutional state a developed not that were pear before § he asserts when under viewable may influence at trial. Such extraneous improper juror’s consideration impartial of an guarantee threaten the violated Sixth influences extraneous Goins, Herndon, 636; 156 F.3d at jury, see jury, impartial right to Amendment an trammel a defen may 605 F.2d confrontation .right of well as his and cross- right to confrontation dant’s time, Kentucky At the cross-examination. Gladden, Parker v. See examination. parole as jurors to consider permit did 363, 364-66, L.Ed.2d decision; nor sentencing aspect of their curiam) (1966) (per (holding state parole to discuss allowed were counsel jurors violated ments a court bailiff jury. Yet Bar arguments before their rights). Amendment and Fourteenth Sixth dire that he had at voir ton conceded has also found a due Supreme status, parole about Gall’s previously read violation when a “death sentence process that he knew Palmer conceded part, on the basis imposed, at least deliberations, hav during the parole had no [a defendant] of information which *64 juror. from another that fact ing heard deny explain.” or Gardner opportunity involv cast as one This case is thus better 1197, Florida, 349, 362, 97 S.Ct. v. 430 U.S. extrane improper introduction ing the (1977); Sheppard, see also 51 L.Ed.2d 393 may into the trial that information ous 351, (counting at S.Ct. 1507 384 U.S. 86 case. prejudiced have Gall’s legal procedures “the re among essential jury’s quirement that the verdict be based petition, habeas when In a court, in open received on evidence con a trial error violated his claiming that Irvin, sources”); 366 at from outside U.S. a defendant must show rights, stitutional 722, juror’s (stating 1639 that a 81 S.Ct. injuri that “had substantial and the error upon the evidence verdict “must be based determining ous effect or influence trial”). at developed Abrahamson, jury’s Brecht v. verdict.” 619, 1710, parole status was 123 L.Ed.2d We find Gall’s 507 113 S.Ct. U.S. (1993) (internal information. De- quotations improper and citation “extraneous” 353 omitted); argument to the Killinger, spite v. 169 F.3d the Commonwealth’s Nevers Cir.1999). (6th record 352, judge’s contrary, A trial there is no mention parole on when he juror of a or that Gall had been finding impartiality on the mother The fact that his jury finding, presumed a factual correct killed Jansen. previously proves § mentioned that he had been under 2254 review unless Gall indicate that he was convincing “released” did not otherwise evidence. See Kassulke, lawyers, 1392, parole. on Nor did the Turpin v. 26 F.3d 1401 released eligible parole .again, who is for 33. Once habeas court can re- to view a defendant a. allege society view a violation of federal greater claims than a defendant as a threat to 221, Ramos, Phillips, 455 U.S. at 102 S.Ct. not”); law. See v. 463 U.S. who is California Thus, argument Kentucky 940. Gall's (1983) 77 L.Ed.2d prohibits jury considering parole law from judicial regarding a (upholding a instruction cognizable review. is not habeas sentence); power governor's to commute a life correctly points Commonwealth also out that 1, 12, Oklahoma, see also Romano v. considering potential parole for or de- (1994) (stating 129 L.Ed.2d 1 114 S.Ct. society” fendant's "return to does not violate "Eighth does not estab- that the Amendment See, e.g., constitutional norms. Simmons supersede lish a federal code of evidence Carolina, 154, 163, South 114 S.Ct. Thus, rules”). evidentiary neither state (1994)(concluding 129 L.Ed.2d 133 arguments merits habeas review. these alone sentencing jury entirely "it is reasonable for pose reveal that judge any or other witnesses death based on aggravating fac- Beck, parole was on at the time he committed tors it fit. generally saw See Here, the offense. With no sources from within U.S. at 100 S.Ct. 2382. when status, indicating parole the trial Palm- prospect faced with the clear jury that the knowledge parole er’s of Gall’s status was was considering an aggravating factor be- him- clearly yond extraneous information —as he presented trial, what had been oath. self stated under lawyers which the had been forbidden discussing, trial “the court failed to rules, Kentucky Due to counsel never take all appropriate steps to assure the crucial “explain” had a chance fact integrity Goins, dignity of the trial.” jury. Although that came before the we 605 F.2d at 953. permitted are not to note Palmer’s testi- mony considered that fact short, we believe that “very important,” we do find that a reason- jury’s extraneous knowledge pa of Gall’s juror likely able would have considered the role status at the time of killing, parole extraneous information of sta- Gall’s the trial court’s respond failure to appro Bibbins, in setting tus his sentence. See priately question to its regarding parole, (noting 21 F.3d that when an extra- injurious inflicted “substantial effect shown, neous influence is a court must use or influence determining jury’s ver objective test to assess the likelihood Brecht, dict.” 507 U.S. at typical the influence would affect the Thus, juror). process due was violated because Gall’s “death sentence was im- V. posed, part, at least on the basis of Due to the constitutional vio information that he no opportunity had above, lations stated this Court is com Gardner, deny explain.” 430 U.S. at pelled grant petition habeas *65 1197; Herndon, 97 S.Ct. see 156 F.3d relief. This Court has broad discretion in (noting at 636 that extraneous information fashioning such relief. See Hilton v. jury’s] “taints deliberations with infor- [a Braunskill, 770, 775, 481 U.S. subject mation not to a procedural trial’s (1987). 2113, 95 L.Ed.2d 724 The law safeguards”). requires dispose that we of habeas corpus

