Petitioners Brief — Clark v. Arizona

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

Qo ==

No. 05-5966 | FEB? 2006 |

SR LAER LEO 7

In The

Supreme Court of the Anited States

ERIC MICHAEL CLARK,

Petitioner,

VS.

STATE OF ARIZONA,

Respondent.

On Writ Of Certiorari To The

Arizona Court Of Appeals

PETITIONER’S OPENING BRIEF

DAVID GOLDBERG

Attorney at Law

P.O. Box 746

Flagstaff, AZ 86001

Phone (928) 606-1618

Fax (928) 525-9352

Counsel for Petitioner

—-

COCKLE LAW BRIEF PRINTING CO (400) 225-5964

OR CALL COLLECT (402) 442 2831

QUESTIONS PRESENTED FOR REVIEW

(1) Whether Arizona’s blanket exclusion of evidence and

refusal to consider mental disease or defect to rebut the

state’s evidence on the element of mens rea violated

Petitioner’s right to due process under the United States

Constitution, Fourteenth Amendment?

(2) Whether Arizona’s insanity law, as set forth in A.R.S.

§ 13-502 (1996) and applied in this case, violated Peti-

tioner’s right to due process under the United States

Constitution, Fourteenth Amendment?

PARTIES. TO THE PROCEEDINGS BELOW

All parties to the proceedings below are named in the

caption of this matter.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................. j

PARTIES TO THE PROCEEDINGS BELOW.............. il

EE CE CI hii ici ss ccccddckovandebunbadiodeconsncece iil

Rs GI Se RE I voiditccdecuctiivaccdcopiovccandadeciecdiess vi

a re 1

a 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

a 1

EUS GPE BUM Gt issccssccdvcsscdccdvecevsccedscdsececes 2

In Fa 3

B. UD FOI BU isis cccicccciscnivccsenctsoszessecess 7

SUMMARY OF THE ARGUMENT .............................. 11

FES RE RIE Ae aes 5 ROR ED IES Art ON Pe AE 13

I. ERIC WAS DENIED DUE PROCESS WHEN

THE TRIAL COURT REFUSED TO CON-

SIDER EVIDENCE OF HIS SEVERE MENTAL

ILLNESS IN DETERMINING FACTUALLY

WHETHER THE PROSECUTION PROVED

THE MENTAL ELEMENTS OF THE CRIME

6 SIERRA ar Dae ee Mn aie AE 13

A. Foreclosing Eric from Refuting the Infer-

ences on Which the Prosecution Relied to

Prove the Mental States at Issue Violated

His Due Process Right to Contest Guilt at

FR Te Ge CD BIO oe idinnvecccnceccaceesskesscee: 13

II.

TABLE OF CONTENTS

Page

B. The Mott Rule Prohibiting Consideration

of Evidence of Mental Illness on the Issue

of Mens Rea Unconstitutionally Excludes

Probative Exculpatory Evidence. Foreclos-

ing Eric from Demonstrating Factually

that He Did Not — Because He Could Not —

Possess the Mental States Which Were

Elements of the Crime Charged Denied

Him the Right to Present a Defense Basic

to Procedural] Due Process..........................

C. If Arizona’s Evidentiary Prohibition is Con-

sidered Substantive, Foreclosing Eric From

Proving that Mental IlJness Made Him In-

capable of Forming the Subjective Mens

Rea Elements of First-Degree Murder De-

nied Him Substantive Due Process............

ARIZONA'S LAW OF CRIMINAL RESPON-

SIBILITY DEPARTS DRASTICALLY FROM

THE DEEPLY ROOTED, FUNDAMENTALLY

IMPORTANT, AND STILL PREVALENT STAN-

DARD, REFLECTED BY M’NAGHTEN AND

VIOLATES DUE PROCESG..................c.c0ssss00

A. The Arizona Statute Is Contrary to the

Most Deeply Rooted Historical Standard

BOP TI cisiascstcialncnatiatuacacesadsalaedpiatbiont a

B. The Vast Majority of States Continue to

Employ a Standard at Least as Broad as

CaO FE FOIE TIN nscndcsisasestvcsicccactiaaiccnsicie

C. Ample Precedent Supports the Conclusion

that States May Not Adopt an Insanity

Test Narrower than M’Naghten’s Without

Peas TG FIG ic csiccinciossscesssenneaisinssin

TABLE OF CONTENTS

Page

D. The Suggestion of the Court of Appeals

that Arizona’s Halving of the M’Naghten

Standard Made No Difference in Eric’s

Case Disregards the Record ...................... 46

Ill. ASSUMING DUE PROCESS PERMITS A

STATE EITHER TO HALVE THE INSANITY

DEFENSE OR TO ABROGATE AN INSANE

DEFENDANT'S MENS REA DEFENSE, ARI-

ZONA VIOLATED THE CONSTITUTION

EI TEENIE sccniisnndnstnordnscoverserncovsereseses 47

ich cti dni neste cntesadignindsnrtnsncacssudeniénsccsecotccete 50

TABLE OF AUTHORITIES

Page

SUPREME Court CASES

Ake v. Oklahoma, 470 U.S. 68 (1985).........00... b iealtataliatiaias 20

Baldwin v. Hale, 1 Wall. (68 U.S.) 223 (1863) ..........00.0.... 14

Chambers v. Mississippi, 410 U.S. 284 (1973)............ 22, 25

Cole v. Arkansas, 333 U.S. 196 (1948)... ccc ceeeeeees 14

Cooper v. Oklahoma, 517 U.S. 348 (1996) 0.0.0.0... 33, 39

Crane v. Kentucky, 476 U.S. 683 (1986).......... 20, 22, 23, 49

Davis v. Alaska, 415 U.S. 308 (1974)... ceeeeeeceeeeeeeeeees 22

Davis v. United States, 186 U.S. 373 (1897)........0..000000... 40

Durham v. United States, 214 F.2d 862 (D.C. Cir.

TIE dinntnscibelesciepediethenisteannccentsesnintadinadinintininiaeiladsitiaiiinsabiatiaudaaed 39

Fisher v. United States, 328 U.S. 463 (1946)..............000.. 25

Gardner v. Florida, 430 U.S. 349 (1977)..............0ccccc cence: 20

Goss v. Lopez, 419 U.S. 565 (1975)............ccceessessessesseerees 14

Hotema v. United States, 186 U.S. 413 (1902).................. 40

In re Oliver, 333 U.S. 257 (1948)..............ccccccccccceteeeeeeeeeees 14

Kelly v. South Carolina, 534 U.S. 246 (2002)................... 20

Lambert v. California, 355 U.S. 255 (1957).................00.. 27

Leland v. Oregon, 343 U.S. 790 (1952) ........... 33, 42, 43, 44

Martin v. Ohio, 480 U.S. 228 (1987) 20.0.0... ceeeceeeeeeee 42

Medina v. California, 505 U.S. 437 (1992)........... 33, 44, 45

Michael H. v. Gerald D., 391 U.S. 110 (1989)... 42

Vii

TABLE OF AUTHORITIES ~ Continued

Page

Miller-El v. Cockrell, 537 U.S. 322 (2003) ..............eeeee 26

Miller-El v. Dretke, 125 S.Ct. 2317 (2005)...................... 26

Montana v. Egelhoff, 518 U.S. 37 (1996) ........ 22, 23, 27, 33

Morissette v. United States, 342 U.S. 246 (1952)........ 26, 31

Mullane v. Central Hanover Bank & Trust Co., 339

Ay: SIE EEE Uictsicshinssaccansiiciedbaiusbabnstedigsdiseatbeecieetiatinies 14

Olden v. Kentucky, 488 U.S. 227 (1988).............000.ccceceeeees 22

Patterson v. New York, 432 U.S. 197 (1977).......... 26, 33, 45

Payton v. New York, 445 U.S. 573 (1980).............. sadiaall 30

Powell v. Texas, 329 U.S. 514 (1982).....0000000... 26, 43, 44, 45

Rivera v. Delaware, 429 U.S. 877 (1976) ...............ccccceeees. 42

Robinson v. California, 370 U.S. 661 (1962)............... 27, 43

Rock v. Arkansas, 483 U.S. 44 (1987) ......0.000000..... 20, 22, 25

Schad v. Arizona, 501 U.S. 624 (1991)... eee 23

Shafer v. South Carolina, 532 U.S. 36 (2001)................... 20

Simmons v. South Carolina, 512 U.S. 154 (1994) ........... 20

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

a UI Uiitionietuhtniniphsiidilibintcinhaisdladdiinpeteitiitieabilatntaipsiid ncdlec casi 32

Skipper v. South Carolina, 476 U.S. 1 (1986)....... cantbataiind 20

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............. 27, 33

Specht v. Patterson, 386 U.S. 605 (1967).............. PEE eA 20

Speiser v. Randall, 357 U.S. 513 (1958) ..........0000..... cece. 33

Trombetta v. California, 467 U.S. 479 (1984) .0..0.. 0.0... 22

United States v. Scheffer, 523 U.S. 303 (1998) .......0......... 23

Wardius v. Oregon, 412 U.S. 470 (1973) .000000..00c cece. 20

Vili

TABLE OF AUTHORITIES -— Continued

Page

Washington v. Texas, 338 U.S. 14 (1967) .................... 14, 22

Wedd v. Texas, 409 U.S. GS (1G7B) .........c00ccceceecesccccecsesceeses 14

FEDERAL CIRCUIT COURT CASES

Neely v. Newton, 149 F.3d 1074 (10th Cir. 1998).............. 34

United States v. Garcia, 94 F.3d 57 (2d Cir. 1996)............ 36

United States v. Greene, 489 F.2d 1145 (D.C. Cir.

ail sinissistsenhchcidbagiaibiclnesibiiadaccippsthabastisiaabaiataibetiiibieainiuiibbiaicuainaad 41

United States v. McBroom, 124 F.3d 533 (3d Cir.

STU acicihicccniiianbsidicelescstiusionisainandtsdbespeabidadiehinsielbasieiadiaitiiiiabdasinjanliainde 36

STATE CASES

Bates v. State, 386 A.2d 1139 (Del. 1978).......................... 48

Bennett v. Commonwealth, 511 S.E.2d 439 (Va. Ct.

FE, Fa nici certtiiecnsrintssinesungveniiinisiaiicnmmatibncnnntes 38

Bethea v. United States, 365 A.2d 64 (D.C. 1976)............. 38

Commonwealth v. McHoul, 226 N.E.2d 556 (Mass

EIN RED ROD Fe wes ae acy SM MSE NSO OEE wo 38

Finger v. State, 27 P.3d 66 (Nev. 2001) ...........0....00002. 38, 41

Ingles v. People, 92 Colo. 518, 22 P.2d 1109 (Colo.

es ecicinibsnindehinenigialathnbiessiiaintipaaindisebaghisninniilid ttatendiitieesdasicninie 41

Roundtree v. State, 568 So.2d 1173 (Miss. 1990).............. 38

Sanders v. State, 585 A.2d 117 (Del.Super. 1990)............... 3

Sinclair v. State, 132 So. 581 (Miss. 1931) .............0......... 41

State v. Ball, 310 S.E.2d 516 (Ga. 1984)....0...00.000.00 eee. 48

State v. Grimm, 195 S.E.2d 637 (W.V. 1973)............00...0.. 38

TABLE OF AUTHORITIES — Continued

Page

State v. Herrera, 895 P.2d 359 (Ut. 1995) ............. 35, 45, 49

State v. Hurst, 594 N.W.2d 303 (Neb. Ct. App. 1999)....... 38

State v. Johnson, 399 A.2d 469 (R.1. 1979) .....0.. eee 38

State v. Jones, 359 So.2d 95 (La. 1978)... cece ceee seen 48

State v. Korell, 690 P.2d 992 (Mont. 1984)... 45

State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997) ....passim

State v. Ovind, 186 Ariz. 475, 924 P.2d 479 (App.

Ie ircdesensthlinchctiancessablicssinitbadadaiaitsilaitapinclscdmaidaniaeasatadiaiiciniiesipsiaiad 24

State v. Pike, 49 N.H. 399 (1869) ...............ccccssessersereecceees 39

State v. Schantz, 98 Ariz. 200, 403 P.2d 521 (1965).... 24, 36

State v. Searcy, 798 P.2d 914 (Idaho 1990)................. 45, 49

State v. Staten, 616 S.E.2d 650 (N.C. Ct. App. 2005)....... 38

State v. Strasburg, 110 P. 1020 (Wa. 1910)........0...000000..... 40

State v. Tamplin, 195 Ariz. 246, 986 P.2d 914 (App.

