# Appellants Reply Brief — Patterson v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0147%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Reply Brief - **Published:** January 1, 1977 - **Citation:** 432 U.S. 197 ## Text —= In The Supreme Court of the United States October Term 1976 No. 75-1861 GORDON G. PATTERSON, JR.., Appellant, V. PEOPLE OF THE STATE OF NEW YORK, Appellee. On Appeal from the New York Court of Appeals BRIEF FOR THE APPELLANT BETTY D. FRIEDLANDER The Clinton House Ithaca, New York 14850 VICTOR J. RUBINO 280 Park Avenue 14th Floor West New York, New York 10017 Attorneys for Appellant Daily Record Corporation Spaulding Law Printing Rochester, New York (2409) | Supreme Court, U. § : FILED Nec 3 1976 , MICHAEL RODAK, JR., CLERK s) es | er TCR at oe ae eee Cee ee At Sn Ri nat OLE es CL CE ° 10 met A Par A A A tls em a = TABLE OF CONTENTS a re aa dues cuese es es ee gu ee eek s be anere D & - 5 — 5 -& Nw NH = da ie cee k bdaesebabnkees as 19 ARGUMENT POINT | — THE MAJORITY OPINION BELOW, UPHOLDING THE VALIDITY OF THE NEW YORK PENAL LAW REQUIREMENT THAT THE DEFENDANT IN A MURDER PROSECUTION MUST BEAR THE BURDEN OF PROVING THE AFFIRMATIVE DEFENSE THAT HE WAS “ACTING UNDER THE INFLUENCE OF EX- TREME EMOTIONAL DISTURBANCE” IN ORDER TO REDUCE MURDER TO MAN- SLAUGHTER, IS IN DIRECT CONFLICT WITH THIS COURT’S DECISIONS IN MULLANEY VP. WILBUR AND IN RE WINSHIP. ................ 16 i SI cade cepcaies cdanenenhases 16 1. The New York Affirmative Defense Is Functionally Identical To The Defense Declared Unconstitutional DT 39 14T he case cited by the Patterson majority was Stokes v. People, 53 N.Y. 164 (1873) 39 N.Y.2d at 299. Stokes held that mere proof of killing does not imply premeditation. New York has since “discarded” the concept of pre- meditation because it was “nebulous.” People v. Patterson, supra at 299, ‘A. 107); see also, People v. Caruso, supra. 15The Patterson majority referred to two major sources ivr its description of the extreme emotional disturbance defense: Model Penal Code §201.3 and Comment (Tent. Draft No. 9 1959) and the Notes of the Staff of the State Commission on Revision of the Criminal Law and Penal Code, Gilbert's Criminal Law and Practice of New York (1967). These are set forth in full in Appendix B to this Brief.* These sources establish two crucial points. First, the extreme emotional disturbance defense is firmly grounded in the common-law heat of passion defense. Second, the phrase extreme emotional disturbance attempts to represent a definitional improvement that is more “logical and fair” to the defendant. These two points are related because the logic and fairness arise from attempts to improve the application of the common-law mitigation from murder to manslaughter, and not to create a wholly new defense. *Also included in this Appendix are relevant excerpts from Hechtman, Practice Commentary to N.Y. Penal Law §1 25.20 (McKinney 1975). 28 N.Y.2d at 302, (A. 111). The reason why this liberality should in essence be a quid pro quo for shifting the persuasion burden to the defendant is not articulated in the majority opinion, but the concurring opinion of Chief Judge Breitel does articulate certain arguments relative to the liberality of affirmative defenses generally. 39 N.Y.2d at 305-307, (A. 114-116). a) Hardship of Proof does Not Justify Shifting The Per- suasion Burden Chief Judge Breitel argued that it is unfair to require the prosecution to prove facts peculiarly within the knowledge of the defendant, 39 N.Y.2d at 305-306, (A. 114, 115). This is the more general justification for shifting the burden of persuasion for affirmative defenses. See, Hechtman, Practice Commentary to N.Y. Penal Law §25.00 (McKinney 1975) at 62-63; Model Penal Code §1.13, Comment (Tent. Draft No. 4 1955) at 108- 114.'6 This was the argument of the State of Maine in Mullaney and it was rejected. 421 U.S. at 701-702. The issue thus becomes whether there is anything in the broadened scope of the extreme emotional disturbance defense that mandates a different result. !