Moreover, justice the trial court’s re law require.” matters “as sponse prospect jury § to the that the predecessor was U.S.C. 2243. The to that “tainted” unacceptably was weak. He statute vested a federal court “with the merely jury advised largest power “it would be to control and direct error this you for Court to instruct form of to judgment be entered in cases upon subject parole.” comment of brought up J.A. before it on habeas corpus.” Hilton, at agree 1638. We with Gall that when 481 U.S. at 107 S.Ct. 2113 (internal question, faced with this the judge quotation had a marks and citation omitted). duty jury forcefully discretion, to admonish the more Despite this double it parole jeopardy prevents could not consider in its ordering us from a re sentence determination —which prosecution would have trial of this case—the already Kentucky reflected law at the time. See attempt had one to make its case for mur Commonwealth, and, above, Brown v. 445 S.W.2d explained prove der as failed to (Ky.1969). particularly impor This is an essential element. See Burks v. United cases, States, 16-18, in tant the context of death penalty Love, Supreme (1978); where the has at clearly Stacy L.Ed.2d 1 679 F.2d (1982).34 tempted to rein in discretion im- 1212-14 to Without ele- here, 34. If dy apply certainly we believed that there was even a mini- not did we would mally plausible argument jeopar- provide opportunity that double the Commonwealth an to showing of overwhelming have With conviction proved, Gall’s ment high and his mental illness severe Ky. Gall’s pursuant manslaughter for been we dangerousness, for future 507.030(l)(b), potential which car- §Ann. Rev.Stat. peti- of habeas grant Gall’s twenty condition jail of term a maximum ried him an involun- granting tion on the state’s already time he has length years—a just as he proceeding, tary hospitalization served. if had been provided he would have been trial rec- Nonetheless, looking Ann. Ky.Rev.Stat. under found insane overwhelming and ord, that the we think proceeding § such (requiring 504.030 Chutkow evidence Drs. undisputed by reason of acquitted are defendants who at the was not sane that Gall Toppen proceeding it to insanity). We leave question. the acts he committed time guidelines meets the determine if Gall clearly showed Moreover, the evidence 202A, pro- Ann. eh. which Ky.Rev.Stat. perma- condition is psychotic that Gall’s hospitalization confinement and vides for extremely dan- nent, he would and that until persons mentally dangerous ill if into citizens released his fellow gerous they longer present no when a time Noelker testified society. Dr. free or others. As this danger themselves the starkest dangerousness circumstances, stated similar Court once condition was that Gall’s He stated terms. that the only hope can Commonwealth we curable, that we could best “[t]he not overwhelming will note the evidence to control his condi- would be hope to do mentally highly ill and severely this man is institu- of an at 970. Outside tion.” J.A. indefinitely him and commit dangerous possible; “we tion, this is explained, Love, F.2d at Stacy v. that basis. See knowing how or means of no would have pres- or what his medication when he took psychoti- him to become sures would cause VI. In an uncontrolled Id. cally obsessional.” fact little that the There can be doubt therefore, “probable setting, crime drove a heinous in a manner” that Gall committed again act similar [Gall]would a conviction prosecution to secure in this case. act grisly committed rights. expense Gall’s constitutional “strong It was therefore J.A. at 962. remember, so Cranch Judge al- We must that Gall “never be recommendation” ago, two eloquently stated almost centuries a free member of lowed to become *66 times for In that the “constitution made at 970. society again.” J.A. Bollman, United would al- of commotion.” States diagnosis repeated his (C.D.C.1807)(Cranch, 1189, 1192 24 F.Cas. a disease or de- ways from mental suffer times, J., trial, “[w]e In these Toppen dissenting). At Dr. at 1093. fect. J.A. lest our zeal conclusion, upon guard be our explaining ought to reached the same overstep public interest lead highly in a for us for Gall to the need remain constitution; environment, law and a the bounds of the that be whether structured may thereby bring one although we J.A. at 1215. for mental or institution. penal may we furnish punishment, criminal to by A examination doctor con- another an innocent by the means which hundred dangerous. permanently that Gall is firmed Unfortunately, Id. persons may suffer.” (concluding Gall’s violent at 629 J.A. of this trial circumstances result of a the cumbersome “appear to be the propensities securing in unleashes, zeal and the Commonwealth’s without dysfunction which brain controls, sentence murder conviction death ag- violent and apparent internal behavior”). Consti- overwhelmed strictures gressive case, apply in this jeopardy instance. suggests. But ble does make as the dissent beyond doubt that dou- it clear Buries makes The By failing tution. to bind the Common- state trial court is then ordered to requirements, involuntary constitutional and hold an hospitalization pro- wealth to by allowing ceeding Ky.Rev.Stat. § constitutional error to infect under Ann. 504.030 (Banks-Baldwin 1995).2 outcome, in ways the trial that altered its in appellate the trial and courts failed their Although the court makes reference to justice duty according ] to “administer [ the fact that very dangerous, defendant is the laws and constitution the United incurable, and needs to be for confined trial, Specifically, Id. con- States.” life, rest of his that is no means the appeal viction and contravened the funda- compelled Kentucky result of the civil in- mental elements discussed above. We are voluntary hospitalization proceedings that compelled therefore to REVERSE the will 22 years be conducted after the crime district court’s denial of habeas relief and was committed. One can imagine the first proceedings REMAND for consistent thing the defendant will offer his de- opinion. this hospitalization fense to is that sane, found him to be the state contended GUY, JR., Judge, RALPH B. Circuit sane, he, himself, he was never concurring part dissenting part. claimed to be insane. The defendant went case, penalty this death habeas so far as to act as his own counsel for jury’s court that the concludes verdict of much of the trial because agree he did not guilty should be overturned and the state lawyer’s urging with his insanity of an trial court be ordered to enter verdict of you defense. can person Unless commit a guilty by not The insanity. reason involuntarily in Kentucky being “crazy styles granting this relief as the of a fox,” guarantee like there is no that Gall corpus. conditional writ of habeas away will not walk a free man as a result “condition,” however, not the usual one of this decision. retry that the state either or release the Although I my have started dissent Rather, prisoner. the court first rules that drawing attention to the possible dire con- jeopardy preclude double would the retrial decision, sequences of the court’s this is defendant, issue that was not Sometimes, my not the basis of dissent. appeal raised this and an issue on which Judge goes great lengths Jones the state has had an opportunity never out, just point judges chips have to let the holding be heard. The result of this may. they push- fall where At the risk of person undoubtedly be to release a who is far, ing metaphor “chips” too in guilty charged the heinous offense case from a tree that are does need to

