# Appendix — Parker v. Gall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1103%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 533 U.S. 941 ## Text IN THE Supreme Court of the United States PHIL PARKER, WARDEN, Petitioner versus EUGENE WILLIAMS GALL, JR., Respondent On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit APPENDIX TO PETITION FOR WRIT OF CERTIORARI ALBERT B. CHANDLER III Attorney General of Kentucky RICKIE L. PEARSON Assistant Attorney General IAN G. SONEGO Assistant Attorney General Counsel of Record Criminal Appellate Division Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204 (502) 696-5342 APPENDIX Item Page Opinion, United States Court of Appeals, Sixth Circuit, October 30, 2000 ................ Judgment, United States Court of Appeals, Sixth Circuit, October 30, 2000 ................ Order, United States Court of Appeals, Sixth Circuit, February, 2001 ................. Judgement, United States District Court, Eastern District of Kentucky, January 23,1991 ... Opinion and Order, United States District Court Eastern District of Kentucky, January 23,1991 ... Opinion and Order, United States District Court Eastern District of Kentucky, March 19,1991 .... Opinion and Order, United States District Court Eastern District of Kentucky, September 21, 1994 . Magistrate’s Report and Recommendation, United States District Court Eastern District of Kentucky, April 29, 1987 ..... Opinion, Supreme Court of Kentucky, SMMUNEET UE ood ees 137-187 188-192 193-200 201-229 230-269 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0379P (6th Cir.) File Name: 00a0379p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EUGENE WILLIAMS GALL, JR., Petitioner-Appellant, Nos. 91-5502; v. a 94-6376 PHI. PARKER, Warden, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 87-00056—William O. Bertelsman, District Judge. Argued: November 3, 1999 Decided and Filed: October 30, 2000 Before: MARTIN, Chief Judge; JONES and GUY, Circuit Judges. COUNSEL ARGUED: Erwin W. Lewis, Edward C. Monahan, DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. Rickie L. Pearson, ASSISTANT ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Erwin W. Lewis, Edward C. Monahan, DEPARTwiscNT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. Rickie L. Pearson, Ian G. Sonego, l i 2 Gallv. Parker Nos. 91-5502; 94-6376 ASSISTANT ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. JONES, J., delivered the inion of the court, in which MARTIN, C. J., joined. G » J. (pp. 112-131), delivered a separate opinion concurring in part and dissenting in part. OPINION OVERVIEW tragedy, anger and outrage over hideous acts trated, a fair and constitutional trial takes place. Constitutionally fair trials do not occur whenever a judge, jury and litigants go Nos. 91-5502: 94-6376 —) Galtv. Parker 3 through the formal process of presenting arguments and examining witnesses. For a trial to be constitutionally sound requires far more: it is a trial where the prosecutor must prove all elements of a crime beyond a reasonable doubt in order to convict; where the prosecutor adheres to certain rules of conduct that guarantee a fair trial and a proper consideration of the defendant’s theories and supporting evidence; where the jurors consider only evidence adduced by the parties and that a defendant has had an opportunity to rebut; and where a defendant enjoys the right to cross-examine adverse witnesses. When a state contemplates imposing the ultimate penalty, a constitutional trial requires jury selection procedures that avoid seating a jury predisposed to a death sentence, and also allows each individual juror to give effect to any mitigating evidence. It follows then that the issues raised do not lend themselves to summary treatment. After painstakingly reviewing each of the issues raised and the extensive trial record, and minutely examining the relevant governing authorities, we agree with Gall that substantial errors occurred. The key issues contested at trial that we treat below involved Gall’s mental condition, and specifically whether he was competent to stand trial, whether he was legally insane at the time of the crime, and whether he was under extreme emotional disturbance when he committed the crime. Unfortunately, an array of complicating circumstances—high publicity, Gall’s own actions, trial court mistakes, overzealous prosecutorial tactics combined with inexcusable oversights, and poor defense advocacy at various stages—introduced errors into both the guilt and penalty phases of Gall’s trial, as well as into his direct appeal in the state courts. Although we reject a number of Gall’s arguments, we find some of the errors to have been sufficiently egregious so as to violate fundamental constitutional rights and protections. 