TEND iecciesteindiciapsteleichdlilnisictidibisaaidiataicaitiiaittinttilinctiasiciaitiigaid aia 32, 33

State v. White, 270 P.2d 727 (N.M. 1954).......00.000.......c00. 38

State v. Wilcox, 70 Ohio St.2d 182, 436 N.E.2d 523

LESSEE LEAD ea bo Dette TIE reer ae 8) DONO Tree 48

MISCELLANEOUS CASE AUTHORITY

Beverley’s Case, 76 Eng. Rep. 1118 (1603) ........................ 35

M’Naghten’s Case, The House of Lords, 10 Clark &

Fin. 200, 8 Eng. Rep. 718 (1843).................. eee passim

Rex v. Arnold, 16 Howell St. Tr. 695 (1724)... 35

Reniger v. Feogossa, 1 Plow. 1, 75 Eng. Rep. 1

RR EI PERE AE Ra oe VE 27

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

LITA ARAL AAI A AOFM ONT 1, 34

STATUTES

ae MEPs UAE cidiicvniniensctiivntiidantndsdpiunipendoennbeiaaeniaianiinndapiesds 38

Sees OF Se tanisnnseditianiseneibuindedebcdbapiebniminttinabitiinastiibin 1

I i is saiediiiablobaadencmisiabiiels 37

Be cis eainhinatnsaauccsnteniiicnsnnsssditidaieneiiatin 37

Ariz. Rev. Stat. § 13-204(A) (1978)..........ccsesseerereeeeesenes 25

Ariz. Rev. Stat. § 13-502(A) (1996).............cceeeeee. 2, 10, 32

Ariz. Rev. Stat. § 13-502(D) (1996)................cssssessereeeseees 24

SE: Se, CE, Se CIEE hecoiintinbodeceoibindeidénibienendnnidéeensininnain 24

is ne SI Ot isan ona isla seicreedunbenbil 24

es cnt sb cen ctenibctvtnnetanepugncessinitaniosiions 24

Ariz. Rev. Stat. § 13-1105(A)(3) (1996)... 1, 2,14

Fe Fe is NE nnintncicsesctnacisssenpininecsndnacesiainemsctocsnn 7

I FI crtnsicenitisinciipsecutsnbiiitinaoabbademanianl 38

So Se I ipteittdilintidancatinrecictinesitinnsesceabnctianinens 37

Rs TN, TS, ie I setncccccnnrnscrccsvaiiecasusteetesesnns 38

Sees, GO, Tl em I in cal sisdecsnedoesianee 48

OR FRSA aeRO Nr HEME OT 48

Ss Ss ANIA AN AI Witsbeheccischandiicendsibatinevtanntisehnisiisasiadinn 37

i aI Oh ict iidecths sis uccclimcbacuppisogs iehaiaddlicein 48

RS EK 8 RE Rie een ee Pen eA ene RD 48

TABLE OF AUTHORITIES — Continued

Page

Ge. COGS Ram. § TFT ABAD sceeses scosccossosesessenssesssossocsses 48

Ga. Code Ann. § 17-7-131(CX2)............csccccccccccssessessessseerees 48

Haw. Rev. Stat. Ann. § 704-400.......................0cc000secceeeeees 38

720 Ill. Comp. Stat. Ann. 5/6-2(a) ............seescecscerseesseeeeerees 38

TN EEE TOOT TARR ATE TREE 38

IIR, SE WI is icin casi cieesededasnenineensiidoeetecinniiels 37

Ky. Rev. Stat. Ann. § 504.020(1)............ccccecceccseeeseceseneeeeees 38

he TE RIEL: OE IENINED sadeteisinnsiidapndeomienstealecetcinboisécatsapiaes 48

Md. Code Ann., Crim. Proc. § 3-109.................cc0ccceeeecceeees 38

Sh, Dene Me. MUNIN, GOR, TARE Oe iivccccncctvcsorscssecceccccscciccnecss 38

Mich. Comp. Laws Ann. § 768.21a(1)...................:ccceeeceeees 38

I a 38

EE EE a ee 38

I 38

eee SE CHE Sr IID dcicuciscisisnicncnisduiehbdetilenipendosaninaheseounsiinns 38

ee is SE Oe Fei AN I sancccecsnepcnecsececorsenccsnspnnconerse 38

Ohio Rev. Code Ann. § 2901.01(A\(14) 0... 48

ee Hes is: iin Oe cn disncdcctinciesonsiasondisesencviibatedsibnton 38

I sla innapinonaieniviotediinds 38

ee I I isi iis css cnstasmplentiseisaninhions 38

Te I, i i deduaesin’ 38

Wash. Rev. Code Ann. § 9A.12.010.................:cccececeeeeeeeeees 38

A ie eR Gills, ts GI ech ctcnpnesdncsinidéancdccentedenssccnoiendontati 38

TABLE OF AUTHORITIES -— Continued

Page

Ae a A a ad 38

eS 5 | | ___—SLEnEET e e NOT ICEe 38

RULES OF COURT

Rule 11, Arizona Rules of Criminal Procedure ................... 7

TREATISES AND ARTICLES

John Biggs, Jr., THE GUILTY MIND: PSYCHIATRY AND

THE LAW OF FROMICIDG (1GGB)............cccccccccccccccccccccesccseses 30

Homer D. Crotty, The History of Insanity as a

Defence to Crime in English Criminal Law, 12

I tin, re TN i 30

J. Coleman, J. Butcher & R. Carson, ABNORMAL

PSYCHOLOGY AND MODERN LIFE (6th ed. 1980) ............... 3

Day & Semard, SCHIZOPHRENIC REACTIONS, THE

HARVARD GUIDE TO MODERN PSYCHIATRY 199 (A.

I 3

Rudolph Joseph Gerber, THE INSANITY DEFENSE

ERASER eas Pe NE OPIN MER ite ES NOS She Oe 34

Sheldon Glueck, MENTAL DISORDER AND THE CRIMI-

NAL LAW: A STuDY IN MEDICO-SOCIOLOGICAL JU-

ERE Ra a vn TORS 29, 30

1 SIR MATTHEW HALE, PLEAS OF THE CROWN 32

fF 8 RINT Ren Ge OC) POR Fy OE OREN MEN een DDE MD 27

1 SERGEANT WILLIAM HAWKINS, A TREATISE OF THE

PLEAS OF THE CROWN: OR, A SYSTEM OF THE PRIN-

CIPAL MATTERS RELATING TO THAT SUBJECT, DI-

GESTED UNDER THEIR PROPER HEADS 1 (5th ed.

xill

TABLE OF AUTHORITIES — Continued

Page

A.E. Dick Howard, THE ROAD FROM RUNNYMEDE:

MAGNA CARTA AND CONSTITUTIONALISM IN AMER-

ERT SEN ETN EY SN Cn OER 30

Edwin R. Keedy, Insanity and Criminal Responst-

bility, 30 HARV. L. REV. 535 (1917) ...........00000 ees 30

Edwin R. Keedy, A Problem of First Degree Murder:

Fisher v. United States, 99 U. Pa. L. REV. 267

RT disci niexbconnieiinisshheciscniaweieencleagiinaniisiialilatiiamiasindndisousadnrsiaenbiatans 30

Travis D. Lewin, Psychiatric Evidence in Criminal

Cases for Purposes Other Than the Defense of

Insanity, 26 SYRACUSE L. REV. 1051 (1975).................. 30

Norval Morris, The Criminal Responsibility of the

Mentally Ill, 33 SYRACUSE L. REV. 477 (1982)............... 28

Platt & Diamond, The Origins and Development of

the “Wild Beast” Concept of Mental Illness and Its

Relation to Theories of Criminal Responsibility, 1

BD; TEMP. BR. GCE. BOB (IDI ..ccniesnercvescsesssecsscovssssccnes 34

Rita J. Simon & David E. Aaronson, THE INSANITY

DEFENSE: A CRITICAL ASSESSMENT OF LAW AND

POL’ °Y IN THE POST-HINCKLEY ERA 39 (1988)............... 39

Jonas hobitscher & Andrew Ky Haynes, Jn Defense

of the Inccnity Defense, 31 Emory L.J. 9 (1982) ..... 34, 44

2 Sir JAMES FITZJAMES STEPHEN, A HISTORY OF THE

CRIMINAL LAW OF ENGLAND 165 (1883 ed.).................... 27

A.E. Taylor, INTRODUCTION, IN THE LAWS OF PLATO

GN EERE SAR cere ee CN eee 28

1 NIGEL WALKER, CRIME AND INSANITY IN ENGLAND

[THE HISTORICAL PERSPECTIVE] 26 (1968)...................:. 29

Henry Weihofen, MENTAL DISORDER AS A CRIMINAL

SN SII III dusicseccteicesteaeseunsencteussecionanes 30, 37

XIV

TABLE OF AUTHORITIES — Continued

Page

Henry Weihofen & Winfred Overholser, Mental

Disorder Affecting the Degree of a Crime, 56 YALE

a a ee 30

MISCELLANEOUS AUTHORITIES

AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE MEN-

TAL HEALTH STANDARDS 324 (1989)...............ccccccseeeeeeeees 34

ALI Model Penal Code, § 4.01 (1962)............ cece 38

ALI Model Penal Code, § 4.02(1) (1962) ........0... cece 24

OPINIONS BELOW

The Arizona Court of Appeals’ decision affirming

Petitioner Eric Clark’s conviction and sentence is unpub-

lished. State v. Clark, No. 1 CA-CR 03-0851 and 1 CA 03-

0985 (consolidated) (Ariz. App., Div. 1, January 25, 2005.)

(JA 336-54.) The Arizona Supreme Court’s order denying

discretionary review (JA 355) is also unpublished. State v.

Clark, No. CR 05-0047 PR (Ariz., May 25, 2005).

JURISDICTION

The petition for certiorari was filed on August 17,

2005 and granted on December 5, 2005. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Constitution, Amendment XIV provides in

pertinent part:

... [NJor ... shall any state deprive any person

of life, liberty, or property, without due process of

law...

Section 13-1105(A)(3) of the Arizona Revised Statutes

(1996) provides in pertinent part that a person commits

first-degree murder if;

Intending or knewing that the person’s conduct

will cause death to a law enforcement officer, the

person causes the death of a law enforcement of-

ficer who is in the line of duty.

Section 13-502(A) of the Arizona Revised Statutes

(1996) provides in pertinent part:

A. A person may be found guilty except insane

if at the time of the commission of the criminal

act the person was afflicted with a mental dis-

ease or defect of such severity that the person did

not know the criminal act was wrong. A mental

disease or defect constituting legal insanity is an

affirmative defense. .. .

STATEMENT OF THE CASE

On June 21, 2000, 17-year-old Eric Clark shot and

killed Flagstaff Police Officer Jeffrey Moritz. Eric was

charged with first-degree murder under A.R.S. § 13-

1105(A). The Indictment alleged that he “intentionally or

knowingly” caused the death of a police officer while in the

line of duty. (ROA-Doc 3.) After a bench trial, the Superior

Court convicted him of this offense and found that he had

not carried his burden of proving that he was “guilty

except insane” under ARS § 13-502. (JA 331-35.) (The

trial was conducted in two phases, the first to determine

guilt or innocence, the second to determine sanity. The

court’s findings on both issues were made at the conclusion

of the entire trial.) The Arizona Court of Appeals affirmed

Eric’s conviction and resulting sentence of life imprison-

ment, finding the prosecution’s evidence sufficient to

“support the conclusion that ... fhe] knowingly and

intentionally shot Moritz and knew that he was a police

officer when he did so” (JA 342) and that Eric “did not

prove by clear and convincing evidence that he was insane

pursuant to ARS § 13-502(A) at the time of the crime”

(JA 347). After the Arizona Supreme Court denied discre-

tionary review (JA 355), this Court granted certiorari.

A. The Facts

The tragic shooting death of Officer Moritz occurred at

4:51 a.m. He had responded in uniform in his marked

patrol car as a result of 911 calls from a residential

neighborhood complaining that a vehicle was continuously

driving around the block blaring loud music. The officer

located the vehicle (a pickup truck) and stopped it after

activating his emergency lights. About a minute after the

officer left the patrol vehicle there was an exchange of

gunfire. Officer Moritz was struck by a bullet that im-

paired two of the four major blood vessels serving his

brain and killed him. (JA 338-39.)

There was no dispute at trial that ric Clark was the

driver of the pickup truck and the person who shot Officer

Moritz. There was also no dispute that at the time of the

episode Eric was suffering from chronic paranoid schizo-

phrenia’ and was actively psychotic’. The prosecution

* “Schizophrenia is an extremely serious psychosis that is charac-

terized by grossly distorted perceptions of reality, a withdrawal from

social interaction, and a fragmentation of perceptions, thought, and

reality.” Sanders v. State, 585 A.2d 117, n. 2 (Del.Super. 1990) citing J.

Coleman, J. Butcher & R. Carson, ABNORMAL PSYCHOLOGY AND MODERN

Lire 395 (6th ed. 1980). “Hallucinations, delusions, nonsensical speech,

violent or self-destructive behavior, and a loss of motor control are all

common symptoms.” /d. citing Day & Semard, SCHIZOPHRENIC REAC-

TIONS, THE HARVARD GUIDE TO MODERN PSYCHIATRY 199, 210-13 (A.

Nicholi ed. 1978).

* “IP|sychosis is a general term that describes an individual who

has gross disturbance in their reality testing and usually, that’s

manifested by a combination of delusions and hallucinations.” (RT

8/22/03 at 17-18; JA 15.)

conceded these facts (RT 8/27/03 at 33-34, 39, 48, 58/JA

302-03, 306, 313, 330-31); and the prosecution’s expert

forensic psychologist diagnosed it independently of, but in

conformity with, the defense expert psychiatrist (RT

8/26/03 at 39, 35, 38, 89-91, 94, 133, 163-64, 172-74/JA

132-33, 135-36, 179-81, 184, 219-20, 246-47, 254-57). The

trial judge found that:

“Both experts, all lay witnesses, and the attor-

neys agree that the Defendant suffers from a

qualifying mental disease: paranoid schizophre-

nia. The Defendant clearly began suffering from

this illness well before June 21, 2000 and suf-

fered from the illness at the time of shooting Of-

ficer Moritz.” (JA 332)

The Arizona Court of Appeals concurred (JA 345).