whom the court itself characterizes as like- chopped down. ly to commit a similar offense. In order to avoid this result the court next takes the I. unprecedented step usurping the role of *67 jury, rejected the trial which insanity analyzing the After defendant’s claims of er- defense, and finds the defendant insane.1 ror to they guilt phase as relate the of the Although Kentucky provides jury proceeding 1. now that a ization under KRS ill, Chapter may 202A or 202B. guilty mentally find a defendant but (2)To procedure facilitate the established in option juries this verdict was not an for when (1) section, subsection of this the Gall was tried. may court order the detention the of (10) period defendant for a days of ten 2. This section reads: proceedings to allow for to be Disposition person 504.030 found not against initiated the defendant ex- guilty by insanity reason of possible pur- amination and detention (l)When guilty by a defendant is found not provisions Chap- suant the KRS insanity, reason of the court shall ter 202A or 202B. involuntary hospital- Ky.Rev.Stat. § conduct an 504.030. Ann. 507.020(l)(a). § Noth- Ann. majority Ky.Rev.Stat. rejects the trial, negating suggests in the statute ing was not that Gall them, including the claim is an element emotional distress extreme all agree I with stand trial. competent murder, that mental crime of or of the opinion of the court’s sections of those illness, insanity, a defense. legal short of is which I findings with will address the statute is reading court’s That the take issue.3 clearly by the is demonstrated erroneous in key holding Kentucky Supreme Court’s I believe be begin I with what Commonwealth, 694 S.W.2d Wellman v. one opinion and the holding in the courts (Ky.1985). 697-98 clearly erroneous. I is most which believe gov- that it was the concludes The court that mental illness The contention are one the ab- emotional disturbance responsibility prove extreme ernment’s Prior to is without merit. and the same as an emotional distress extreme sence of (murder) adoption of KRS 507.020 charged.4 The the offense element of (voluntary manslaugh- 507.030 KRS by its error conclud- compounds court then ter), differentiating standard be- “ex- equates illness that mental ing law, two, under the common tween the purposes disturbance” for treme emotional The passion.” heat and was “sudden ap- Kentucky murder statute. in change the statute does principal perti- in Kentucky statute reads plicable in in the definitions lie the difference part: nent passion” and “sudden heat and between disturbance,” if emotional “extreme Murder 507.020 in fact that the there is such. It lies (1) of murder when: guilty A is person in adequate provocation requires former eyes man under the reasonable (a) cause the death of intent to With circumstances, requires while latter he causes the death person, another in jury themselves place “to person; or of a third person of such he believed it to be at position actors’ as any prosecution except that Gall, p. supra, of the act.” the time guilty shall not be under person Thus, proper application, if acted under subsection illness, thereof, like in- of mental point of extreme emotional the influence in the drugs, on alcohol or is toxication which there was a disturbance for considering of the effect thereof test excuse, or explanation reasonable events, acts or words as such factors as reasonableness of which is particular relate to the defendant they of a viewpoint determined from the he was under ex- who contends that situation person the defendant’s the time treme emotional disturbance at as the under the circumstances de- of his act. How-