4 Gall v. Parker Nos. 91-5502; 94-6376 I. A. On April 27, 1978, a Boone County grand jury indicted Gall for the rape and murder of Lisa Jansen. In a two-phase trial, the Commonwealth presented considerable evidence that of the crime became the trial’s central issue. On September 30, 1978, the jury found Gall guilty of murder while engaged in the commission of rape. Finding no mitigating circumstances, the jury recommended the death penalty on October 2, and the trial court entered judgment accordingly on Gall directly appealed the conviction on numerous grounds, but the Kentucky Supreme Court affirmed his conviction. See Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980) (Gall J). Gall’s petition for a writ of certiorari was denied on March 9, 1981. See Gall v. Kentucky, 450 U.S. 989 (1981). Gall subsequently sought post-conviction relief in State court through a RCr 11.42 motion, but the Kentucky Supreme Court denied his various claims for collateral relief. See Gall v. Commonwealth, 702 S.W.2d 37 (Gall Il). In July 1986, Gall filed a habeas corpus petition with the District Court of the Eastern District of Kentucky, raising twenty-five assignments of error. The magistrate recommended that the petition be dismissed, and on January 23, 1991, the district court denied the petition. On March 19, 1991, the district court denied Gall’s motion to alter or amend that judgment. Gall appealed this denial on April 18, 1991. B. The Kentucky Supreme Court provided a detailed account of the facts at issue: | At about 7:35 a.m. on April 5, 1978, Lisa Jansen, a | 12-year-old schoolgirl, left her home in suburban | Cincinnati, Ohio, for school. She was missed very shortly | thereafter when she failed to arrive at the home of a Nos. 91-5502; 94-6376 Gallv. Parker 5 friend she had planned to meet on the way and it was ascertained that she had not gone directly to school. At about 9:25 a. m. that mo Mrs. Connie Puckett, while driving her automobile along Kentucky Highway 16 from Verona, Kentucky, to her home in Walton, Kentucky, noticed a red jacket lying on the side of the highway near the intersection of Stephenson-Mill Road. She st and retrieved it, thinking that probably it belonged to one of the students attending the elementary school at Verona. She was positive that the jacket had not been there when she passed the same place a few minutes earlier on her way to Verona. Upon ——- her trip homeward she ed an open schoolboo lying in the road, stopped and picked it up. It bore the name of Lisa Jansen, and when Mrs. Puckett arrived back in Walton she telephoned the school at Verona. The school principal advised her that no one by the name of Lisa Jansen was enrolled there, but later in the day he called back and told Mrs. Puckett that a television newscast had reported a Lisa Jansen as missing. Mrs. Puckett then ott her discovery of the jacket and schoolbook to the Cincinnati police. The distance from Lisa's home in Ohio to the Kentucky state line at Cincinnati was 10.9 miles, and from the state line southward via Interstate 75 to the place near Stephenson-Mill Road where her body was found the next moruing is 22.6 miles. Gall resided at Hillsboro, Ohio, about 45 miles the other side of the Jansen home. At about 10:15 a. m. on April 5, 1978, a man later identified as the appellant, Gall, entered a small store at the crossroads village of Gardnersville, 17 miles or so by public roads from the vicinity of Stephenson- Mill Road (which consists of a loop leading off and then back to Highway 16), and robbed the storekeeper and her customers at the point of a .357-gauge magnum stainless-steel revolver. The storekeeper, who was familiar with this type of weapon, observed from the exposed portions of the magazine that it was loaded with 6 Gall v. Parker Nos. 91-5502; 94-6376 n. Subsequent labora tests established that a Pallet removed from Theopert S person had been from the revolver found in I's automobile. Shortly following his arrest Gall, by reason of his police record, became a Suspect in connection with the c with several counts of rape and armed robbery in institution at Lima, O , after which he entered a plea of guilty to those charges and spent five years in a state penitentiary at Lebanon, Ohio. He was 31 years of age at the time of Lisa Jansen's murder. Gall I, 607 S.W.2d at 100-01 . After his arrest and throughout The period covered by his purported amnesia coincided with the time of Lisa Jansen’s killing. Nos. 91-5502; 94-6376 Gallv. Parker 7 C. Because Gall = numerous aspects of his trial, we will describe in detail the most important elements of that proceeding before addressing his arguments. ;.. The question of Gall’s yr ms to stand trial emerged repeatedly throughout pre-trial proceedings and the trial itself. The day after Gall