Until about a year and a half before the shooting, Eric

had been a healthy, well-adjusted teenager who got good

grades, excelled in sports, was popular and had no signifi-

cant problems at school or at home.’ After his illness

struck he began to have inexplicable mood swings and

episodes where with a strange look in his eyes he

screamed, or whispered audible gibberish.“ His alarmed

parents eventually had him arrested, taken to a juvenile

facility and transferred to a psychiatric hospital. He was

later released against medical advice.’ He developed the

velief that he was being poisoned, and that “They” were

* See, e.g., RT 8/20/03 at 9-11, 53-56, 61, 87-89, 133-34, 165-66, 180,

195, 214-15.

* See, e.g., RT 8/20/03 at 15, 17, 91-97, 113, 115, 182-86, 197; Day 8,

pp. 16-17.

* See, e.g., RT 8/20/03 at 97-100, 143-45, 202-08.

“after him.” He would not sleep in his bedroom but re-

treated into the small computer room in his home, where

he tied up a fishing line with beads and wind chimes to

alert him to intrusion by invaders.’ He later returned to

his room but equipped it with the same alarm apparatus.

He began to leave the TV on all the time, “loud,” and he

turned up the car radio “real loud.”

Teachers and friends began to talk about his numer-

ous episodes of bizarre behavior; he became a friendless

loner; his vocabulary and even his physical appearance

noticeably changed.” He began to reveal his belief that the

Earth had been invaded by aliens, that Flagstaff was

populated by aliens, that the aliens were trying to capture

* See, e.g., RT 8/20/03 at 29, 101, 116, 135, 209, 210; RT 8/22/03 at

33, 38-39/JA 27-28, 31-32; RT 8/26/03 at 166, 170/JA 24-50, 253.

” See, e.g., RT 8/20/03 at 100-01, 211.

* See, eg, RT 8/21/03 at 6: “[W)hen he moved back into his

bedroom, he had taken eye hooks and screwed them in the walls,

crisscrossed all around his room, and had taken fishing line and had

strung fishing line crisscrossing all around his room through the eye

hooks, and then had taken craft beads and strung the craft beads

strategically on various points along this fishing line. He had taken

beverage glasses from the kitchen, and when he closed the door to his

room, would stack the beverage glasses ... in front of the door if you

were inside the room, and along the window sill so that if vou opened

the door, he had — he also had wind chimes on this string, the wind

chimes would ring, the beads would move, the glasses would fall... .”

See also RT 8/22/03 at 40/JA 33; RT 8/26/03 at 18, 166-67/JA 118-19,

249-50.

* See, e.g., RT 8/20/03 at 65, 92, 124; RT 8/22/03 at 39/JA 32-33.

* See, e.g, RT 8/20/03 at 23, 27-28, 177, 219-20.

" See, e.g., RT 8/20/03 at 61-62, 166-67, 182-83, 214-15; RT 8/21/03

at 68-69.

* See, e.g., RT 8/20/03 at 62-64, 166-67; RT 8/21/03 at 68-69.

and kill him, and that even his parents were aliens.” His

fear that the aliens would poison him was such that he

would not eat anything at home except food from sealed

packages. He started going to the Sizzler to eat because he

thought he would be safe from poisoning where the gen-

eral public ate."

For months prior to the shooting of Officer Moritz,

Eric’s parents tried to have him recommitted. His mother

repeatedly consulted a lawyer in efforts to have the county

attorney press charges so that he would be forced into

mental health counseling.” During the two days before the

shooting Eric’s parents called at least five facilities and

twice contacted the lawyer’s office, “frantic, basically, and

said I had to see you that day and Eric was deteriorating

so fast that I had to figure out a way to get him some

help.” The prosecution’s expert witness testified at trial

that, had it not been for the shooting and its aftermath,

“I think his family probably would have been

able to keep him at a higher level of functioning.

They probably would have gotten the courts in-

volved. The courts probably would have had him

institutionalized against his wishes because he

was a danger to himself. And, hopefully, some

* See, e.g., RT 8/20/03 at 110-12, 131-32, 136, 226-27; RT 8/22/03 at

25, 29, 32, 38-39, 47-48, 55, 72-73/JA 21, 24, 26-27, 31-32,

38-40, 45, 60-61; RT 8/26/03 at 19-21, 103-09, 136-37, 142, 166-70,

172-73, 179-80/JA 119-21, 192-97, 222-23, 227-28, 249-53, 255-56, 261-

62.

* See, e.g., RT 8/20/03 at 101, 107-08, 130; RT 8/26/03 at 136-37,

158/JA 222-23, 242.

* See, e.g., RT 8/20/03 at 221-25, 232-34.

* RT 8/20/03 at 225-26. Regarding the calls to the medical facili-

ties, see the discussion of the phone records (id. at 232-34).

higher level of functioning could have been pre-

served.” (RT 8/26/03 at 201/JA 280.)

Instead, Eric shot and killed Officer Moritz in the early

morning of June 21, 2000.

B. The Proceedings Below

Eric was initially found incompetent to stand trial,

civilly committed, and was hospitalized for nearly three

years before his competency was restored.” When the

prosecution resumed, Eric’s attorneys sought to present

evidence of his mental illness for two purposes: (1) to cast

doubt on the prosecution's proof that Eric intentionally or

knowingly killed a police officer (ROA-Doc 362: RT 8/5/03

at 16-18); and (2) to establish the affirmative defense of

insanity (“Guilty Except Insane” (hereafter, “GEI”]) under

ARS § 13-502. (ROA-Doc 257; RT 8/5/03 at 16-18). The

" Immediately after Eric’s arrest he was determined in separate

mental-health proceedings (before a different trial judge) to be suffering

from psychosis and paranoid schizophrenia and therefore gravely

disabled and a danger to himself and others. As a result of that

proceeding (pursuant to Title 36 of the Arizona Revised Statutes), he

was committed to the Arizona State Hospital for treatment. (Cause MH

2000-0080, RT 9/19/00 at 124-27.) He was also determined by the trial

judge, in separate proceedings pursuant to Rule 11 of the Arizona Rules

of Criminal Procedure, to be incompetent to stand trial] and was further

committed to the Arizona State Hospital for treatment and restoration

to competency — a course of treatment that took almost three years.

(ROA-Does 16, 18, 156-57, 253; RT 3/28/01 at 2-6, RT 8/8/01 at 2-3, RT

6/26/02, 7/10/02, 7/11/02.) Ultimately, he was determined to be compe-

tent and was tried to the court without a jury. (ROA-Docs 304-05, RT

5/8/03 at 2-3; RT 7/28/03 at 2-11.) The parties stipulated that the court

could consider all previous mental-health testimony including that

before the court in the competency and Title 36 proceedings, al] of

which were part of the record on direct appeal. (See, ROA-Doc 358;

Anzona Court of Appeals Order dated 1/28/04.)

trial court requested briefing by the parties of the legal

issues raised by the potential use of Eric’s mental-illness

evidence. (ROA-Doc 373.)

The prosecution informed the court that in State v.

Mott, 187 Ariz. 536, 931 P2d 1046 (1997), the Arizona

Supreme Court had “held that the insanity test is the sole

standard for criminal responsibility in Arizona” and

“specifically rejected the argument that evidence of dimin-

ished capacity could be presented to negate intent or

knowledge.” (ROA-Doc 376 at 2.) The government asserted

that “[iJn the instant case, defendant is attempting to

present evidence of his purported delusions to negate the

mental state of intending or knowing required under

ARS § 13-1105(A\(3) .. . [and sJuch evidence would be that

of diminished capacity which is not permissible under

Arizona law.” (Id. at 3.) It added that “Mott further held

that the Federal Constitution was not violated by the

exclusion of diminished capacity evidence.” (Id.)" Defense

* Mott involved a defendant’s contention that in a prosecution for

child abuse and felony first-degree murder, that she was entitled to

present “expert psychological testimony that as a battered woman, she

was unable to form the requisite mental state necessary for the

commission of the charged offenses” (187 Ariz. at 538, 931 P2d at

1048.) An intermediate state appellate court had sustained this

contention, “finding that the trial court's preclusion of defendant’s

proffered testimony regarding battered-woman syndrome violated due

process.” (187 Ariz. at 539, 931 P.2d at 1049.) The Arizona Supreme

Court recognized that Mott’s evidence of her “history of being battered

and of her limited intellectual ability was not offered as a defense to

excuse her crimes but rather as evidence to negate the mens rea

element of the crime.” (187 Ariz. at 540, 931 P.2d at 1050.) It held that

Arizona criminal defendants are not permitted to present “ ‘diminished

capacity’” evidence of this kind because the Arizona legislature's

enactment of an insanity defense with a particular definition of

exculpatory insanity — together with the legislature's failure to enact a

provision of the Model Penal Code which explicitly authorized a

(Continued on following page)

counsel’s response was that, notwithstanding the Mott

decision, the GEI statute and Mott prohibition violated.

Eric’s rights to present a complete defense and he was

preserving for appeal the contention that these limitations

violated his state and federal constitutional Due Process

rights. (ROA-Doc 374 at 2-3.) After considering these

submissions, the trial judge announced that:

(1) the court was bound by Mott to consider

Eric’s mental-illness evidence only insofar as it

bore upon the issue of whether Eric was GEI un-

der ARS § 13-502 and not for any other purpose;

(2) the court would receive any mental-health

evidence that Eric’s lawyers wished to present,

since (a) most or all of the same evidence forbid-

den by Mott was also relevant to the GEI de-

fense, and (b) since the judge was the fact finder

he could separate proper from improper uses of

the evidence avoiding prejudice to the prosecu-

tion;

(3) the court would allow the defense to make

additional evidentiary offers of proof at the end

of the trial; and

(4) all evidence proffered during trial would be

preserved for any challenge to Mott or the trial

judge’s reading of Mott on appeal.”

defendant's proof of mental disorder to prove that s/he did not have a

mental state that is an element of an offense (see note 29 infra) - mani-

fested an intent to preclude such evidence (187 Ariz. at 540-41, 931 P2d at

1050-51), and that the preclusion does not violate defendants’ federa] Due

Process nights (187 Ariz. at 541-42, 931 P.2d at 1051-52).

* See RT 8/18/03 at 5-6/JA 6-7:

“THE COURT: What I have intended or what I'm going to

do after reading al] the Mott case is - and recognizing that

(Continued on following page)

Under Arizona law the standard for determining

whether a defendant is insane is whether s/he is afflicted

by a qualifying illness and as a result “did not know the

criminal act was wrong.” ARS § 13-502(A). Applying this

standard to the evidence,” the trial judge found that Eric

was guilty of first-degree murder as charged since he had

not proven his affirmative defense of GE]. (ROA-Doc 392/

JA 331-35.) By a post-trial motion to vacate, Eric renewed

his federal Due Process challenges to the narrowness of

the GEI standard (ROA-Doc 406 at 5-7), and to the refusal

much of the evidence that you're going to be submitting, in

fact all of it, as far as | know, .. . that has to do with the in-

sanity could also arguably be made along the lines of the

Mott issues as to form and {sic} intent and his capacity for

the intent. I'm going to let you go ahead and get all that

stuff in because it goes to the insanity issue and because

we're not in front of a jury. At the end, I'll let you make an

offer of proof as to the intent, the Mott issues, but I still

think the supreme court decision is the law of the land in

this state.... I will certainly allow you to preserve the is-

sue; you can argue or not argue, but you can make an offer

of proof at the conclusion of the case, but I don’t think it’s

the law of the land at this point. And then at least that pre-

serves it on appeal if something happens later on down the

road. But right now I’m bound by the supreme court deci-

sion in Mott and we will be focusing, as far as I’m con-

cerned, strictly on the insanity defense.”

* Portions of the evidence are quoted or summarized later in this

brief in connection with the specific issues to which they are relevant.

Because the evidence presented at the trial and the other materials in

the record (see note 17 supra) were sufficient to frame the issues for

appellate review court on the limited factual issues the tria] court held

it could consider under ARS § 13-502 and Mott, defense counsel made

no additional “offer of proof” (see note 19 supra) at the conclusion of

the case but preserved Eric's legal contentions by asking the court to

consider all of the evidence presented in determining whether the state

had proved its case and also by filing a motion to vacate judgment and

sentence that cited the federal constitutional authorities and prece-

dents (RT 8/27/03 at 4-6; ROA-Doc 406 at 5-10.)

of the trial judge to consider his evidence of mental illness

in deciding whether the prosecution had proved the mens

rea elements of first-degree murder (Id. at 7-10). He raised

the same federal contentions on appeal, and the Arizona

Court of Appeals rejected them on the merits. (JA 347-50,

351-53.)