fendant believed them to be. short, may illness be con- mental ever, nothing contained in this sec- in the reaction sidered to a tion shall constitute defense pro- when there particular defendant prosecution preclude for or a con- bative, independent evi- tangible and circumstances, first manslaughter viction of such initiating dence of his act provocation at the time degree any other crime[.] *68 conviction, lynchpin of the overturning is also the the 4. This conclusion 3. In defendant's Thus, penalty phase the the trial analysis. the court malees moot. Since the court has addressed this issue, if jeopardy this court's double jeopardy wrong, double conclusion is the however, my I would indicate concur- analysis wrong, retrial would not is also penalty the rence in the result reached on be barred. analysis subscribing all of the issue without used to by the court to reach its result. ivhich is to contended arouse Ky., extreme (1978), 567 S.W.2d 307 factually is emotional disturbance. It is not such a distinguishable in this particular respect. standing disturbance when alone. Commonwealth, Gall v. 607 S.W.2d added). (emphasis Id. (Ky.1980). way, another relating Stated The United Supreme States a case, to above the facts of this the “de- case involving this Kentucky same statute fense” or mitigation exception provided for stated: Kentucky murder statute comes into trial, At petitioner attempted to estab- only play upon showing “provocation,” lish the of “extreme significant with the factor being that the affirmative defense emotional He disturbance.”8 called jury must provocation through evaluate his worker, sole witness a eyes social of the defendant. If the defen- Martha Elam, dant has a mental illness such who formerly that he will had been assigned “provocation” see where normal person case. At the request petition- not, might the jury has to consider this counsel, er’s she read deficiency on the part of the defendant.5 several reports and dealing letters with cry This is a far from the holding court’s petitioner’s evaluations of mental condi- here that extreme emotional is disturbance cross-examination, tion. On prose- at all times element of the offense of cutor had Elam read another progress murder that has to negated be even when report petitioner made while was institu- there is no claim “provocation” or other prosecutor tionalized. The then sought circumstances,” “initiating much evi- less to have Elam read from a report of a dence of it. point On this latter Ken- psychological by evaluation made Doctor tucky Supreme Court Gall’s appeal spe- Lange Robert J.G. petitioner while cifically held: jurisdiction within juvenile While it is true “extreme court after his arrest for Poore’s mur- emotional phase disturbance” der. Counsel petitioner for and the murder did not instruction include prosecutor jointly juve- had moved the additional statutory language, “the rea- nile court to order this evaluation under sonableness of which is to be determined Ky.Rev.Stat. §§ 202A.010-202A.990 standpoint from the person of a in the (1977), which, time, at the governed in- defendant’s circumstances as the defen- voluntary hospitalization psychiatric be,” dant believed them to we are of the treatment. opinion the omission was proper. Obviously particular language ap- offense, 8Atthe time of the the settled law only propriate when there is evidence Kentucky was that defense was this avail suggesting that the emotional distur- able where the defendant established bance precipitated by some event or two elements: that the defendant had been circumstance the defendant believed to provoked, and that the defendant had acted exist. this case there was no evi- subjectively in a way given reasonable provocation. Commonwealth, See Gall v. suggest dence to appellant’s (Ky.1980); S.W.2d 108-109 Wellman