‘ It is clear that the prosecution has a difficult task to meet the burden of proof in certain areas. The difficulties of proof are evident in an area such as intent which the trial judge in Pat- 16Significantly the Model Penal Code does not shift the burden of persuasion to a defendant on its extreme emotional disturbance defense. Model Penal Code §201.3 (Tent. Draft No. 9 1959); Model Penal Code §3.01, Comment (Tent. Draft No. 8 1958) (at 4); Model Penal Code §1.13 (Tent. Draft No. 4 1955) at 108-114. 17The convenience of the parties or hardship of proof argument has been criticized as a use of civil procedure which has no place in the criminal law system where the paramount societal interest is in convicting for each specific crime only those who are blameworthy rather than all those who might be blameworthy. Fletcher, supra n. 12; cf. Morrison v. California, 291 U.S. 82 (1934). 29 terson aptly described as a “secret operation of the mind” (A. 71), or, as Mr. Justice Jackson described it — the “elusive mental element”. Morrissette v. United States, 342 U.S. 246, 248 (1952). Yet difficulty of proof is not a justification for shifting the burden on intent to the defendant. First there are acceptable and easily comprehended methods of proof of inner thought processes. One traditional method is an assessment of a person's conduct and actions and the results which ensue. (See trial Judge's charges in Patterson, (A. 69, 70) ). In this regard it must be stressed that in determining whether or not a defendant acts under the influence of extreme emotional disturbance, the “ultimate test” is an objective one, even though the concept of extreme emotional disturbance introduces a “larger element of subjectivity” (i.e. reasonable explanation or excuse). Model Penal Code, §201.3, Comment (Tent. Draft No. 9 1959) (at 41). See Appendix B to this Brief.!® The Patterson case is a good example of this objectivity test to assess action and con- duct. As the judge charged the jury about the facts “... what happened is clear except for minor discrepancies,” (A. 73). Mullaney cites two other factors which are relevant to the validity of the hardship of proof argument. One is that “most States require the prosecutor to prove the absence of passion.” 421 U.S. at 701. This consensus is also true of the States adopting the extreme emotional disturbance defense. See Ap- pendix A to this Brief. The other factor this Court looked to in Mullaney was what the State itself required in the way of apportioning the burden of proof on other similar issues and noted that Maine required the prosecution to disprove self-defense. Mullaney, supra, at 702. 18 Actually, Maine has characterized heat of passion, per se, as a “subjective condition” which is ‘‘in the ultimo” objective because the provocation must be “adequate.” State v. Rollins, supra at 920. This is a description remarkably similar to the Comments of the Model Penal Code description of extreme emotional disturbance. Model Penal Code §201.3, Comment (Tent. Draft No. 9 1959) (at 41); see Mullaney, supra at 702. 30 With respect to self-defense, this is also true of New York. N.Y. Penal Law §§25.00, 35.00 (McKinney 1975). More significantly, New York traditionally places the ultimate burden of persuasion of disproving insanity on the prosecution. N.Y. Penal Law, §30.05 (McKinney 1975); People v. Silver, 33 N.Y.2d 475, 310 N.E.2d 520, 345 N.Y.S.2d 915 (1974); see also, Davis v. United States, 160 U.S. 469 (1895). As a practical matter, as is true of self defense, the extreme emotional disturbance and heat of passion defenses by their nature generally admit the major portion of the prosecution's case. Of necessity, the assertion of such defenses requires an admission from the defendant that he was present at the scene of the crime and that he did, in fact, do the killing. This weakens the force of the hardship argument. Moreover, this Court made clear in Mullaney that the defense must be properly presented and thus a requirement may be imposed on the defendant that he give notice of the defense. Williams v. Florida, 399 U.S. 78 (1969); See N.Y. Crim. Proc. Law §§250.10 and 250.20 (McKinney 1971) (notice