SUMMARY OF THE ARGUMENT

I.A. Putting broader issues aside, the manner in

which Arizona’s rules governing the consideration of a

criminal defendant’s evidence of mental illness were

applied at Eric Clark’s trial to deny him any semblance of

a fair proceeding. The prosecution was permitted to prove

mental elements of the offense by urging that they could

be inferred from Eric’s behavior, while Eric was not per-

mitted to contest those factual inferences by urging that

his mental illness provided alternative explanations for

the same behavior. This was a violation of his Due Process

right to dispute the prosecution’s case in an adversarial

trial of the facts.

I.B. Even if the prosecution had not proved inferen-

tially the mental elements of the crime charged. Eric could

not fairly be precluded from relying upon evidence of his

severe mental illness to cast doubt upon the prosecution's

proof of mens rea. If a State makes certain conduct crimi-

nal only when it is performed with a specific state of mind,

it cannot deny defendants the right to argue to a trier of

fact that their mental impairments prevented them from

actually, subjectively having the culpable state of mind.

Categorical exclusion of reliable mental-health evidence

pertinent to statutorily defined mens rea issues cannot

plausibly be justified as a redefinition of the crimes ren-

dering those issues irrelevant. It is instead an arbitrary

exclusionary rule of evidence that interferes with defen-

dants’ rights to present a complete defense, and offends

procedural Due Process.

1.C. If viewed alternatively as a substantive redefini-

tion of all the mens rea elements in a State’s criminal code,

this type of categorical exclusionary rule would be so

irrational as to violate substantive Due Process. A state

cannot consistent with Due Process define crimes as a

physical act committed by a normal person if (but only if)

s/he has a culpable state of mind and simultaneously

punish acts committed by a psychotic person lacking any

coherent state of mind. Such a criminal regulation that

punishes the mentally ill without the requisite mens rea is

abhorrent to traditional, fundamental Anglo-American

principles of ordered liberty.

Il. Historical and contemporary notions of the

necessary conditions for just criminal punishment also

restrict a State’s power to abrogate the core features of the

immemorial insanity defense recognized in the Anglo-

American tradition and reflective of the principle that our

culture does not impose serious criminal liability in the

absence of some degree of fault. To punish people who are

too sick to know what they are doing represents an unac-

ceptable break with that tradition. Arizona’s abolishment

of a significant aspect of the deeply rooted M’Naghten test

violates Due Process.

Ill. Arizona has both cut the core out of the histori-

cal Anglo-American insanity defense and simultaneously

denied defendants the ability to counter the prosecution's

proof of mens rea with evidence of mental illness. This

combination of exclusionary rules goes beyond all reason-

able Due Process bounds.

ARGUMENT

I. ERIC WAS DENIED DUE PROCESS WHEN THE

TRIAL COURT REFUSED TO CONSIDER EVI-

DENCE OF HIS SEVERE MENTAL ILLNESS IN

DETERMINING FACTUALLY WHETHER THE

PROSECUTION PROVED THE MENTAL ELE-

MENTS OF THE CRIME CHARGED

A. Foreclosing Eric from Refuting the Infer-

ences on Which the Prosecution Relied to

Prove the Mental States at Issue Violated

His Due Process Right to Contest Guilt at a

Fair Trial of the Facts.

The following two subsections of this brief explain

why Arizona's prohibition of “diminished capacity” evi-

dence by criminal defendants violates both procedural and

substantive Due Process. However, the Court need not

reach those issues to decide the present case. Here, the

prosecution was permitted to argue to the trier of fact that

mental states which were necessary elements of the crime

charged against Eric Clark could be inferred factually

from FEric’s behavior; and then Arizona law was applied to

preclude Eric from contending that those factual inferences

should not be drawn because the behavior was explain-

able, instead, as a manifestation of his chronic paranoid

schizophrenia. Such an extension of the-Arizona ban

plainly denied Eric “the mght to present a defense, {-] the

right to present the defendant's version of the facts as well as

the prosecution’s to the . . . [trier] so it may decide where the

truth lies ... [— which] is a fundamental element of due

process of law.’” Webb v. Texas, 409 U.S. 95, 98 (1972),

quoting Washington v. Texas, 388 U.S. 14, 19 (1967); see,

e.g., In re Oliver, 333 U.S. 257, 273 (1948); Cole v. Arkan-

sas, 333 U.S. 196, 201 (1948); Goss v. Lopez, 419 U.S. 565,

579 (1975), quoting Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950); Baldwin v. Hale, 1

Wall. (68 U.S.) 223, 233 (1863).

The first-degree murder charge against Eric was

“based exclusively on ARS § 13-1105(A)(3), which defines

the crime as the act of causing the death of a law enforce-

ment officer in the line of duty, “[iJntending or knowing

that ... [one’s] conduct will cause death to a law enforce-

ment officer.” The prosecution undertook to prove that Eric

knew that Officer Moritz was a police officer through

several lines of factual inference. One stressed by the

prosecutor in his opening and closing arguments was an

“ambush” theory — that by driving 22 times around a block

in a residential neighborhood before dawn with the truck

radio blari.ig, Eric was “luring” police to the scene so that

he could kill an officer who responded to the inevitable

-ealls of disturbed residents.” A second line of inference,

** Opening Statement by Prosecuting At‘orney Powell:

“At approximately 4:30 a.m. police dispatch began receiving

9-1-1 calls from the University He ghts area. The calls were

complaining of a vehicle which was continuously driving

around University Heights area with extremely loud music

playing. Some people complained that it had been going on

for approximately an hour. Some people complained that it

had been doing laps. One person who will testify even testi-

fied that he counted the vehicle going around in a lap 22

times.” (RT 8/5/03 at 15.)

“ .. [H]e lured Officer Moritz to him, by driving around in

circles for a minimum of 22 times, and got out of his car, and

the ambush was on and Jeff Moritz was killed.” (Id.)

(Continued on following page)

asserted by the prosecutor to both strengthen and com-

plement the first line, was that Eric had made statements

on occasions prior to the crime indicating that he was

angry with police officers and wanted to kill one.” Both of

these lines of factual inference were cited by the trial

judge in support of his finding that Eric was guilty of the

crime charged.” Both inferences were cited by the Arizona

Closing Statement by Prosecuting Attorney Powell:

“We know all of the facts of him driving around from sometime

\sic] probably before 4:00 a.m. ... until at least 4:50 when Offi-

cer Moritz is killed. We know he’s blasting the music. He does

the route in that one area of University Heights 22 times....

Officer Montz comes up.... We know he exited the vehicle. . . .

We know he's ambushed.” (RT 8/27/03 at 50/JA 314-15.)

* Opening Statement by Prosecuting Attorney Powell:

“And I'd like to leave the Court with one final thought. One -

approximately one week before this incident, this murder, the

defendant walked up to some individuals at a place called

Thorpe Park.... The defendant walked up and made some

unusual comments to them. You'll hear from two of these indi-

viduals this week. His comment was, | think it would be -

something to the affect [sic] of, ] think it would be cool if I went

up on the hill and fired my .22 handgun - and please remem-

ber, Officer Moritz was killed with a .22 handgun - fired it into

the air until the police came and | would taunt them until they

came for me and then as they came for me, I would shoot them

in the head with a .22 rifle. That’s what he said one week be-

fore he lured Officer Moritz to him... .” (RT 8/5/03 at 15.)

Closing Statement by Prosecuting Attorney Powell:

“limmediately following the passage quoted in the preceding

footnote, about Eric’s doing the route “22 times” while

“blasting the music”) And it makes me think back to Thorpe

Park, Judge, just what he said he was going to do, he was

going to taunt the police officer and he was going to kill him

with his .22.” (RT 8/27/03 at 50/JA 314-15.)

~ “The Court considered the following evidence:

“e Defendant's statements at Thorpe Park to Jason

Tackett and Mark Fields;

(Continued on following page)

Court of Appeals in its decision upholding the sufficiency

of the evidence to support the conviction.”

In the case of a mentally unimpaired person, the

inferences urged by the prosecution and drawn by the

courts below would be very strong, perhaps compelling.

But Eric presented mental-illness evidence that might

well have rendered those inferences unpersuasive — and

certainly unpersuasive beyond a reasonable doubt — if the

trial judge had not viewed himself as bound by Mott to

decline to consider the evidence for this purpose.

° Defendant's actions in driving through a residential

area early in the morning with loud music to attract

law enforcement. ...

eeeceo e808 68686 @

From all of this the Court must conclude that, while the Defendant was

affected by his mental illness, it did not, pursuant to the requirements

of the statute, distort his perception of reality so severely that he did

not know his actions were wrong. Accordingly, the Court finds the

Defendant guilty of the First Degree Murder of Officer Jeff Mortiz [sic].”

(Special Verdict at 4-5/JA 333-34.)

“ “Clark maintains that there was insufficient evidence to support

his conviction for first degree murder of a police officer. He rests this

argument on his claim that the state presented only circumstantial

evidence to show that he (1) intentionally or knowingly caused a death

and/or (2) that he intended or knew that he was killing a police

officer... .

“The evidence at trial established that Clark was angry with police

officers and fantasized about ways to retaliate or ‘show them,’ suggest-

ing a motive for his actions. It also showed that, in driving the pickup

truck with its radio blaring, Clark had engaged in behavior that would

attract law enforcement to the neighborhood. Clark was playing a ‘rap

CD’ at the time that contained ‘many antisocial attitudes’ and included

lyrics expressing violent attitudes toward police officers. .. .

“... All of this is sufficient evidence to support the inference that

Clark intentionally or knowingly shot Moritz.” (JA 341-44.)

The defense psychiatric expert testified that Eric was

suffering from paranoid schizophrenia at the time of the

crime (RT 8/22/03 at 36-38/JA 29-32); that paranoid

schizophrenics experience auditory hallucinations; and

that they are known to turn up the volume on radios and

TV’s in “an attempt to drown out the voices that they are

experiencing” (id. at 39/JA 32.) The prosecution expert

also “diagnosed ... [Eric] to have schizophrenia, paranoid

type.” (RT 8/26/03 ai 38/JA 136; see also, e.g., Id. at 35, 89-

91, 94, 133, 163-64, 172-74/JA 132-33, 179-82, 184, 219-20,

246-47, 254-57.) He stressed on redirect that no one knows

“what was going through the defendant’s head at the time

of the murder” (Id. at 175/JA 257); and gave the following

testimony on cross:

“Q@. We know that he was delusional as he drove

around and listened to this loud, pounding

music?

A. His delusions were present then, yes.

Yeah. Do you think that was for the purpose

of drowning out voices in his head?

A. That’s one theory. Well, actually, that was

the theory that was — I think his mother ex-

pressed about why he kept the television so

loud.

@. And your experience with schizophrenics

are, they often turn up TV’s loud, radios

loud to drown out the voices?

A. I have encountered that.” (Id. at 170/JA

253.)"

Accordingly, defense counsel argued in closing that “Dr. .

Morenz, Dr. Moran testified, many schizophrenics use

volume to turn [sic] out the voices.... Judge, its pretty

apparent Eric was doing just that, especially when you

look at this overall.” (RT 8/27/03 at 23/J.A. 295.) But under

the trial judge’s view of Mott, he could not consider this

evidence and argument as a basis for rejecting the prose-

cution’s contention that the intent to ambush Officer

Moritz could be inferred from Eric’s blaring CD player.

The defense expert also addressed the plausibility of

inferring that Eric had the requisite mens rea for convic-

tion via the prosecution's proposed “ambush” motive based

* On redirect examination by the prosecutor, the prosecution

expert gave this testimony:

“Q. ... I think at one point you had said you didn’t think

the circling behavior in the neighborhood of Univer-

sity Heights was prefatory conduct. Do you agree with

that today?

A. Yes. ] think that 1 wouldn’t agree with that. I think that

the theory that has the most support in my mind is that

he enticed the cop and so he was provoking a police ac-

tion. As I have said before, the alternative theory is that

he was in a paranoid state and so forth. We dont know

which of these two ts true, but my position is, it’s more

likely and more probable that he intended to shoot the

cop.” (Id. at 191/JA 272) (emphasis added).

Of course, had this testimony been considered by the trial judge on the

issue of Eric’s intent, it would have had to be evaluated under a burden-

of-proof rule requiring the prosecution to eliminate any reasonable

doubt regarding this choice of “theory,” not under the burden-of-proof

rule applicable to the issue of insanity under Arizona law — the only

issue for which the trial judge considered the mental-illness evidence —

a rule requiring that the defendant prove insanity by clear and

convincing evidence.

on evidence of Eric’s prior statements about taunting and

shooting a police officer.

“Q. ... Do you think based on, again, your train-

ing and experience as a psychiatrist, that

Eric was in any way trying to — preparing or

trying to create an ambush to kill this police

officer?

A. I can’t imagine that.

Why not?

» ©

Eric’s behaviors were just — there wasn't

much purpose or, you know, didn’t seem

there was much rhyme or reason to his be-

haviors. You know, he was continually a

surprise to his parents. They didn’t know

what he was going to do next, which is what

they were so concerned about and why they

wanted him in the hospital, you know, he

wasn't functioning in school, you know, he

really wasn’t functioning at all.

To hypothesize that he was sort of plan-

ning, you know, kind of a scheme to lure po-

lice I think is a bit of a stretch. I have

trouble imagining that... .” (RT 8/22/03 at

46-47/JA 37-39.)