motivation any involved “belief’ on his Commonwealth, v. 694 S.W.2d 697-698 part regard to the circumstances (Ky.1985). The defendant has the burden of alleged induced the emotional dis- defense, Gall, production supra, on this see Commonwealth, turbance. simply which cannot be established Ratliff By "provocation” I imply another, term, do not mean spouse found in bed with context, victim has have something done in this include such claims provoke Although might defendant. such defendant as "God told me to shoot this the case shooting as in person.” the classic aof *69 Wellman, illness, su- see showing of mental her, jury the should against and spiring pra, upon delusion based have evaluated this Thus, schizophrenia. paranoid 408- defendant’s Kentucky, 483 U.S. v. Buchanan (1987) necessary the clearly, court found L.Ed.2d 336 (some the defendant’s added) provocation to be predicate omit- footnotes (emphasis plotting victim was ted). delusion predicate provoca- against her. Once relative reaching In its conclusion then, then, found, and tion is statute, mis- the court Kentucky murder negating prosecution has the burden Commmonwealth, 567 v. reads Ratliff miti- as a emotional disturbance extreme and Edmonds (Ky.1978), S.W.2d point, Illustrating factor. gating Commonwealth, (Ky.1979). 586 S.W.2d stated: court Ratliff there believed The defendant Ratliff us, before presently In the case her, and that the conspiracy against was a satisfy prosecution carried the burden and killed was clerk she shot retail store of extreme emo- jury of the absence conspiracy. part statutorily defined. disturbance as tional was the store clerk Appellant believed carried the burden to The defendant her. testified: conspirator against She a jury legally was convince the she up and told “... went Charlie Gilbert the commission of insane at the time of store, shot; I at the the one that woman jury 504.020. If the the offense. KRS told her not to sell up he went there and a doubt the defen- had reasonable ” “They nothing out of the store.... me not to have acted proved dant had been me, me yes, got and smart with watched under the influence of extreme emotion- they like wanted to both- they acted a al which there was disturbance for an- girl and there’s er me the Mullens justification or excuse under reasonable in from across the girl other come as she believed them circumstances street, girl, a headed little black be, punishment they could other- and I they got together there both assess for murder could have been wise jump me.” thought they going was degree of first mitigated by finding detective Bel- Appellant police told state course, if the defense manslaughter. Of (the victim) lamy, lady “That looked legal insanity had been believed pull my hair.” going me as if she was would have the result been on medication and Appellant had been complete exculpation mitigation and not Comprehen- visiting had the local been punishment. prior for some time sive Care Center added). (emphasis Id. at 309-10 mental shooting for treatment of her circumstances, three Even under these condition. Kentucky justices dissented. of the seven Ratliff, 567 S.W.2d at 309. illuminating: language the dissent that Clarsie [the There is no doubt psychiatric there was also evi- Ratliff suffering from a mental paranoid defendant] was dence that the defendant was by psychi- was classified schizophrenic, insanity a defense of disease. She paranoid. A schizophrenic in- atrist as a Although the court asserted. defense, might that she testified insanity psychiatrist structed on it did not again commit a similar offense give first-degree manslaughter instruc- existed again. If an iota of evidence contemplated by tion the statute when the acting under extreme of ex- that Clarsie justify mitigation as result facts join I would disturbance treme The conclu- emotional emotional disturbance. that she was entitled majority saying in- sion of the court was that the Ratliff first-degree man- to an instruction on given struction should have been because I believe it is the slaughter. do not thought the defendant the victim was con- *70 any appellate 12-year-old court to tion that the girl, function of this or who Gall raped shot, a crusade to find errors embark on and then somehow in Gall’s eyes where none exist. had something provide done “a explanation reasonable excuse” stating At the risk of the Id. at 310. actions. The most Gall offers is that he obvious, disagreement between killing. doesn’t remember the might This involve majority and dissent did not defense, insanity be relevant to his but is disturbance whether extreme emotional not a holding basis for that the “extreme murder, crime of was an element emotional provision disturbance” but, rather, notwithstanding that defen- murder statute play. was called into ill- dant suffered from a serious mental i.e., ness, predicate, was there a factual Kentucky One additional worthy case is provocation, require sufficient to even of mention although it must be read ,jury killing through eyes at the look against backdrop of the other Ken- of the defendant. tucky cases which make it clear that the defendant, in Similarly, Edmonds the extreme emotional disturbance in language condition,” “psychoneurotic who had a was the murder statute is term art and is infatuated with the woman he murdered. not to apply person, whenever a intended, describing In the circumstances immedi- abstract, in may be emotionally dis- surrounding murder the court ately turbed as that term commonly under- appellant stated: “The was [defendant] Messer, Coffey stood. In v. 945 S.W.2d jealous Betty and on this [the victim] (Ky.1997), the court added further laboring fateful afternoon under the was clarification to this discussion: going out with impression she was Although occasionally we have de Edmonds, another man.” 586 S.W.2d at EED a mitigating scribed as circum stance, Commonwealth, e.g., Gall v. Ky., Ratliff, in in As the issue Edmonds was (1980), 607 S.W.2d overruled on the trial failure to a first- give court’s grounds, Payne other v. Common degree finding In er- murder instruction. wealth, (1981), Ky., 623 S.W.2d 867 cert. so, in ror the failure to do Edmonds is denied, totally The predi- consistent with Ratliff. (1981), is, fact, ] L.Ed.2d [ cate, the delusion that the victim was see- presence defense extent its man, and, ing present another when precludes a conviction of murder. KRS coupled with the defendant’s mental condi- 507.020(l)(a). have character We often tion, require would to look at the defense, EED and it is re ized through eyes murder of the defen- ferred to as a “defense to the crime” dant.6 circumstances section of mitigating Gall, In our Kentucky Supreme capital penalty statute. KRS 532.025(2)(b)2. did not there evidence is intro find Once insufficient EED, any predicate prove presence evidence of which would duced to its trigger the extreme disturbance absence becomes an element emotional of defense, but there was “no evidence.” murder. Gall Common fense of wealth, view, my finding supra, this is a factual which at 109. As with other great penal defenses, must be accorded deference. It also code the Commonwealth beyond peradventure proof is clear it is burden on the then assumes the required produce sugges- correct. There was never even issue but is Gall, to the extreme 6. Even if one were to assume that both as it related decision Ratliff defense, presented and Edmonds somehow a different emotional disturbance resulted in an Kentucky view of the statute than the murder post ex since both cases were violation facto Gall, expressed they provide view no decided after the date of Gall’s offense. support majority’s for the conclusion that the in the expression and the development Mat its absence. direct evidence of *71 may it Commonwealth, that Commentary to the effect Ky., 709 v. thews words,” denied, event, (1985), “any or even by cert. aroused S.W.2d however, Assuming, L.Ed.2d as above. quoted disorder, the (1986). EED entitles or not of whether Evidence that a mental [ ] may on the lesser insanity, instruction consti- legal to an to defendant amounts man first-degree “explanation offense ex- included a reasonable tute 507.030(1)(b). Al distur- KRS emotional slaughter. extreme cuse” for is not included offense bance, a lesser the though upon incumbent trial it was meaning the technical within negating defense the that require to court code, it penal murder, in the as used those terms on instruction in its factor a defense is, principle, in fact and which ivas done. v. charge. Gall Com higher the against added). Gall, (emphasis at 109 607 S.W.2d 108; monwealth, Brown supra, Kentucky holding the This was Commonwealth, Ky., 555 S.W.2d Here, majority, quotes the which court. 257(1977). Kentucky opinion, the portion this omitted) (footnote (emphasis Id. at 945-46 concerning the language out the leaves added). development this section historical another reason. significant for Coffey is rely upon lan- quote goes then on to in- when a defendant makes clear that It clearly dicta opinion is guage in the acting was under that he troduces evidence controlling this case. Nonethe- and not disturbance, not a it is extreme emotional less, clearly found that Kentucky court the acquittal, result in an which could defense negat- makes of the statute the view which defen- that allows only a the but defense an emotional ele- ing extreme disturbance on the jury instructed to have dant the murder was the one the crime of ment of first-degree offense of included lesser and that this was by judge, the trial taken en- though he wasn’t manslaughter. Even the by the trial demonstrated instruction it, the benefit of Gall received titled to that effect. judge to gave short, trial In the an instruction. such assuming arguendo way, another Stated if it were a actually proceeded as court in Gall’s Kentucky Supreme Court that the was entitled to in which the defendant case interpretation an appeal place direct did the lesser included of- instruction on the differed from statute that the murder fense. given interpretation previously it was failed to prosecution found the Having no it makes differ- progeny, and its Ratliff offense, major- an element of prove in a proceeded the trial ence because finding con- ity next addresses sayI “as- manner consistent with Ratliff. Kentucky Supreme Court trary by the ” must not one arguendo because suming (section opinion). B 2 c of the court’s III the Kentucky the fact sight lose Kentucky The court concludes court in Gall concluded Ratliff pro- decision violated due Supreme Court’s and, I have “factually distinguishable” by shifting “the burden defendants cess earlier, indeed the pointed out such distur- of emotional produce evidence case. things wrong There several bance.” are First, what the Ken- upon conclusion. misin- being based addition actually was: tucky Supreme Kentucky said murder stat- terpretation of interpreting as the law prop- ute as well case is to be said There much statute, will majority’s conclusion in- disturbance emotional osition analysis. For logical up kind not under in a illness is not stand hering mental charged if with mur- example, person contemplat- of an emotional disturbance Kentucky statute all statute, der in view of its historical under ed a claim by way that is offered of defense is der that would arouse extreme emotional that he was in another disturbance and allow the defendant to consider murder, at the time of the there state whether the defendant acted under such prosecution disturbance, be no need for the which would then allow the any offer evidence of the defendant’s men- first-degree crime to be viewed as man- Yet, if, claims, majority tal as the state. slaughter. of extreme emotional distur-