of in- sanity defense and notice of alibi). Further, where the defense intends to rely on psychiatric testimony, the defendant can be required to submit to pre-trial examination by 2 prosecution psychiatrist.!9 Lee v. County Court, 27 N.Y.2d 432, 267 N.E.2d 452, 318 N.Y.S.2d 705, cert. denied, 404 U.S. 823 (1971). People v. DiPiazza, 24 N.Y.2d 342, 248 N.E.2d 412, 200 N.Y.S.2d 545 (1969). Thus, nothing hinders the prosecution from a full investigation into the source of the so- called “subjective facts”, to wit, the defendant himself. There are of course, some situations where because of dif- ficulty of proof the burden may be shifted to the defendant. But 191n Patterson, the prosecution did in fact have its own psychiatrist examine appellant prior to trial, but the expert witness was not called by the prose- cution at trial because he would have supported Appellant's case (A.62; R. 1128). ee 31 none of these are analogous to the extreme emotional distur- bance defense. These cases deal with specific matter which would normally be only in the defendant’s possession and which the defendant is required to produce or lose on that issue. Rossi v. United States, 289 U.S. 89 (1933) (defendant must produce bond and registration); United States v. Fleischman, 339 U.S. 349 (1950) (evidence of good faith in complying with sub- poena); see also, Morrison v. California, 291 U.S. 82 (1934); People v. Felder, 32 N.Y.2d 747, 297 N.E.2d 522, 344 N.Y.S.2d 643, aff'g. 39 App. Div. 2d 373, 339 N.Y.S.2d 992 (2d Dep’t (1972), appeal dismissed sub nom, Felder v. New York, 414 U.S. 948 (1973) (defendant must prove weapon not loaded or inoperable.) Cases of this kind have been analyzed as situations which bear almost no possibility that an innocent defendant may be convicted for failure of proof on the issue in question and it is this reliability factor which allows the burden to be shifted. Ashford and Risinger, Presumptions, Assumptions and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165, 180-81 (1969). The above line of cases and the Ashford and Risinger analysis which justify them do not apply to extreme emotional distur- bance any more than to the heat of passion defense for the reasons stated above. b) A Laudable Purpose Does Not Justify Shifting The Burden Chief Judge Breitel also makes reference to the “salutary criminological purposes served by the development of af- firmative defenses, even where the burden of proof rests on the defendant.” People v. Patterson, supra at 305, A. 114. By itself, a laudable purpose should not justify shifting the persuasion burden to the defendant. This Court has rejected such an argument where the prosecution had the burden of proof, but by a lesser standard than reasonable doubt. In re Winship, 397 U.S. 358, 365-66 (1970); see also, In re Gault, 387 U.S. 1, 27, 32 36 (1967). Since the foregoing cases are set in the context of juvenile proceedings which are saturated with benefical in- tentions, a laudable purpose argument would have even less force in the context of adult crimes. The laudable purpose test is, however, coupled with the “political considerations” argument which states that laudable affirmative defenses will not be enacted into law unless legislators can be given a trade-off on the burden issue. People v. Patterson, supra at 305-306, A. 114-115. There are two things wrong with this argument. First, it is by itself not based on any principle of law.?° See Fletcher, supra at 928-29. In a related line of cases this Court has rejected such political arguments. As Justice Marshall has stated: A State may not employ an invidious discrimination to sustain the political viability of its programs. As we observed in Shapiro, supra, at 641, 89 S.Ct., at 1335, “[plerhaps Congress could induce wider state par- ticipation in school construction if it authorized the use of joint funds for the building of segregated schools,” but that purpose would not sustain such a scheme. See also Cole v. Housing Authority of City of Newport, 435 F.2d 807, 812-813 (CA 1 1970).”’ Memorial Hospital v. Maricopa County, 415 U.S. 250, 267 (1974). Second, this “political considerations” argument is not supported factually. Most of the States adopting the defense of extreme emotional disturbance do not shift the persuasion burden to the defendant. (See Appendix A to this Brief). Also with regard to the “political considerations argument, the Model Code treatment of entrapment is advanced by Chief Judge Breitel as an example of how a compromise on the burden 20If we assume complete retroactivity on this issue, as the Patterson majority did, ten this argument, by itself, allows “sacrifice” of appellant and all others convicted of murder since 1967 who raised this defense on the mere possibility that the legislature might deprive future defendants of this defense in murder cases. This is attested to by the facts that: (1) the deliberations took roughly fifteen hours over a period of two days (A. 82, 85, 86. 87); and (2) the jury made four requests for clarification of the charge. These requests were for a reading of the portion of the charge pertaining to ihe definitions of the two crimes charged — Murder and Manslaughter, in the First Degree (A. 83, 84); a second reading of those same portions of the charge (A. 92); a copy of the defendant's psychiatrist's report (A. 83); and a copy of defendant's testimony (A. 86-88). As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-26 (1958): “there is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden .. . of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.” The margin of error in this case was unconstitutionally enlarged, to Appellant's detriment, and, therefore, this con- viction must be reversed. 23See Shapiro, Affirmative Defenses After Mullaney v. Wilbur: New York's Extreme Emotional! Disturbance, 43 Brook. L. Rev. 171 (1976). —- 37 POINT II THE INSANITY DEFENSE IS CLEARLY DISTINGUISHABLE FROM THE EXTREME EMOTIONAL DISTURBANCE DEFENSE. The Appeliee has cited cases upholding the requirement that the defendant bear the burden of proving insanity in support of the proposition that Patterson is consistent with other jurisdictions in applying Mullaney (Point A (5) of Appellee’s Motion}. The implication of Appellee’s reliance upon insanity cases is that placing the burden of proving insanity upon the defendant is constitutional.?4A ppellant submits that the defense of emotional disturbance cannot be equated with the insanity defense. 1. The Defenses are Separate and Distinct in the New York Statutes. The Patterson majority did not base any part of their decision on a claim that extreme emotional disturbance should be treated constitutionally in the same manner as the insanity defense. Extreme emotional disturbance and insanity are two legally distinct defenses in New York; and, most significantly, New York does not shift the persuasion burden on insanity as it does with extreme emotional disturbance. N.Y. Penal Law §30.05 (McKinney 1975); Brotherton v. People, 75 N.Y. 159 (1878); 24Se Mullanzy, supra, 704-706 (Rehnquist, J. with Burger, C.J., con- curring); Leland v. Oregon, 343 U.S. 790 (1952); Rivera v. State, 351 A.2d 561 (Del), appeal dismissed sub nom. Rivera v. Delaware, US. ,45 U.S.L.W. 3279 (1976); but see, Davis v. United States, 160 U.S. 469 (1895); Buzynski v. Oliver, 538 F.2d 6 (1st Cir. 1976); United States v. Eichberg, 439 F.2d 620, 624 (D.C. Cir. 1971) (per curiam) (Bazelon, C.J. dissenting); United States v. Rustin, 533 F.2d 879, 890, n.33 (3rd Cir. 1976) (Adams, J., dissenting); see also, Note, Constivutional Limitations on Allocating the Burijen of Proof of Insanity To The Defendant In Murder Cases, 56 B.U.L. Rev. 499 (1976). 38 People v. Silver, 33 N.Y.2d 475, 310 N.E.2d 520, 345 N.Y.S.2d 915 (1974). 2. The Defenses are Different in Concept and Legal Function. Other responses to an attempt to lump extreme emotional disturbance with insanity proceed along different analytic lines. One is that extreme emotional disturbance, like its forebear heat of passion, is the distinguishing element between two of the gravest common law crimes — murder and manslaughter. Thus, for burden of proof purposes, as a matter of substance, these defenses go necessarily to a mental element (albeit a negative one) of the crime of murder (when put in issue), regardless of what formal label (i.e. mitigation) a state may give it. Mullaney v. Wilbur, supra at 699. At least insofar as the concurring opinion in Mullaney is concerned, this analysis of the heat of — defense distinguishes it from insanity because : . legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime.” Id. at 706. 