“Q. ... Based on your experience and your re-

view of the evidence, was Eric even at that

time [referring to the time of Eric's weeks-

old statements which the prosecution urged

and the trial judge found supported an “am-

bush” theory] capable in your mind of plan-

ning several weeks in advance what was

going to happen?

4. Oh, no.” (1d. at 112/JA 95.)

But again the trial judge’s view of Mott, while allowing

him to infer an “ambush” motive (and therefore intent and

knowledge) from Eric’s prior statements, precluded him

from considering whether Eric’s mental illness cast a

reasonable doubt upon that inference.

A trial of factual issues crucial to the determination of

guilt or innocence under a State’s criminal law cannot be

conducted in such a fashion without violating the first

principles of due process. This Court has held time and

again that when the prosecution at a criminal] trial asks

the trier to infer facts on which its case depends, the

defendant cannot constitutionally be foreclosed from

responding with evidence and argument that factually

throws the inference into doubt. Kelly v. South Carolina,

534 U.S. 246, 248, 252 (2002); Shafer v. South Carolina,

532 U.S. 36 (2001); Rock v. Arkansas, 483 U.S. 44, 51-55

(1987); Crane v. Kentucky, 476 U.S. 683, 689-91 (1986);

Skipper v. South Carolina, 476 U.S. 1, 5 n. 1 (1986); and

see, e.g., Ake v. Oklahoma, 470 U.S. 68, 76, 80, 83-84

(1985); Gardner v. Florida, 430 U.S. 349, 362 (1977)

(plurality opinion); Wardius v. Oregon, 412 U.S. 470, 474-

76 (1973); Specht yv. Patterson, 386 U.S. 605, 610 (1967).

The several prevailing opinions in Simmons v. South

Carolina, 512 U.S. 154 (1994), sufficiently exemplify the

principle — although in the context of a capital sentencing

trial rather than a guilt trial. There, Justice Blackmun’s

lead opinion found it elementary that:

“if the State rests its case for imposing the death

penalty at least in part on the premise that the

defendant will be dangerous in the future, the fact

that the alternative sentence to death is life with-

out parole will necessarily undercut the State's ar-

gument regarding the threat the defendant poses

to society. Because truthful information of parole

ineligibility allows the defendant to ‘deny or ex-

plain’ the showing of future dangerousness, due

process plainly requires that he be allowed to

bring it to the jury’s attention by way of argu-

ment by defense counsel or an instruction from

the court.” (/d. at 168-169.)

Justice Ginsburg explained that when the prosecution makes

a factual argument central to its case, “the defendant’s right

to be heard means that he must be afforded an opportunity

to rebut the argument.” (/d. at 174.) And Justice O’Connor,

concurring for herself and Justice Kennedy and Chief Justice

Rehnquist, added that “one of the hallmarks of due process

in our adversary system is the defendant’s ability to meet the

State's case against him.” (/d. at 175.)

Any of these axiomatic statements of Due Process law

provides a sufficient basis for deciding Eric Clark’s case on

the present record. To do other than reverse his conviction

would set them all at naught.

B. The Mott Rule Prohibiting Consideration of

Evidence of Mental Illness on the Issue of

Mens Rea _ Unconstitutionally Excludes

Probative Exculpatory Evidence. Foreclos-

ing Eric from Demonstrating Factually that

He Did Not - Because He Could Not - Pos-

sess the Mental States Which Were Ele-

ments of the Crime Charged Denied Him

the Right to Present a Defense Basic to

Procedural Due Process.

Even had the prosecution not affirmatively sought

and obtained Eric’s conviction on the basis of factual infer-

ences regarding his state of mind, that he was denied the

opportunity to refute, the trial court’s refusal to consider his

mental-illness evidence as bearing on the statutorily defined

mental elements of the crime for which he was on trial

violated procedural Due Process. The trial court’s refusal to

consider Eric's mental-illness evidence as bearing on the

statutorily defined mental elements of the crime for which he

was on trial violated procedural Due Process because

“{w|hether rooted directly in the Due Process Clause of the

Fourteenth Amendment, Chambers v. Mississippi, ... [420

U.S. 284 (1973)], or in the Compulsory Process or Confronta-

tion clauses of the Sixth Amendment, Washington v. Texas,

388 U.S. 14, 23, ... (1967); Davis v. Alaska, 415 U.S. 308

(1974), the Constitution guarantees criminal defendants ‘a

meaningful opportunity to present a complete defense.”

Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting Trom-

betta v. California, 467 U.S. 479, 485 (1984). This night

includes the opportunity to contest the existence of any fact

that must be found by the trier in order to convict. See, e.g.,

Rock v. Arkansas, 483 U.S. 44 (1987); Olden v. Kentucky, 488

U.S. 227 (1988).

Here, the trial court held that under the Mott rule it

was obliged to find as a fact that Eric knew he was shoot-

ing a police officer to death — a necessary factual element

of the only form of first degree murder charged against

Eric — while simultaneously refusing to consider Eric's

evidence that an acute episode of his chronic paranoid

schizophrenic illness prevented him from actually having

that knowledge. In this situation, the “question of charac-

terization” that Justice Ginsburg described as dividing the

Court in Montana v. Egelhoff, 518 U.S. 37, 56-57 (1996),

vanishes. The Mott rule can only be characterized as “a

rule designed to keep out ‘relevant exculpatory evidence’”™”

“ Petitioner concedes that the right to present exculpatory

evidence is not absolute. Montana v. Egelhoff, 518 U.S. 37, 53 (1996).

(Continued on foilowing page)

(id. at 57 [Justice Ginsburg quoting Justice O’Connor’s

dissenting opinion for four Justices id. at 67]) and there-

fore one that “offends due process.” (id. at 57)

The Mott Rule cannot be saved on the theory that it

constitutes “a redefinition of the mental-state element of

the offense’ (‘d.). A majority of this Court could plausibly

conclude that the Montana legislature in Egelhoff had

essentially enacted alternative substantive criminal

provisions punishing anyone who either (1) purposely or

knowingly kills another person when sober or (2) voluntar-

ily gets so drunk that s/he is capable of killing another

person without knowing it. (See, 518 U.S. at 57-58.)

However, no one could plausibly attribute to the Arizona

legislature an intention to create alternative substantive

offenses punishing equally (1) a mentally sound individual

who kills an on-duty police officer if (but only if) s/he does

so intentionally or knowingly, and (2) a mentally ill person

who is involuntarily bereft of the cognitive ability to

understand that the death of an on-duty police officer will

be the consequence of his or her actions.” Plainly, the Mott

ban on mental-illness evidence is not based on such a

However, exclusion of exculpatory evidence is unconstitutional where it

has “infringed on the weighty interest of the accused.” United States v.

Scheffer, 523 U.S. 303, 308 (1998). “In the absence of any valid state

justification, exclusion of this kind of exculpatory evidence deprives a

defendant of the basic right to have the prosecutor's case encounter and

survive the crucible of meaningful adversarial testing.” Crane v.

Kentucky, 476 U.S. 683, 690-91 (1986). As discussed herein (see Note

t8,-supra_and Note 29 infra with accompanying text) Arizona has

advanced no valid reason for precluding consideration of this type of

probative exculpatory evidence.

* We will demonstrate in the following subsection that a substan-

tive criminal statute treating these two situations as involving equiva-

lent culpability would be sv irrational and historically aberrant as to

violate substantive due process.

bizarre substantive equation.” If it reflects anything other

than the Mott majority’s mechanistic application of the

expressio-unius/exclusio-alterius maxim to Arizona's

criminal code,” it must be grounded on the notion that

mental-illness evidence, as a class, is too beguiling or too

controversial to permit it to be used in the way that any

other sort of evidence of ignorance or mistake could be

* As Justice Souter wrote for four members of the Court in Schad

v. Arizona, 501 U.S. 624, 643 (1991), “lil/f ... two mental states are

supposed to be equivalent means to satisfy the mens rea element of a

single offense, they must reasonably reflect notions of equivalent

blameworthiness or culpability. . . .”

* The Mott court's explicit rationale for holding that “expert

testimony regarding a defendant’s mental capacity is [not] admissible to

challenge the requisite mental state of a challenged crime” (187 Ariz. at

544, 931 P.2d at 1054) was (1) that “Arizona’s criminal code was based

on the Model Penal Code” (187 Ariz. at 540, 931 P.2d at 1050) but did

not include § 4.02(1) the provision that “allowed the admission of

‘{elvidence that the defendant suffered from a mental disease or defect

... whenever it [wa]s relevant to prove that the defendant did or did not

have a state of mind that is an element of the offense” (rd.); (2) that “(t]he

legislature’s decision not to adopt this section of the Model Penal Code

evidences its rejection of the use of psychological testimony to challenge

the mens rea element of a crime” (id.); and (3) that “[bjecause the

legislature has not provided for a diminished capacity defense, we have

since consistently refuse to allow psychiatric evidence to negate specific

intent” (187 Ariz. at 541, 931 P.2d at 1051). See also, State v. Schantz, 98

Ariz. 200, 210-13, 403 P.2d 521 (1965) where the Arizona supreme court

indicated that admitting evidence of mental illness to establish a

defendant “did not have a state of mind which is an element of the

offense” would force the jury into “releasing upon society many dangerous

criminals who obviously should be placed under confinement.” Under

Arizona law, however, a defendant found GEI is committed to a secured

mental health facility for the presumptive term (25 years in this case).

See, ARS § 13-502(D); State v. Ovind, 186 Ariz. 475, 924 P.2d 479 (App.

1996). Moreover, consideration of such evidence might equally lead to a

verdict of guilty of a less serious form of homicide with its attendant

mandatory prison term. See, ARS §§ 13-1102 to 1104. Although the

Anzona supreme court agreed that Model~Penal Code § 4.02(1) was

“desirable” it refused to adopt it “piecemeal.” 98 Ariz. at 213.

used, to “negate|] the culpable mental state required for

commission of ... [an] offense.”’ That supposed justifica-

tion for the rule brings it squarely into conflict with this

Court’s procedural Due Process holdings in Chambers and

Rock.

Fisher v. United States, 328 U.S. 463 (1946), does not

suggest otherwise. The sole issue considered by the Fisher

majority was whether Fisher's trial judge was obliged to

charge the jury affirmatively on Fisher’s theory of the

case, which was that his mental impairments negated the

premeditation requisite for a first-degree murder convic-

tion. The majority held that such affirmative instructions

could be refused without offending the Constitution or

exceeding the discretion allowed to the courts of the

District of Columbia because Fisher’s jury was instructed

on premeditation in terms that permitted it to consider his

evidence of intellectual and emotional deficiencies as ~

bearing on that issue.” It was not forbidden to take those

deficiencies into account in determining whether the

prosecution had proved premeditation beyond a reason-

able doubt. As the Fisher majority viewed the record,

Julius Fisher in 1944 got exactly the consideration of his

mental-illness evidence which Eric Clark is seeking in the

* See ARS § 13-204(A): “Ignorance or a mistaken belief as to a

matter of fact does not relieve a person of criminal liability unless: [} 1.

It negates the culpable mental state required for commission of the

offense... .”

" The jury in Fisher was instructed:

“It is further contended that even if sane and responsible,

there was no deliberate intent to kill, nor in fact any actual

intent to kill. Therefore if not guilty by reasons of :nsanity.

the defendant at most is guilty only of second degree mur-

der or manslaughter, accord as you may find he acted with

or without malice.” 328 U.S. at 467, n. 3

present case and which was denied below by the judge's

application of the Mott exclusionary rule.

C. If Arizona’s Evidentiary Prohibition is Con-

sidered Substantive, Foreclosing Eric From

Proving that Mental Illness Made Him In-

capable of Forming the Subjective Mens

Rea Elements of First-Degree Murder De-

nied Him Substantive Due Process.

Straining to characterize the trial judge’s application

of Mott in Eric’s case as a substantive “redefinition of the

mental-state element of the offense” would change the

constitutional analysis but would not produce a different

result. The Court justifiably gives great deference to state

legislative judgment in defining crimes and their elements

when challenged as violations of substantive Due Process.

E.g., Patterson v. New York, 432 U.S. 197, 201-02 (1977);

Powell v. Texas, 392 U.S. 514 (1968). But as it has recently

observed in another context, deference does not by defini-

tion preclude relief.”

The Due Process Clause imposes vital although

tolerant limits upon a State’s power to inflict severe

criminal sanctions in disregard of the fundamental Anglo-

American principle that crime is “generally constituted

only from concurrence of an evil-meaning mind with an

evil-doing hand.” Morissette v. United States, 342 U.S. 246,

251 (1952). When that principle is so blatantly affronted

as to offend “some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as

" Miller-El v. Dretke, 125 S. Ct. 2317, 2325 (2005), quoting Miller

El v. Cockrell, 537 U.S. 322, 340 (2003).

fundamental” (Snyder v. Massachusetts, 297 U.S. 91, 105

(1934)), the limits have been exceeded. E.g., Lambert v.