the absence erroneously After concluding that an element of the crime of murder bance is *72 prosecution prove failed to an element of proven it would have to in all cases. To murder, the crime of the court goes then merely proposition is to show its state this on to further find Gall was insane when absurdity. Kentucky When all of the 22 years crime was committed ago. dealing Kentucky with the murder cases finding This is any made without discus- read, precede statute are both those that of what sion must be shown under Ken- follow, crime and those that it is tucky law to establish the defense. emotional clear when “extreme distur- Kentucky, offering a defendant an insanity in the bance” is referenced same breath proof. defense bears the burden of The “element,” all that is intended is that Kentucky relevant provide: statutes a defendant provides necessary once evidentiary predicate, prosecution has proof; 500.070 Burden of defenses proof the burden on that issue. (1) The Commonwealth has the burden Thus, analysis concluding the court’s of proving every element of the case Kentucky Supreme that the Court violated doubt, beyond a except reasonable process, proceeds due from an erroneous (3). provided as in subsection This premise actually as to what the court ruled however, provision, does not require appeal, relative to Gall’s as well as a mis- disproof any element that is enti- reading of the earlier cases. The trial “defense,” tled a as that term is used fact, in in a judge, proceeded manner con- code, in this unless the evidence majority sistent with what the contends tending support the defense is of then-existing was the law and instructed probative such force that in the ab- jury appropriately. countervailing sence of evidence the In a in a claim case which there is defendant would be entitled to a di- acting under extreme emotional distur- acquittal. rected verdict of defense, insanity bance and an the differ- (2) require No court can notice of a kept ence between the must be two clear. defense to trial time. prior surrounding key The facts murder are to the emotional extreme disturbance de- (3) The defendant has the burden of surrounding fense. The facts defendant’s proving only an element of a case if key mental disease or are to the defect the statute which contains that ele- insanity defense. This distinction is criti- provides that the defendant ment Everyone agree cal in this case. may prove exculpa- such element in had problems Gall mental and had tion of conduct. his Yet, previously been institutionalized. Ky.Rev.Stat. §Ann. 500.070. presented nothing require Gall that would permit jury or to see crime retardation 504.020 Mental illness or through eyes his because “no reasonable (1) explanation person responsible or excuse” offered A is not for crim- was required by inal if at time the statute. At the risk of conduct of such conduct, repeating myself, there has to be some- as a result of mental illness retardation, he thing either done the victim or inherent lacks substantial appreciate in mur- surrounding capacity the circumstances either majority concludes on the Although the or to con- criminality his conduct testimony that expert basis of require- conduct form murder, rape and day on the insane law. ments of certainly required was not jury (2) chapter, the term in this used As Kentucky that conclusion. As reach retardation” does illness or “mental lengthy out in its points Supreme manifest- abnormality not include conviction, this affirming Gall’s opinion criminal or oth- by repeated ed many respects, an unusual trial conduct. antisocial erwise acted, at which was that Gall the least of The part, as his own counsel. least (3) ill- may prove mental A defendant found, I Kentucky agree, retardation, in this as used ness or the so-called bizarre trial tactics some of section, criminal exculpation actually very Gall were indulged conduct. opportunity had an clever.7 § 504.020.The commen- Ky.Rev.Stat. Ann. *73 in action in a man- the defendant observe § 504.020states: tary to in criminal juries afforded to ner seldom cases, insanity in an much less those which prior the law adopts The section also absolutely There is no defense is offered. proof the burden of on governed which law, evidence, procedure, which rule of or insanity. Previously the the issue of jury to find Gall compelled would have burden; and, had to bear that defendant does common sense com- insane. Neither (3) of this section continues to subsection seeing In addition to Gall pel result. in- prove that the defendant his require action, jury per- from in the heard several sanity. chance who had a to observe Gall sons insane, was the court concluding Gall within hours of the murder. his demeanor by psychia- two upon relies statements jury “snap- was entitled to credit this concerning existing mental trists Gall’s appreci- that he of Gall and conclude shot” unequivocally said condition who never criminality of his conduct and was ated the murder, that, day on of the Gall either the commit the impulse to resist the able or, doing what he was if didn’t understand if had chosen to do so. murder he did, unable to resist the that he was II. impulse to violate the law. There is no that the “mental disease or defect” doubt concludes, another The court also as satisfied, prong insanity defense was of the conviction, reversing ground Gall’s mental condition “snapshot” but Gall’s oc- prosecutorial misconduct egregious never day pre- on the of the murder was I first respectfully disagree. curred. I jury any degree of sented to the acquit the that the court’s decision to note certainty, they in a form would be com- insanity by defendant reason of subsumes pelled accept. Upon cross-examination they relate to Gall’s all other errors unless Noelker, by prosecutor, focus, Dr. the de- Thus, the insofar insanity defense. expert, specify fense was unable to even con- alleged prosecutorial misconduct is might one event which have caused Gall to cerned, alleged must be on the acts in leave the state of remission he was insanity on de- misconduct which bore suddenly legally become insane 8:00 to several point fense. The court does day prosecutor a.m. on the he murdered Lisa Jansen.- made clos- comments every in- Noelker admitted that because of in each and ing argument, also but amnesia, of con- Gall’s his mental condi- the remarks are taken out claimed stance very of the ignore essence day tion of the murder was difficult text way this trial unfolded. ascertain. I.Q. 7. Gall has of 124. case, always generally participation