25 Like the heat of passion defense, extreme emotional disturbance warrants the same analytic distinction from the insanity defense. The function of both the heat of passion and extreme emotional disturbance defenses is identical — both defenses warrant reducing murder to manslaughter because of a less culpable form of intent. Insanity, on the other hand, 25See Note, supra, 56 B.U.L. Rev. at 499 et seq., where it is pointed out that because of the diversity of state-by-state interpretations of insanity the proposition quoted above, may be applicable only to those state rules where in fact there is no necessary relationship to the required mental! element. In any event, where proof of a fact distinguishes manslaughter from murder, this fact necessarily goes directly to the required mental element of murder ; otherwise there is no reason for the distinction. Therefore, it is the very concept of heat of passion and extreme emotional disturbance, not a state- by-state analysis that is determinative. 39 exonerates a defendant from criminal liability entirely. A defendant convicted of a reduced crime of manslaughter is not exonerated, but rather he may be given a lesser penai sanction than would have been imposed for a conviction for murder. When insanity is proved, the defendant does not receive a penal sanction because incarceration will have no deterrent or rehabilitative effect on a person who is insane. The criminal process in such a case fulfills no purpose. See Chernoff and Schaeffer, Defending the Mentally Ill: Ethical Quicksand, 10 Am Crim. L. Rev. 505, 506 (1972); Wechsler, supra. The difference in the focus of the inquiry between insanity and heat of passion /extreme emotional disturbance is critical. With heat of passion/extreme emotional disturbance, the inquiry centers on establishing the “required mental element” ”° for the crime of murder or manslaughter; with insanity, the inquiry is directed to the defendant's mental status for the purpose of determining whether or not any penal sanction is appropriate. See Comment, Unburdening the Criminal Defendant; Mullaney v. Wilbur and the Reasonable Doubt Standard, 11 Harv. C.R.-C.L.L. Rev. 390, 405 n. 65 (1976); Hart, Punishment and Responsibility, 188-209 (1968). 3. There is 2 Qualitative Difference in the Hardship of Disproving Each Defense. There is another analysis of the insanity defense which arguably affects the extreme emotional disturbance defense as distinguished from the heat of passion defense. Proponents of the “hardship of proof” argument note that since insanity is a much more subjective defense requiring proof concerning the defendant's state of mind and behavior, it is fair to place the 26See People v. Patterson, supra at 304, A.113, where the majority stated: “. . . the defendant had not established that his intent was formulated under the influence of an extreme mental trauma.” 40 burden on the party asserting it. See Buzynski v. Oliver, 538 F.2d 6 (1st Cir. 1976).7* Appellant's general response to the hardship of proof argument is set footh in Point 1.B (2-a). Specifically with reference to a comparison to insanity, defendant contends that extreme emotional disturbance like heat of passion is ultimately based on an objective standard while insanity is subjective. Mullaney v. Wilbur, supra at 702. The issue with insanity is whether or not the defendant himself is insane, without regard to any external triggering mechanism or provocation. The reasons why a defendant is insane are not, per se, relevant. The focus is thus of necessity internal and subjective. Extreme emotional disturbance, on the other hand, refers not on!y to the reasons why the defendant lost