California, 355 U.S. 255 (1957); Robinson v. California,

370 U.S. 661 (1962).

It goes beyond these limits to make Moft into a rule

punishing with equal and extreme severity two individuals

— one, but only if when killing a police officer s/he knew

the officer’s identity and intended the officer’s death; the

other, because, in killing a police officer, s/he was suffering

a mental deran;tement which occluded that knowledge and

excluded that intent. It is one thing for a State to equate

voluntary intoxication with the usual mens rea elements of

a crime when an intoxicated person commits the actus as

in Montana v. Egelhoff. That is consistent with a view

deeply rooted in Anglo-American history that a person who

kills or harms another through ignorance brought on

“when he was drunk ... [and] had no understanding and

memory” shall “not be privileged thereby” because the

“ignorance was occasioned by his own act and folly, and he

might have avoided it.” But no such fault is involved in

Eric Clark’s affliction with chronic paranoid schizophrenia,

nor “might [he] have avoided” the ignorance of Officer

Moritz’s identity that resulted from his involuntary

medical condition.

It does not comport with the historical traditions that

defined the fundamental principles of justice known to the

* Reniger v. Feogossa, 1 Plow. 1, 19, 75 Eng. Rep. 1, 31 (Exch. Ch. -

1551); and see, e.g., 1 SIR MATTHEW HALE, PLEAS OF THE CROWN 32

(1800 ed.); 2 SIR JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL

LAW OF ENGLAND 165 (1883 ed.) (“The reason why ordinary drunken-

ness is no excuse for crime is that the offender did wrong in getting

drunk... .”).

Framers of the Due Process Clause to equate insanity with

the culpable mental states demanded of a sane person

charged with first-degree murder. To the contrary, evi-

dence of insanity had long been received to negate the

mens rea elements of crimes. “Until the nineteenth cen-

tury, criminal law doctrines of mens rea handled the entire

problem of the insanity defense. Evidence of mental] illness

was admitted on the question of intent, and, as the infant

discipline of psychiatry claimed an increased understand-

ing of mental processes, such evidence grew in impor-

tance.” Norval Morris, The Criminal Responsibility of the

Mentally Ill, 33 Syracuse L. Rev. 477, 500 (1982)." The

notion arose early in English criminal jurisprudence that

culpability depended upon intention conjoined with ac-

tion’; and this principle was linked from the outset with

the recognition that insane persons should not be crimi-

nally punished because they lacked culpable intent.

Bracton’s thirteenth-century treatise On the Laws and

Customs of England reflects the basis for this principle:

“

... [Flor a crime is not committed unless the

will to harm be present. Misdeeds are distin-

guished by both will and by intention [and theft

* See aiso id. at 501: “The pre-nineteenth century position was

correct and clear: the psychiatrist could contribute useful evidentiary

insights to the issues correctly defined by the common law of crime;

that is, did the accused intend the prohibited harm?”

“ The mens rea concept dates at least as far back as Plato's

attempts to construct an ideal criminal code. Plato rejected the then

prevailing view that differentiated crimes based upon whether they

were voluntary or involuntary and proposed a gradation of crimes based

upon levels of intent. Plato set forth a criminal code much like that of

modern jurisprudence that permitted defenses based upon insanity and

other forms of incapacity because they negated intent. A.E. Taylor,

INTRODUCTION, IN THE LAWS OF PLATO XLIX-1, 253-73 (trans. 1934).

is not committed without the thought of thiev-

ing]. And then there is what can be said about

the child and the madman, for the one is pro-

tected by his innocence of design, the other by

the misfortune of his deed. In misdeeds we look

to the will and not the outcome... ”

(Translated and quoted in 1 NIGEL WALKER, CRIME AND

INSANITY IN ENGLAND |THE HISTORICAL PERSPECTIVE] 26

(1968).

Coke gave the concept classic expression in his dictum

that “in criminal causes, as felonies, etc., the act and

wrong of a madman shall not be imputed to him, for that

in those causes, actus non facit reum, nisi mens sit rea.” 2

Coke on Littleton, 247b, quoted in Sheldon Glueck, MEN-

TAL DISORDER AND THE CRIMINAL LAW: A STUDY IN MEDICO-

SOCIOLOGICAL JURISPRUDENCE 130 (1927). Although later

commentators were to become preoccupied with develop-

ing and refining “arbitrary tests of irresponsibility, which

are only concerned with one element or one example of the

required total guilty intent” (id. at 131) — an enterprise

that led to the distinct legal doctrine of insanity and thence

to the M’Naghten formulation of that doctrine” — Coke

* The bracketed phrase may be a later interpolation into Bracton’s

text. Walker makes the observation that Bracton, unlike his Roman-law

sources, does not seem to be justifying leniency for the insane on the

ground that madness is punishment enough, but rather is expounding

the principle that “intention is all-important when it is a quest.on of

crime” (rd. at 26) and “it is clear that for Bracton madmen as well az

children were examples of offenders who lacked the intention necessary

for guilt” (id. at 27).

*” See 1 WALKER, supra, at 52-103. After the insanity doctrine took

shape as a distinct defense with its own defining rules, defense lawyers

appear to have less frequently proffered mental-health evidence as the

basis for a reasonable doubt that their clients had enterta:ned the mens

(Continued on following page)

himself reasoned from the basic premises of “the require-

ment of a ‘guilty intent’ as the basis of every crime and the

fact that disease or defect of mind negatives such intent.”

(id.) He “recognized the necessity of a guilty mind as the

basis of every crime, and agreed with Bracton that an

insane person can have no criminal intent.” (id.).” This

aspect of Coke’s thinking “greatly influenced the law of his

own day and later days.””

Justice Jackson described the transmission of this

tradition from seventeenth and eighteenth century English

rea elements of specific offenses. Two knowledgeable authorities on the

- subject have surmised that “(tJhe most probable reason would seem to

be that they have been distracted by the ‘tests’ of insanity, which

purport to be comprehensive and to cover the subject.” Henry Weihofen

& Winfred Overholser, Mental Disorder Affecting the Degree of a Crime,

56 YALE L. J. 959, 964 (1947). In the late nineteenth century and the

twentieth, increasing recourse to such evidence by defense attorneys

produced a mixed reaction from the courts, some of which now reasoned

that legislative codification of the special plea of “not guilty by reason of

insanity” had preempted the field. See id. at 965-68; Edwin R. Keedy, A

Problem of First Degree Murder: Fisher v. United States, 99 U. PA. L.

REV. 267, 272-77 (1950); Travis D. Lewin, Psychiatric Evidence in

Criminal Cases for Purposes Other Than the Defense of Insanity, 26

SYRACUSE L. REV. 1051 (19785).

* See also John Biggs, Jr., THE GUILTY MIND: PSYCHIATRY AND THE

LAW OF HOMICIDE 82-87 (1955); Henry Weihofen, MENTAL DISORDER AS

A CRIMINAL DEFENSE 53-54 (1954); Homer D. Crotty, The History of

Insanity as a Defence to Crime in English Criminal Law, 12 CALIF. L.

Rev. 105, 110 (1923); Edwin R. Keedy, Jnsanity and Criminal Responsi-

bility, 30 Harv. L. Rev. 535, 538-40 (1917).

* Biggs, supra note 38, at 86. As the Court has noted, Coke was

“widely recognized by the American colonists ‘as the greatest authority

of his time on the laws of England.’” Payton v. New York, 445 U.S. 573,

594 & n. 36 (1980), quoting A.E. Dick Howard, THE ROAD FROM

RUNNYMEDE: MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA 118-19

(1968).

jurisprudence to the colonies and then the States in

Morissette v. United States, 342 U.S. 246, 252 (1952):

“As the state codified the common law of crimes,

even if their enactments were silent on the sub-

ject, their courts assumed that ... intent was so

inherent in the idea of the offense that it re-

quired no statutory affirmation. Courts, with lit-

tle hesitation or division, found an implication of

the requirement as to offenses that were taken

over from the common law. The unanimity with

which they have adhered to the central thought

that wrongdoing must be conscious to be criminal

is emphasized by the variety, disparity and con-

fusion of their definitions of the requisite but

elusive mental element. However, courts of vari-

ous jurisdictions, and for the purposes of differ-

ent offenses, have devised working formulae, if

not scientific ones, for the instruction of juries

around such terms as ‘felonious intent,’ ‘criminal

intent,’ ‘malice aforethought,’ ‘guilty knowledge,’

‘fraudulent intent,’ ‘wilfulness,’ ‘scienter,’ to de-

note guilty knowledge, or ‘mens rea,’ to signify an

evil purpose or mental culpability. By use or

combination of these various tokens, they have |

sought to protect those who were not blamewor-

thy in mind from conviction of infamous common-

law crimes.”

Arizona acted in this tradition when, in making some

killings of police officers first-degree murders, it insisted

that those murders be distinguished from murders of the

second degree by a finding that the killer actually knew

s/he was taking a police officer's life and intended that

result. But the Arizona courts in Eric’s case broke radically

with the tradition when they held that he could be pun-

ished as though he had this knowledge and intent although

he may not in fact have had either. It amounts to punish-

ing a paranoid schizophrenic for his actions committed

under circumstances where a mentally unimpaired person

would not be punished with the same severity. Such a

redefinition of the mental-state element of first degree

murder in the case of mentally ill individuals arbitrarily

“lays an unequal hand on those who have committed

intrinsically the same quality of offense” and outrages

even “that large deference” which the Fourteenth Amend-

ment owes to state substantive criminal-law experimenta-

tion. Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942).

II. ARIZONA’S LAW OF CRIMINAL RESPONSI-

BILITY DEPARTS DRASTICALLY FROM THE

DEEPLY ROOTED, FUNDAMENTALLY IMPOR-

TANT, AND STILL PREVALENT STANDARD,

REFLECTED BY M’NAGHTEN AND VIOLATES

DUE PROCESS

Prior to 1993, Arizona’s substantive test of exemption

from criminal liability was whether “at the time of the

criminal act, ... [the accused] had ‘1) [s]uch a defect of

reason as not to know the nature and quality of the act, or

(2) [i]f he did know [the nature and quality of the act}, that

he did not know he was doing what was wrong.” State v.

Tamplin, 195 Ariz. 246, 248, 986 P.2d 914, 916 (Ariz. Ct.

App. 1999.) This two-part definition of insanity is deeply

rooted in Anglo-American law. It is generally associated

with the pronouncement of the English House of Lords in

M’Naghten’s Case, 10 Clark & Fin. 200, 210, 8 Eng. Rep.

718, 722 (1843), though its origins long predate M’Naghten.

In 1993, the Arizona Legislature cut back this M’Naghten

Rule by half. It enacted the current ARS § 13-502(A), under

which a person may be found “guilty except insane” only

“if at the time of the commission of the criminal act the

person was afflicted with a mental disease or defect of

such severity that the person did not know the criminal

act was wrong.” As the Arizona Court of Appeals has

recognized, “|t)]he new statute essentially abandoned the

first prong of the M’Naghten test.” Tamplin, 195 Ariz. at

248, 986 P.2d at 916. That is, in Arizona a defendant who

establishes that the mental disease or defect from which

s/he suffers is so severe that it prevented her/him from

knowing the nature and quality of his or her actions is

now ineligible for the insanity defense.

A. The Arizona Statute Is Contrary to the

Most Deeply Rooted Historical Standard

for Insanity.

It is axiomatic that the Due Process Clause of the

Fourteenth Amendment prohibits States from altering

their criminal laws in ways that “offend . . . |a! principle of

justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Patterson v. New

York, 432 U.S. 197, 201-02 (1977), quoting Speiser v.

Randal!, 357 U.S. 513, 523 (1958), and citing Leland v.

Oregon, 343 U.S. 790, 798 (1952); Snyder v. Massachusetts,

291 U.S. 97, 105 (1934). The “primary guide"in determin-

ing whether the principle in question is fundamental is, of

course, historical practice.” Montana v. Egelhojf, 518 U.S.

at 43; accord: Medina v. California, 505 U.S. 437, 446

(1992). The statutory change at issue here —- Arizona's

halving the M’Naghten standard for insanity — breaks

radically with historical practices that have “deep roots

in our common-law heritage” (id., quoted in Cooper v.

Oklahoma, 517 U.S. 348, 355 (1996)) and was virtually

unanimously followed at the time the Fifth and Four-

teenth Amendment Due Process Clauses were adopted.

The insanity defense “has its roots in ancient Judaic,

Christian and Roman Law.” Neely v. Newton, 149 F.3d

1074, 1079 (10th Cir. 1998). Scholars of the subject have

noted that recognition of the need to treat mentally ill

persons differently in the context of criminal punishment

is over 2,500 years old:

“As early as the sixth century B.C., commentary

on the Hebrew scriptures distinguished between

the harmful acts traceable to fault and those that

occur without fault. To those ancient scholars,

the paradigm of the latter type of act was one

committed by a child, who was seen as incapable

of weighing the moral implications of personal

behavior, even when willful; retarded and insane

persons were likened to children.”

AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE MENTAL

HEALTH STANDARDS 324 (1989). See also, Anthony Platt &

Bernard L. Diamond, The Origins and Development of the

“Wild Beast” Concept of Mental Iliness and Its Relation to

Theories of Criminal Responsibility, 1 J. Hist. BEHAV. SCI.

335, 366 (1965). Beyond that, the more specific conviction

that “the insane should not be punished for otherwise

criminal acts has been firmly entrenched in the law for at

least one thousand years.” Jonas Robitscher & Andrew Ky

Haynes, In Defense of the Insanity Defense, 31 EMory L.J.