Although not Gall’s his own trial. It is insanity offers an de- clear that seeking get when a defendant Gall was a full merits, that he commit- acquittal fense there is little doubt on the even though his insanity ted the crime and the defense is counsel relying insanity was on an defense. working his last resort. Such is the case here. This purposes cross fur- never made a believable claim of inno- ther eyes prosecutor evidence of the cence, majority opinion insanity and the does not was a sham defense in this Therefore, hint at innocence. it is even case. Gall was doing his best to show the innocent, that under these circum- jury understandable he was sane and while the prosecutor bring experts stances the out his called attorney were trying artillery heaviest and direct at the insan- to show he was testimony insane. The ity certainly experts defense. This is not a license thus became critical. Al- arguments, to make but the ar- improper though prosecutor’s attacks on their guments that were made have to be testimony may have been inartful and at against backdrop of the nature inappropriate, they viewed times even were all for insanity defense in this case. purpose trying keep confusing fact that Gall had a with, begin given To there is no doubt mental disease with the conclusion that as history any professional health a result he legally very insane —a brought testify in to would indicate Gall legitimate goal. the Supreme As suffered from a mental disease. This ex- Estelle, stated Barefoot plains why government did not offer *74 77 L.Ed.2d 1090 psychiatric testimony, additional a fact (1983), “[pjsychiatric testimony predicting majority that the to find significant. seems dangerousness may only be countered not just many But schizophrenics as there are as erroneous ... but also generally so day-to-day in society who function that it ignored.” unreliable should be crimes, schizophrenics commit no there are who, crime, they at the time commit a are degree To the prosecutor the com- distinguish right wrong able to from sin, the “I clearly mitted believe” it was im- acting are not under an irresistible error. a harmless This was not case of a case, pulse. prosecution’s In this the theo- prosecutor vouching government for some ry faking inability was that was the to Gall but, agent credibility, or secret informant’s surrounding remember the events Lisa rather, prosecutor commenting on the of point worthy Jansen’s death. This is of testimony experts of in a in field which the further elaboration. jury prosecutor special knew the had no in though light jury’s