was arraigned and indicted, the trial court appointed Dr. Robert Noelker, a clinical psychologist, to assess Gall’s competence to stand trial. Simultaneously, the Commonwealth hired Dr. Lee Chutkow, a psychiatrist, to determine Gall’s legal com . Dr. Noelker first examined Gall on April 13, 1978. After his intment by the court, he continued to examine and observe Gall up to and throughout the fall trial. Dr. Chutkow examined Gall on April 30, 1978. Dr. Noelker presented his views on Gall’s competence at a hearing on May 26, 1978. First, Dr. Noelker reported that intelligence tests showed Gall’s verbal en to be “in the extreme high end of superior range of deve a J.A. at 872. Other tests showed Gall to be “a severely disturbed, Sschiauphated pence ee Pca te “schi ic paranoid type” personality di most severe psychological disorder that can be diagnosed. J.A. at 873-74. Nevertheless, Dr. Noelker concl that due to Gall’s remission from his disorder, he was “absolutely convenced” (sic) that he was competent to stand trial. J.A. at 875. At the hearing, Dr. Noelker also testified that Gall claimed to have no recollection of his activity at the time of the murder. He further stated that such amnesia is rare in personality disorders of Gall’s type, but that he had not yet concl whether Gall had been in an amnesic state for the period in question. The Commonwealth placed into evidence two reports by Dr. Chutkow, who also concluded that he was legally competent. J.A. at 1537. Both Dr. Chutkow’s report and Dr. Noelker’s testimony described a joint attempt to assess the veracity of Gall’s claim of amnesia. When they 8 Gall v. Parker Nos. 91-5502; 94-6376 to perform the i , Gall refused pw Ke dfwen, Eoarteaiota g, the trial court issued an finding Gali competent to stand trial. On September 13, 1978, the trial court held another pre- trial hearing on Gall’s competence. Dr. Noelker again stated that Gall “was definitely competent and has been on ev occasion that I have seen him.” J.A. at 904. He no ; however, that Gall was “less together” and “more anxious” on recent visits than he had been previously. J.A. at 904. On September 23, 1978, after several days of voir dire, Gall informed the trial court judge that he desired to “take a more active role in (his) defense as far as uestioning and cross- examining [] witnesses.” J.A. at 635. Ina hearing outside of the jury’s presence, Gall stated that he understood he would mages his insanity defense by taking part in the trial. Dr. oelker testified that although he believed Gall remained competent, recent developments—primarily Gall’s desire to represent himself—were bringing Gall “very close” to incompetency due to an inability to “assist counsel rationally in preparing and carrying out his own defense.” J.A. at 910. On observing Gall’s behavior at trial, Dr. Noelker notified Gall’s counsel that he believed Gall was no longer ae. The trial court once again called a hearing, where Dr. Noelker testified that Gall was no longer “capable of rationally participating in his own defense and/or assisting his attorneys in preparing or conducting his defense.” J.A. at 915. He concluded Gall “hafdt disassociated himself from this trial and [] is —"s in it much more as the attorney than the Defendant,” J.A. at 915, adding that Gall’s of competence was “deceiving.” J.A. at 918. Although he had an “excellent” ability to understand the pr ings taking place and the seriousness of their potential ee me OO at * late them relative to himself” because he now believed he was a defense attomey. J.A.at921. Recent psychological tests confirmed this finding of incompetence, Dr. Noelker stated. Nos. 91-5502; 94-6376 Gallv. Parker 9 At this hearing, Gall explained to the trial judge that he did not agree with his counsel’s “insanity only” defense strategy, and requested that the trial continue. He believed the best trial approach was to challenge the circumstantial evidence against him, creating a reasonable doubt as to his guilt. J.A. at 926, 930. The trial judge tentatively concluded that Gall was “extremely capable of assisting his counsel.” J.A. at 936. Nevertheless, he ordered another psychiatrist to examine Gall that evening. The ‘following day, Dr. Kenneth Lanter, a psychiatrist, testified that lie ong a his Bor sine boy rg to “participate at any degree [in] his defense.” J.A. at 842. deccitealy, Dr. Lanter found that Gall appreciated his available legal defenses (including the insanity defense); understood the roles of the judge, lawyers and jurors in the trial; appreciated the seriousness of the proceedings and possible penalties against him; and exhibited above-average intelligence. J.A. at 841-45. After hearing this testimony, the trial judge once again concluded that Gall was “qualified mentally and