9, 10 (1982). Without doubt, the exculpatory force of

insanity was “firmly established by the time the United

States Constitution was adopted, and ... has remained a

fundamental part of American criminal law since Revolu-

tionary days.” Rudolph Joseph Gerber, THE INSANITY

DEFENSE 83 (1984).

In England, the earliest articulations of insanity

embraced the failure to know or understand one’s actions.

In 1603, for example, Lord Coke approved a definition,

dating from Bracton in the thirteenth century that focused

on whether the person knew the nature of his or her

actions: “A madman is one who does not know what he is

doing, who lacks in mind and reason and is not far re-

moved from brutes.” Beverley’s Case, 76 Eng. Rep. 1118,

1121 (1603) (emphasis added). By the eighteenth century,

English authorities took it to be a first principle that:

“Itlhe Guilt of offending against any Law whatsoever,

necessarily supposing a willful disobedience, can never

justly be imputed to those, who are either uncapable of

understanding it, or of conforming themselves to it.” 1

SERGEANT WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF

THE CROWN: OR, A SYSTEM OF THE PRINCIPAL MATTERS

RELATING TO THAT SUBJECT, DIGESTED UNDER THEIR PROPER

HEADS 1 (5th ed. 1771); see also, Rex v. Arnold, 16 How. St.

Tr. 695, 764 (1724) (the jury was instructed that in order

to find the defendant insane, it must conclude that he is

“totally depriveld] of his understanding and memory, and

doth not know what he is doing, no more than an infant,

than a brute, or a wild beast”) (emphasis added).

In short, from the very earliest periods, the prevailing

English conception of insanity has included precisely what

Arizona would now rule out: a failure to know the nature

of one’s actions. Although some features of the insanity

defense have changed over time, “the essence of the

defense, however formulated has been that a defendant

must have the mental capacity to know the nature of his act

and that it was wrong.” State v. Herrera, 895 P.3d 359, 372

(Utah 1995) (Stewart, J., dissenting) (emphasis added).

Knowledge of the nature of one’s actions continued to be a

core ingredient of the concept of insanity when that

already ancient concept found expression in its most

famous and influential English formulation: the 1843 rule

announced by the House of Lords in M’Naghten’s Case.

Under the M’Naghten Rule,

“to establish a defence on the ground of insanity,

it must be clearly proved that, at the time of

committing of the act, the party accused was la-

bouring under such a defect of reason, from dis-

ease of the mind, as not to know the nature and

quality of the act he was doing; or, if he did know

it, that he did not know he was doing what was

wrong.”

10 Clark & Fin. 200, 210, 8 Eng. Rep. 718, 722 (1843). As

courts in this country have long recognized, the M’Naghten

Rule “was in substance the test of legal insanity as it was

known to the common law of England.” State v. Schantz,

403 P.2d 521, 531-34 (Ariz. 1965); see United States v.

McBroom, 124 F.3d 533, 544 (3d Cir. 1997) (tracing the

M’Naghten Rule to “the modern dawn of common law

recognition of insanity as a defense to criminal charges”);

United States v. Garcia, 94 F.3d 57, 61 n. 3 (2d Cir. 1996)

(“The earliest formulation of the insanity defense had its

origins in M’Naghten’s case.”).””

The M’Naghten Rule crossed the Atlantic with the

common law of England. It rapidly became the basis for

“ Courts occasionally refer colloquially to the M’Naghten Rule as

the “nght-wrong test.” In context, however, it is clear that this short-

hand refers to the entire M’Naghten Rule as originally articulated, not

just the second part regarding knowledge of the wrongness of the act.

See Garcia, 94 F.3d at 61 n. 3 (quoting the M'Naghten Rule in its

entirety and then referring to it as “the right-wrong test”).

the test of insanity in every U.S. jurisdiction except New

Hampshire. See Weihofen, supra note 38, at 68-69. During

the succeeding decades some jurisdictions supplemented

M'Naghten with more lenient standards such as the

“irresistible impulse” test, but M’Naghten continued to

describe the essential minimum standard for the vast

majority of jurisdictions. Thus, by drastically narrowing

its definition of insanity to exclude defendants who did not

know the nature and quality of their actions at the time of

the offense charged, Arizona has departed from the ca-

nonical standard of insanity — a standard that was well

established and accepted at the time the Due Process

Clauses were conceived, written, and ratified.

B. The Vast Majority of States Continue to

Employ a Standard at Least as Broad as the

M’Naghten Rule.

Not only is the M’Naghten Rule deeply rooted in our

history and experience, it remains the most common

standard for insanity among the States today. Many other

States employ standards that are even more broadly

exculpatory than M’Naghten. Through one or the other of

these practices, the overwhelming majority of American

jurisdictions continue to accommodate the deeply rooted

conception of insanity reflected in the M’Naghten test.

Twenty States, as well as the federal government,

retain the M’Naghten Rule in its original form or with

slight modifications that preserve the key provision at

issue here.” An additional seventeen States plus the

“ See Ala. Code § 13A-3-1; Alaska Stat. § 12.47.010; Cal. Penal

Code § 25; Fla. Stat. Ann. § 775.027; lowa Code Ann. § 701.4; Minn.

(Continued on following page)

District of Columbia have adopted some version of the

standard proposed by the American Law Institute (“ALI”),

which is broader than and subsumes the M’Naghten

Rule.” The ALI standard provides that “[a] person is not

responsible for criminal conduct if at the time of such

conduct as a result of mental disease or defect he lacks

substantial capacity either to appreciate the criminality

[wrongfulness] of his conduct or to conform his conduct to

the requirements of the law.” Model Penal Code § 4.01

(P.O.D. 1962). Some ALI jurisdictions have not retained

the volitional component of the test (i.e., the language

regarding “conform|[ing] his conduct to the requirements of

the law”), but most have kept it. All ALI jurisdictions

retain the cognitive component referring to a person's lack

of “substantial capacity to appreciate the criminality of his

conduct.” That part of the ALI test alone expands on the

M’Naghten Rule (by requiring appreciation rather than

mere knowledge) while retaining a central concern not just

for whether the defendant could tell right from wrong, but

Stat. Ann. § 611.026; Roundtree v. State, 568 So.2d 1173 (Miss. 1990);

Mo. Ann. Stat. § 552.030; State v. Hurst, 594 N.W.2d 303 (Neb. Ct. App.

1999); Finger v. State, 27 P.3d 66 (Nev. 2001); N.J. Stat. Ann. § 2C:4-1;

State v. White, 270 P.2d 727 (N.M. 1954); N.Y. Penal Law § 40.15; State

v. Staten, 616 S.E.2d 650 (N.C. Ct. App. 2005); N.D. Cent. Code § 12.1-

04.1-01; Okla Stat. tit. 21, § 152(4); 18 Pa. Cons. Stat. § 315(b); Tenn.

Code Ann. § 39-11-501; Bennett v. Commonwealth, 511 S.E.2d 439 (Va.

Ct. App. 1999); Wash. Rev. Code Ann. § 9A.12.010,18 U.S.C. § 17.

“ See Ark. Code Ann. § 5-2-312; Conn. Gen. Stat. Ann. § 53a-13;

Bethea v. United States, 365 A.2d 64 (D.C. 1976); Haw. Rev. Stat. Ann.

§ 704-400; 720 Ill. Comp. Stat. Ann. 5/6-2(a); Ind. Code Ann. § 35-41-3-

6(a); Ky. Rev. Stat. Ann. § 504.020(1); Me. Rev. Stat. Ann. tit. 17-A, § 39;

Md. Code Ann., Crim. Proc. § 3-109; Commonwealth v. McHoul, 226

N.E.2d 556 (Mass. 1967); Mich. Comp. Laws Ann. § 768.21a(1); Or. Rev.

Stat. § 161.295; State v. Johnson, 399 A.2d 469 (R.I. 1979); Vt. Stat.

Ann. tit. 13, 4801; State v. Grimm, 195 S.E.2d 637 (W.V. 1973); Wis.

Stat. Ann. § 971.15; Wyo. Stat. Ann. § 7-11-305(b).

whether s/he understood the import of his or her actions.

See, Rita J. Simon & David E. Aaronson, THE INSANITY

DEFENSE: A CRITICAL ASSESSMENT OF LAW AND POLICY IN

THE POST-HINCKLEY ERA 39 (1988) (noting that “the ALI

test further expanded the M’Naghten rule by requiring a_

failure to apprehend the significance of one’s actions in

some deeper sense involving ‘affect’ or ‘emotional! apprecia-

tion,’ rather than some surface understanding or verbali-

zation of knowledge”) (emphasis added). One final State,

New Hampshire, employs the product test, under which

the defendant is not guilty by reason of insanity if his or

her crime “was the offspring or product of mental disease.”

State v. Pike, 49 N.H. 399, 408 (1869). This test, too,

subsumes M’Naghten within it. See Durham v. United

States, 214 F.2d 862, 874 (D.C. Cir. 1954) (calling the

product test a “broader test” than M'’Naghten).

All together, at least thirty-eight States, the District of

Columbia, and the federal government employ insanity

standards under which those satisfying either part of the

M’Naghten Rule qualify as legally insane. This pervasive

practice confirms the fundamental place that the

M’Naghten Rule continues to occupy in American criminal

law, and further compels the conclusion that States may

not go below the M’Naghten standard without violating

Due Process. See Cooper, 517 U.S. at 359-62.

C. Ample Precedent Supports the Conclusion

that States May Not Adopt an Insanity Test

Narrower than M’Naghten’s Without Violat-

ing Due Process.

Although this Court has never squarely addressed the

issue,” a number of lower courts have held that Due

Process prohibits States from cutting back on the

M'Naghten Rule. In State v. Strasburg, 60 Wash. 106, 110

P. 1020 (1910), the Washington Supreme Court held that a

state statute abolishing the M’Naghten Rule violated the

Washington Constitution.“ In so concluding, the court

surveyed the law of insanity more broadly, noting the

historic “‘rule of law in every civilized country that no

insane man can be guilty of a crime, and hence cannot be

punished for what would otherwise be a crime.’” 60 Wash.

at 114, 110 P. at 1022. Relying, in part on legal authorities

interpreting the United States Constitution, and using the

precise sort of historically sensitive analysis that this

Court has employed when resolving Due Process issues,

the Strasburg Court held that abolishing the M’Naghten

Rule violated Due Process. See id.

“ The Court has, however, embraced M'Naghten as the appropriate

“test to be applied to the general defense of insanity.” Hotema v. United

States, 186 U.S. 413, 420 (1902) (describing the test as whether the

“defendant knew the nature and quality of his act when he committed

it, and that it was wrong and a violation of the law of the land, for

which he would be punished”). See also, Davis v. United States, 186

U.S. 373, 378 (1897) (defining an insane person as being “incapable of

distinguishing between right and wrong, or unconscious at the time of

the nature of the act he is committing.”)

“ The statute provided that “i]t shall be no defense to a person

charged with the commission of a crime that at the time of its commis-

sion he was unable, by reason of his insanity, idiocy or imbecility, to

comprehend the motive and quality of the act committed, or to under-

stand that it was wrong.” 110 P. at 1021.

The Mississippi Supreme Court reached a similar

conclusion in Sinclair v. State, 161 Miss. 142, 182 So. 581,

582 (1931) when it struck down on state due process

grounds a statute that provided-that “the insanity of the

defendant at the time of the commission of the crime shall

not be a defense against indictments for murder.” In a

concurring opinion, Justice Ethridge stressed that “it is

certainly shocking and inhuman to punish a person for an

act when he does not have the capacity to know the act or to

judge of its consequences.” Jd. at 584 (emphasis added).

More recently, in Finger v. State, 117 Nev. 548, 27 P.3d

66 (2001), the Nevada Supreme Court, after exhaustively

tracing the history of the insanity defense in American

law, held that “legal insanity is a well-established and

fundamental principle of the law of the United States,”

and “is therefore protected by the Due Process Clauses of

both the United States and Nevada Constitutions.” 117

Nev. at 575, 27 P.3d at 84. The insanity standard to which

the court referred was the M’Naghten Rule. 117 Nev. at

576-578, 27 P.3d at 84-86.

Put simply, the M’Naghten Rule is a fundamental

principle of law, and the Constitution secures for eligible

defendants the right to put on an insanity defense under a

standard at least as broad as M'Naghten. Other courts

agree. United States v. Greene, 489 F.2d 1145, 1172 n. 69

(D.C. Cir. 1974) (noting that “the insanity defense ...

appears to be constitutionally required”); Jngles v. People,

92 Colo. 518, 522, 22 P.2d 1109, 1111 (Colo. 1933) (“[A]

statute providing that insanity shall be no defense to a

criminal charge would be unconstitutional.”).

This Court’s precedents are not to the contrary. There

are two key points to note about its cases in this area.

First, the issue in most of the cases was the constitutional-

ity of the burden of proof used to adjudicate the insanity

defense, rather than anything to do with the substantive

contours of the defense.“ Second, in cases that do refer to

the appropriate substantive standard for insanity, the

question is invariably whether the Constitution should be

construed to require a broader definition of insanity than

the one established by M’Naghten. That is, the cases

involved arguments that the M’Naghten Rule is constitu-

tionally insufficient, not, as here, the more modest claim

that M’Naghten ought to be preserved as a constitutional

minimum.“

In Leland v. Oregon, 343 U.S. 790 (1952), for example,

the Court devoted the bulk of its attention to a claim that

Oregon had violated Due Process by placing upon the

defendant the burden of proving insanity beyond a rea-

sonable doubt. Jd. at 799. It then disposed of the defen-

dant’s contention that the Constitution compelled adoption

of the more permissive “irresistible impulse” test for

insanity, rather than Oregon’s M’Naghten Rule.