Gall was in a bind that even the expertise. of extensive action, eyewitness rape no saw him and shoot in opportunity jury to see the Jansen, Lisa he was in in positively position identified as was a far better than is usual perpetrator robbery insanity involving the of the store and a case an defense to police shooting that in place weigh testimony experts officer’s took the of the the shortly after the time of Lisa’s murder. context of all the other relevant Al- facts. po- though prosecutor arguably Gall admitted he remembered the the erred lice him and chasing shooting urged jury remembered when he the to not let Gall trooper, the state but society, jury already indicated he could return to was immediately guilty by not recall his actions aware that a verdict of rea- before not tying insanity that. The circumstantial evidence son would have its conse- Furthermore, him very strong. quences. prosecutor to Lisa’s murder was did circumstances, consequences. Under these it should not not overstate the As I earlier, in civil surprising prosecution pointed any post-trial be that the felt this out very convenient case proceeding was of amnesia and commitment the test is not argued accordingly. Into this mix came whether the defendant was insane when he conviction, the vehicle and this was crime, he is but whether

committed doing so. Kentucky Supreme As the now. insane “it cannot appeal: in Gall’s stated Court govern- strategy It was not committed, he will be

truthfully said say would who try to find someone ment to enough partici- to be if he is sane because human normal perfectly that Gall was very little likeli- trial there in the pating content was government being. im- insane validly found being hood of his with the facts experts counter defense Gall, 607 S.W.2d learn mediately thereafter.” and what of the case defen- original). observing (emphasis for themselves con- what the court Contrary to dant. Kentucky Supreme appeal, direct On having cludes, better off defendant allegations little of the thought so by deposition than testify Dr. Chutkow little spent it misconduct prosecutorial which testimony, deposition His person. Now, on discussing them. no time in the com- to his involvement was limited scope, review, its narrower habeas trial, little was of phase petency to in- unobjected these finds majority I was this the case So much value. conduct to be suf- prosecutorial stances the defense decision firmly believe hardly This a reversal. require ficient videotape deposi- objection to the raise court the of the state affords decision good decision and strategic was a tion due. deference that is one to boot.8 made his could have Dr. Chutkow III. govern- valuable to testimony more ability to turn, my the best I now As the person. ment if he had testified it, followed path ironically to the tortured seems points follow court out— testimony that there of little to reach its conclusion the court me—Dr.Chutkow’s insanity. Amendment None- Gall’s Sixth value on the issue was a violation of or no theless, signifi- would elevate its to mandate rights sufficient confrontation con- the bald and through *75 cance erroneous government presented The acquittal. an the provided “Dr. Chutkow health clusion testimony only mental the its showing of rebutting only [the] Chutkow, evidence by videotape Dr. professional, that, shows insanity.” This statement why this were not told deposition. We the simply misses again, once the court record, It is clear from was done. to the were no witnesses mark. There however, informed Gall’s counsel claimed am- or to Gall’s rape and murder not offer prosecution did court that if draw its con- jury The was free to nesia. In testimony, he would. Dr. Chutkow’s (1) its insanity from issue of clusion event, any concludes that any court demeanor; (2) testi- impressions of Gall’s procedurally defaulted claim of error was emo- lay from witnesses Gall’s mony about cause for the cannot show time of state tional and mental near Nonetheless, goes then default. court crime; (3) offering testimony expert qualify here on to find the circumstances as Gall’s post-hoc clinical conclusions jus- miscarriage of for the “fundamental condition; and emotional general mental exception tice” because “the Confrontation (4) genu- conflicting opinions clearly way stood Clause violation amnesia. ineness of Gall’s insanity.” This for reason of acquittal critical to his simply conclusion won’t claim of amnesia was result-oriented defense, trier of insanity I and a rational speaking pejoratively, water. Not hold A credited this claim. fact need have “result-oriented” because not use term concluded trier of fact could have way keep find a this defen- rational court had to paranoid schizo- although Gall was a custody vacating after his murder dant of counsel. rejects assistance Significantly, Gall’s claim ineffective the court of remis- during period he killed phrenic, criminality in which he understood the

sion acting pursuant not of his actions and was impulse. to an irresistible sum, impossible it is to conclude that jury gave weight undue to Dr. Chud- testimony all he was that kow’s since said trial, and the competent Gall was to.stand that for themselves. As the observed concludes, the Confrontation Clause procedurally issue has been defaulted and only has cause not shown for the been rather, default, but, good why reason apparent. issue was never raised is miscarriage justice” “fundamental that has occurred is the court’s.conclusion despite jury’s verdict to the con-

trary, guilty Gall must be found not insanity.9 reason of 607 S.W.2d at 112. WILKINSON,

Mark Petitioner-

Appellant, COWAN, Warden, Roger D. Respondent-Appellee.

No. 99-1220. Appeals, United States *76 Seventh Circuit. Argued Dec. Decided Nov. Rehearing Rehearing En Banc

Denied Jan. my majority my necessary. 9. After I circulated cation of dissent is I have dissent primarily responding clearly my disagreement made revisions aimed at set forth the basis of my carefully analysis reviewing dissent. write further After with the court's and to revisions, purpose. I have no further modifi- would serve no useful concluded