control, but also asks whether there is “reasonable explanation or excuse” for the defendant's conduct. It is true that “the reasonableness . . . is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as he believed them to be,” and this introduces some subjectivity, ** but in the words of those responsible for the formulation of the extreme emotional disturbance defense, the “ultimate test” is objective. Model Penal Code §201.3 Comment (Tent. Draft No. 9 1959) (at 41, 46-48); (Appendix B-1 — B-3 of this Brief). The Patterson case is a good example of the ultimate objective standard applied to an extreme emotional disturbance defense. The definition of the defense provided to the jury by the court 27Since New York places the ultimate burden of persuasion for insanity on the prosecution, it is difficult to see how this argument carries weight insofar as New York is concerned. 28 As defendant has already pointed out even Maine has described heat of passion as basically subjective. but made objective because the ultimate test is the adequacy of the provocation. State v. Rollins, supra, 919, 920. Under former law, New York has described “heat of passion” as “primarily being a state of mind.” People v. Peetz, 7 N.Y.2d 147, 151, lo4 N.E.2d 384, 196 N.Y.S.2d 83 (1959). ODE DR AREA em he 41 was starkly simple — “self evident in meaning” People v. Patterson, supra at 293, (A.99). The Court instructed the jury that the basic facts upon which they were to make their determination of the affirmative defense were not in dispute (A.73). These facts and events included the stormy marital re- lationship, the discovery by appellant of his wife’s illicit affair with the victim, the exchange of Christmas presents, the fateful sermon two days later, and finally the discovery by Appellant later that evening of his wife half undressed in the presence of her lover are all relevant and essentially objective circumstances. The psychiatric testimony in Patterson was laced with reference to facts and events which were the subject of proof at trial (A.3-37).29 This is to be compared with the conclusions of psychiatrists in cases of insanity such as “psychopathic per- sonality”, ‘psychopathic trait disturbance’’ and “schizophrenic paranoid”. People v. DiPiazza, 24 N.Y.2d 342, 349-50, 248 N.E.2d 412, 300 N.Y.S. 2d 545, 551 (1969); People v. Lee, 29 App. Div. 2d 837, 277 N.Y.S. 2d 607, 608 (4th Dep’t 1968). Thus, as a matter of proof, extreme emotional disturbance is clearly more within the ambit of the heat of passion defense (Mullaney v. Wilbur, supra at 702) than the subjective be- havioral criteria applicable to a determination of insanity. *° 29The mere fact that psychiatric testimony was presented can be of no par- ticular significance since psychiatrists are also used in “heat of passion” cases. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286, 287 n.1 (1972). 30Extreme emotional disturbance has no psychiatric diagnostic classification. People v. Shelton, Misc.2d =, 385 N.Y.S.2d 708, 715-716 (Sup. Ct. N.Y. Co. 1976). “In order to arrive at a definition of ‘extreme emotional disturbance’ to apply to defendant's actions in this case, I asked both forensic psychia- trists to state their understanding of the term. (Both are very experi- enced witnesses who have given expert testimony in hundreds of “They agreed that this term is a creature of law and has no diagnostic classifi. ation in the Diagnostic and Statistical Manual of the American Psychiatric Association.” 42 4. State Practices Do Not Support Shifting The Burden On Extreme Emotional Disturbance. A fourth response to the attempt to lump extreme emotional disturbance with insanity is that the inquiry into state practices so important to sustaining the shift in burden on insanity in Leland (Leland v. Oregon, supra at 798) cuts the opposite way with the defense of extreme emotional disturbance. Appendix A to this Brief shows that most states adopting the ALI Model Penal Code defense place the burden on the prosecution. More- over, since the Model Penal Code defense is firmly grounded in the common law heat of passion defense, the state practice on this defense is also relevant and the clear trend is “‘toward requiring the prosecution to bear the ultimate burden of proving this fact.’ Mullaney v. Wilbur, supra at 696. 5. New York Has Eschewed A Presumption Analysis Of Extreme Emotional Disturbance. Finally, it should be noted that the burden of proof issue on the insanity defense is bound up with the presumption?! of “all English-speaking courts” that all men are sane. Leland v. Oregon, supra at 799. In this regard it is important to note that New York has eschewed a presumption analysis with regard to extreme emotional disturbance. People v. Patterson, supra at 299, (A.107).32 Nor did Mullaney proceed on a presumption analysis. Mullaney v. Wilbur, supra, at 702 n. 31. In fact, it is difficult to perceive how a killing in the “‘love triangle” context could be presumed not to be in the heat of passion when the context is the most common one for asserting the heat of passion 311m fact this was referred to as a “doctrine” in Leland. Leland v. Oregon, supra at 796. 32Compare People v. Felder, 32 N.Y.2d 747, 297 N.E.2d 522, 344 N.Y.S.2d 643 (1973), aff'g. 39 App. Div. 2d 373, 339 N.Y.S.2d 992 (2d Dep't 1972), appeal dismissed sub nom. Felder v. New York, 414 U.S. 948 (1973). This decision was based on a presumption analysis. . ee 43 type of defense. 40 Am. Jur. 2d Homicide §65 (1968). See also, Model Penal Code §1.13, Comment (Tent. Draft No. 4 1955). Further a presumption analysis cannot justify shifting the persuasion burden to the defendant. In the terms used by Ash- ford and Risinger, supra, such a shift would be denominated an “assumption” (i.e. a presumption that in fact does more than require a defendant to show “some evidence” to rebut the presumption). This clearly is in conflict with the persuasion burden required by Mullaney. Mullaney v. Wilbur, supra at 702-703 and n.31; see also Lavine v. Milne, USS. , 96 S.Ct. 1010, 1016 n.10 (1976). Thus, no factor which supports shifting the burden of per- suasion for the insanity defense supports a similar shift for the extreme emotional disturbance defense. 33See Note, Affirmative Defenses and Due Process: The Constitutionality of Placing a Burden of Persuasion on a Criminal Defendant, 64 Geo. L.J. 871, 883 (1976); see also, United States v. Hendrix, F.2d ,N.Y.L.J. at 1, “ col. 6 (10/25/76) (2d Cir. 1976) where the court stated: ‘We have, in matters involving other presumptions, consistently held that a true presumption is a procedural device, not evidence; and that, when proof in rebuttal is introduced, the presumption is out of the case. (citations omitted) “This is the so-called ‘“Thayer”’ Rule which has been adopted by the American Law Institute in its Medel Code of Evidence, Rule 704(2), and is favored by most authorities in the field of evidence. See 9 Wigmore, Evidence, Section 2491 at 289 (1940); H. Weihofen, Insanity as a Defense in Criminal Law, 162 (1933); Richardson on Evidence, Section 63 (10th ed. 1973); Reaugh, Presumptions and the Burden of Proof, 36 IIL L. Rev. 703, 833 (1942); but cf. McCormick, Evidence, Section 316 at 665 et seq. (1954).” United States v. Hendrix, supra, at p. 17, col. 3. 44 POINT Ill *s RETROACTIVITY IS NOT A BAR TO CON. SIDERATION OF THE PATTERSON CASE WHICH REACHES THIS COURT ON DIRECT APPEAL. The New York Court of Appeals, in order to reach the constitutional issue in Patterson, explicitly held that Mullaney should be given retroactive effect. People v. Patterson, supra at 296, (A.103). The charge to the jury was given in Patterson on June 7, 1971, Id. at 294, (A.100), but the case was decided on direct appeal and comes before this Court on direct appeal. The dispositive argument favoring complete retroactivity®* is that Mullaney was based on Winship which was held by this Court to have complete retroactive effect in Ivan v. City of New York, 407 U.S. 203 (1972). Mullaney v. Wilbur, supra at 296, (A.103). Yet even without this fairly clear indication in Mullaney itself, the issue presented by this appeal passes the test set forth for determining retroactivity. This test has been stated in various ways, but devolves to this threshold question: Does the new ruling to be applied @ffect the very integrity of the fact finding process? Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966); Johnson v. New Jersey, 384 U.S. 719 (1966). In Williams v. United States, 401 U.S. GB. 646, 653 (1971), the test was stated as follows: “... Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance 34Since this matter comes to this Court on direct appeal Appellant need not prevail on complete retroactivity. See, Linkletter v. Walker, 381 U.S. 618 (1965). ~ 4 by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the ad- ministration of justice has sufficed to require prospective application in circumstances.” (footnote omitted). Since the Mullaney ruling deals with the application of the reasonable doubt standard which forms the framework for determining guilt or innocence for specific crimes, it should by this standerd be given retroactive effect. CONCLUSION In conclusion, defendant contends that Winship and Mullaney control this appeal. The New York affirmative defense of extreme emotional disturbance is functionally identical to the Maine heat of passion defense declared un- constitutional because of the shifting ~“f the burden in Mullaney. Substance should control form and thus Maine's use of the phrase ‘malice aforethought"’, found by this Court to be a policy presumption only and not a fact to be proved, should have no weight in distinguishing the New York defense. The more liberal wording of the New York defense similarly provides no reason for allowing the burden to be shifted to defendant, particularly since the defense is based on the ALI Model Penal Code defense which does not shift the burden. Further, the Winship analysis by this Court in Mullaney applies with equal analytic force to the extreme emotional disturbance defense. Finally, if a qualitative distinction between these functionally identical defenses is found which justifies not applying Mullaney, then Mullaney itself will be eroded because of the variety of practices among the states in defining and applying the heat of passion defense. 46 For the reasons stated in this brief, it is respectfully submitted that the decision of the New York Court of Appeals should be reversed and a new trial should be ordered. Dated: December, 1976 Respectfully submitted, Betty D. Friedlander Victor J. Rubino Attorneys for Appellant (affidavit of service omitted in printing) APPENDICES (‘aouaptaa jo suesepuodeid Aq ee auiezjx2,, jO seouesunozo Burjedry eaoid ian cenenaipeiabbaedine jeuonnpysucoun (C761) 1F9§ II 9P°D Pd (SL61 “ddng) Sppoy) (9L61) I PSV GPE “ARIS “4 senuany 9f9§ I1°9POO Pa IS ase MBI] “souapiaa ay jO auesepuodaid Aq aouequmisip [BUOTOUIS auanxe aaoid 0} wepuajep posnbar y se rejosul |BuCNNINSUOIUN amNyEIs JapINUT SPIoY ; _ (9261 "49 20uadng) C1) PZ"W OSE “Bz “ddng (ser) eesees$ + ?P* EAL unded in the Institute's commentaries (Model Penal Code Commentary, Tent. Draft No. 9, pp. 28- 29)." The Practice Commentaries to New York Penal Law $125.20 (Hechtman, Practice Commentaries to N.Y. Penal Law $125.20 (McKinneys 1975) State inter alia at 391, 393: “The common law enunciates the seemingly sound doctrine, known as ‘voluntary manslaughter’ and adopted in most American jurisdictions, that murder by intentional killing is reduced to manslaughter by a mitigating factor variously termed ‘heat of passion, ‘sudden passion,’ ‘provocation,’ and the like (1 Warren on Homicide [Perm. Ed.] § 85, pp. 416-417). The theory of the principle is one of extending a degree of mercy to a defendant who, though intending to kill, acted out of some kind of emotional disturbance rather than in cold blood.” * * * “Subdivision 2, in conjunction with a provision of the revised murder statute (§ 125.25[la]), restores to New York the aforementioned common law doctrine of reduction from murder to manslaughter on the basis of ‘heat of passion.’ In the restoration process, however, the phrase ‘in the heat of passion’ is abandoned as the --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0147%3A5. Public record. Not legal advice.