“ E.g., Rivera v. Delaware, 429 U.S. 877 (1976). Analogously, in

Patterson v. New York, 432 U.S. 197 (1977), the Court held that Due

Process was not offended by a New York law that placed the burden of

proving the affirmative defense of extreme emotional disturbance upon

the defendant. In that context the Court stated that “it is normally

within the power of the State to regulate procedures under which its

laws are carried out, including the burden of producing evidence and

the burden of persuasion.” /d. at 201 (emphasis added). Accord, Martin

v. Ohio, 480 U.S. 228, 231-32 (1987).

“ To reject the former sort of claim is a far ery from rejecting the

latter. As Justice Scalia has written, the purpose of the Due Process

Clause “is to prevent future generations from lightly casting aside

important traditional values - not to enable this Court to invent new

ones.” Michael H. v. Gerald D., 391 U.S. 110, 122 n. 2 (1989).

“The science of psychiatry has made tremendous

strides since ... [the] test was laid down in

M'Naghten’s Case, but the progress of science has

not reached a point where its learning would

compel us to require the states to eliminate the

right and wrong test from their criminal law.

Moreover, choice of a test of legal sanity involves

not only scientific knowledge but questions of ba-

sic policy as to the extent to which that knowl-

edge should determine criminal responsibility.

This whole problem has evoked wide disagree-

ment among those who have studied it. In these

circumstances it is clear that adoption of the ir-

resistible impulse test is not ‘implicit in the con-

cept of ordered liberty.’” (emphasis added. }

Id. at 800-01 (footnotes omitted). The Court thus con-

cluded that, in light of the scientific and policy disagree-

ments over the relative merits of the M’Naghten and

irresistible impulse tests, it would be inappropriate to

require the States to adopt a volitional add-on to the time-

honored M’Naghten Rule as a matter of constitutional law.

But that conclusion did not imply that there are no consti-

tutional limits to the States’ power to erode the traditional

boundaries between the spheres of culpability and mad-

ness, or that M’Naghten does not stand as a bastion of

those boundaries. If anything, the Court's respect for

M’Naghten implicitly suggested its fundamental character.

Similarly in Powell v. Texas, 392 U.S. 514 | 1968), the

Court considered the constitutionality of a statute making

it a crime to be intoxicated in a public place. Powell

attacked the statute under Robinson v. California, 370

U.S. 660 (1962), which had struck down a California law

making it criminal to have a drug addiction. He argued

that the Texas statute effectively created a similar status

crime because “chronic alcoholics in general, and Leroy

Powell in particular, suffer from such an irresistible

compulsion to drink and to get drunk in public that they

are utterly unable to control their performance of either or

both of these acts.” Powell, 392 U.S. at 535. At bottom, this

amounted to an argument that, as a matter of irrefutable

fact, “chronic alcoholics suffer from an irresistible impulse

to drink and [that they] are therefore insane” as a matter

of federal constitutional law. Robitscher & Haynes, supra,

at 58. See Powell, 392 U.S. at 544 (Justice Black, concur-

ring) noting that, were the Court to accept Powell’s argu-

ment, it “would be ... require[d] [to] recogni[ze] ...

‘irresistible impulse’ as a complete defense to any crime,”

even though that was “probably contrary to present law in

most American jurisdictions”). It was in that context that

the Court declined the invitation to “defin[e] . . . some sort

of insanity test in constitutional terms” (id. at 536) as an

exercise that would have offended “|t]raditional common-

law concepts of personal accountability” (id. at 536) —

“casting aside the centuries-long evolution of the collection

of interlocking and overlapping concepts which the com-

mon law has utilized to assess the moral accountability of

an individual for his antisocial deeds” (id. at 535-36) — as

well as overriding “essential considerations of federalism”

(id. at 535). So Powell, like Leland is far from categorically

rejecting the idea of a minimum constitutional standard

for insanity, particularly one that is firmly grounded in

those very common-law traditions.”

* Similarly, Medina v. California, 505 U.S. 437 (1992), cannot be

understood as speaking to the issue. In Medina the Court found that

Due Process was not offended by a State’s imposing on criminal

defendants the burden of proving (by a preponderance of the evidence)

their incompetence to stand trial. The ruling was explicitly predicated

(Continued on following page)

In sum, although this Court has not yet addressed the

question whether the States can constitutionally abrogate

the insanity defense or confine it to a compass narrower

than the traditional M’Naghten Rule,” the historicity and

continuing pervasiveness of the core elements of M’Naghten

bear all of the conventional indicia of a “principle of justice

so rooted in the traditions and conscience of our people as to

be ranked as fundamental” Patterson, 432 U.S. at 201-02.

And one of those core elements is the immemorial princi-

ple that an individual cannot be held culpable for acts

when s/he does not even know what s/he is doing. In

flouting that principle, Arizona violates Due Process.

on a finding that “there is no settled [historical! tradition on the proper

allocation of the burden of proof in a proceeding to determine compe-

————tence-"/d. at 446. In declining to create a constitutional burden-of-proof

rule with no foundation in tradition, the Court noted in passing that

“we have not said that the Constitution requires the States to recognize

the insanity defense.” Jd. at 449 (citing Powell, 329 U.S. at 536-37).

That entirely accurate statement carefully avoids deciding the issue

which it describes as undecided.

“ The Supreme Courts of Idaho, Montana and Utah have con-

cluded that the Constitution permits States to abolish the insanity

defense. See, e.g., State v. Herrera, 895 P.2d 359 (Utah 1995); State v.

Searcy, 118 Idaho 632, 798 P.2d 914 (1990); State v. Kore!l, 213 Mont.

316, 690 P.2d 992 (Mont. 1984). Each of those decisions incorrectly

seeks support for that conclusion in this Court’s precedents which we

have discussed above and shown to leave the issue open. And the lower-

court decisions themselves sustain the abolition of the traditional

insanity defense — the distinct legal doctrine exempting a defendant

from criminal liability on the ground of a qualifying mental illness -

only when the defendant’s right to show his or her mental illness as a

factual basis for contesting the prosecution's proof of the mens rea

clements of the charged offenses is preserved. That is, of course, not the

case in Arizona. See Point | supra and Point III infra.

D. The Suggestion of the Court of Appeals that

Arizona’s Halving of the M’Naghten Stan-

dard Made No Difference in Eric’s Case Dis-

regards the Record.

After explaining as a matter of legal analysis why

Arizona’s “eliminating the first prong of the M’Naghten test

... [does not constitute] a violation of due process,” the

Court of Appeals below added that the cutback was of no

consequence to Eric because “(i]t is difficult to imagine that

a defendant who did not appreciate the ‘nature and quality’

of the act he committed would reasonably be able to per-

ceive that the act was ‘wrong’.” (JA 350) This reasoning

starts from the fallacious premise that the line of thinking

of a schizophrenic can be predicted by normal logic.

The record flatly refutes that premise. The defense

psychiatric expert testified that schizophrenia is “charac-

terized by a variety of forms of distorted thinking ... , a

disturbance in logic; their thinking really does not make a

lot of sense. It’s not connected.” (RT 8/22/03 at 21/JA 18.)

“It’s not based on logic, it’s not based on the shared under-

standing we have of the world. It’s their own idiosyncratic

logic.” (Id. at 27/JA 22-23; see also id. at 22, 28 JA 18-19,

23-24.) The prosecution expert did not contest this but

agreed that paranoid schizophrenia is characterized by

distorted thinking and contradictory logic. (RT 8/26/03 at

91, 96-97/JA 181-82, 185-86.) This record contains both

expert testimony that Eric “really had a tremendous

amount of difficuliy perceiving reality as you and I see it”

(RT 8/22/03 at 48/JA 39), and descriptions of episodes in

which, after engaging in bizarre or violent behavior, Eric

appeared immediately afterwards to not know what he

had just done or at times know whether it was wrong. (RT

8/19/03 at 99; RT 8/20/03 at 135; RT 8/12/03 at 49-53; RT

8/21/03 at 72-73).

That unawareness of the nature of his acts could

coexist in Eric’s psychotic mind with knowledge of the

wrongness of killing is no less plausible than other insane

contradictions he unquestionably harbored. For example

as the prosecutor elicited on cross examination of the

defense expert psychiatrist:

“Q. He also told you that his family . . . were his

best friends?

Yes.

He also told you his parents may be aliens?

Yes.

en a

But, in spite of that, they were still his best

friends?

That kind of conflictual sort of logic is ...

very common with schizophrenics, you know,

where two seemingly opposing ... opposite

sorts of things can ... be present in the per-

son’s mind but it’s part of their whole irra-

tionality.”

(RT 8/22/93 at 73/JA 60-61.)

Ill. ASSUMING DUE PROCESS PERMITS A STATE

EITHER TO HALVE THE INSANITY DEFENSE

OR TO ABROGATE AN INSANE DEFENDANT’S

MENS REA DEFENSE, ARIZONA VIOLATED

THE CONSTITUTION WHEN IT DID BOTH

In prosecuting Eric Clark, Arizona simultaneously

denied him the benefit of half of the traditional Anglo-

American standard for insanity (Part II, supra) and

precluded the trier’s consideration of Eric’s severe mental

illness as a basis for factual doubt that the prosecution

had proved the mental elements of the charge of first

degree murder. (Part I, supra.) This kind of hamstringing

of both legs of a mentally impaired defendant’s trad ::onal

means for obtaining consideration of his/her involuntary

mental impairments is exceedingly rare among American

jurisdictions. Only four States other than Arizona -

Delaware, Georgia, Louisiana, and Ohio — both rule out

the first prong of the M’Naghten insanity defense and

prohibit the use of mental-illness evidence to challenge the

prosecution's proof of mens rea.” Every other State in the

Union, as well as the District of Columbia and the federal

government, allows a mentally ill criminal defendant at

least one, if not both, of these procedures for defending

against the imputation of guilt for actions committed

without knowing what s/he was doing.

Even those courts that would grant the States the

greatest leeway to alter the traditional insanity defense

acknowledge that abridging both insanity and the right to

present psychiatric evidence to rebut the prosecution's

proof of mens rea elements would raise serious constitu-

tional difficulties. In upholding the total abolition of the

“ Del. Code Ann. tit. 11, § 401(a) and Bates v. State, 386 A.2d 1139,

1144 (Del. 1978) (Delaware also, however, permits a finding of GEI for

defendants who as a result of a psychiatric disorder have “insufficient

willpower to choose whether [to] do the act or refrain from doing it.”

($ 401(b)); Ga. Code Ann. § 16-3-2 and State v. Ball, 310 S.E.2d 516 (Ga. _

1984) (Georgia also, however, provides for the defense of delusional

compulsion and permits a finding of GEI if a defendant, as a result of

mental illness has “significantly impairled] judgment, behavior,

capacity to recognize reality, or ability to cope with the ordinary

demands of life.” Ga. Code Ann. § 16-3-3; § 17-7-131(aX2), (c2)); La.

Rev. Stat. Ann. § 14:14 and State v. Jones, 359 So.2d 95, 98 ‘La. 1978);

Ohio Rev. Code Ann. § 2901.01(A\14) and State v. Wilcox, 70 Ohio St.

2d 182, 436 N.E.2d 523 (Ohio 1982).

insanity defense in Idaho,” the Idaho Supreme Court

noted that “[t]hree states, Idaho, Montana, and Utah, have

legislatively chosen to reject mental condition as a sepa-

rate specific defense to a criminal charge. The statutes in

these three states, however, expressly permit evidence of

mental illness or disability to be presented at trial, not in

support of an independent insanity defense, but rather in

order to permit the accused to rebut the state’s evidence

offered to prove that the defendant had the requisite

criminal intent or mens rea required ... to commit the

crime charged.” State v. Searcy, 118 Idaho 632, 635, 798

P.2d 914, 917 (1990). The Utah high court took care to note

the same point and to explain the role that mental-illness

evidence can still play in trials of criminal guilt or inno-

cence. See State v. Herrera, 895 P.2d 359, 364 (Utah 1995).

In Arizona, that role has been foreclosed for defen-

dants whose mental! illness prevented them from knowing

what they were doing. Beyond the grave constitutional

flaws in Arizona’s preclusion of defense evidence offered to

contest mens rea on the one hand and severe curtailment

of the M’Naghten Rule on the other, the application of both

these impediments together deny a criminal accused “a

meaningful opportunity to present a complete defense”

(Crane, 476 U.S. at 690) and make an aimless mockery of

the Due Process model of a fair trial

“ erroneously, in our view.

CONCLUSION

Eric Clark’s conviction was obtained in violation of

Due Process and should be reversed.

RESPECTFULLY SUBMITTED this 30th day of

January, 2006.

DAVID GOLDBERG

Attorney at Law

P.O. Box 746

Flagstaff, AZ 86001

Phone (928) 606-1618

Fax (928) 525-9352

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.