emotionally,” was “capable of assisting his counsel and [wa]s able to participate rationally in his own defense.” J.A. at 853. The trial proceeded accordingly. y 3 As the district court found below, the Commonwealth’s circumstantial evidence against Gall was “overwhelming.” J.A. at 25. This evidence included: evidence placing Gall near the area where the victim’s body was found around the time of the murder; ballistics tests from Gall’s gun matching the bullets recovered from the bodies of Jansen and the police officer; red nylon carpet fibers from the car Gall was driving matching the red nylon fibers found on the victim’s clothing; matching tire tracks from Gall’s car and the tracks taken from the area where the victim’s body was recovered; matching blood type between the semen stains on the front seat of petitioner’s car and the samples from the victim’s body; and a matching hair and blood type between a long hair recovered from Gall’s car and the victim’s hair. SE ee ae oS ey 10 Gall v. Parker Nos. 91-5502; 94-6376 3. Due to this strong evidence, the insanity defense and Gall’s claim that he was under an extreme emotional disturbance at the time of the mre emerged as critical aspects of the trial. Dr. Noelker testified before the jury that Gall was legally insane on April 5. Dr. John Toppen, another psychiatrist, reached the same conclusion in a deposition entered into evidence. The prosecution rebutted this testimony by presenting a WP ra and written transcript of Dr. Chutkow’s testimony regarding Gall’s mental conditicn. Arresting officers and eyewitnesses also testified that Gall appeared calm and “normal” when they observed him during and after the 10:15 a.m. store robbery in Gardnersville. Because these assessments form a crucial part of Gall’s appeal, we will address them in detail. First, Dr. Noelker testified before the jury that Gall suffered from a psychotic disorder—“the most severe type of personality disorder that we know.” J.A. at 956. Dr. Noelker testified that psychotic disorders of the type Gall suffered are “commonly characterized . . . by a loss of contact with reality[,] by an inability to control one’s behavior or thinking, by delusions, hallucinations, by grandiosity and by gages affect of the circumstances he is under.” J.A. at 956. Dr. Noelker reached his conclusion after conducting rsonal examinations and interviews with Gall, examining is troubled past and extensive history of mental illness (including Gall’s prior impriconment and institutionalization), and performing an assortment of tests. An out-of-state firm that conducted a blind assessment of Gall’s test results agreed with his finding, and recommended administering psychotic medicine. This bevy of data led Dr. Noelker to conclude that Gall suffered from chronic paranoid schizophrenia, J.A. at 969, and that he was extremely dangerous and likely to act in a similar manner in an uncontrolled environment. J -A. at 962. He further stated that this type of schizophrenia was incurable, although Gall’s behavior only periodically exhibited “the manner [in which] he is accused of acting in this instance.” J.A. at 969-70. Dr. Noelker also repeated the Nos. 91-5502; 94-6376 Gallv. Parker 11 observations he had made to the trial court that Gall’s behavior at trial exhibited the type of “disassociation [that] is commonly found in schizophrenia.” J.A. at 978. Looking at Gall’s history, Dr. Noelker also found that Gall had “blotted out his actual knowledge” of sexual crimes he had committed in 1970, consistent with his purported amnesia in this case. J.A. at 967-68. Considering all these factors, Dr. Noelker testified that he had “absolutely no question in [his] mind” that Gall lacked substantial capacity to conform his conduct to the requirements of the law on April 5. J.A. at 982. The criminal acts he committed were “the result of a severe personality disturbance.” J.A. at 982. The severity, permanence and destructiveness of Gall’s disorder also prompted Dr. Noelker to recommend that Gall “never be a to hecome a free member of [] society again.” J.A. at , Gall’s counsel also introduced into evidence the deposition of Dr. John Toppen, a psychiatrist who examined Gall on September 25, 1978. Dr. Toppen concluded that Gall had “schizophrenia of a paranoid type and chronic in nature,” which he categorized as “severe, certainly in terms of his dangerousness to others.” J.A. at 1207-08. Dr. Toppen further testified that Gall was in a psychotic paranoid schizophrenic state when he committed the rape and killing on April 5, 1978, and therefore lacked capacity to conform his behavior to the requirements of the law. J.A. at 1211-12. Testifying on behalf of the Commonwealth, Dr. Chutkow stated that he did not believe that Gall was suffering from acute paranoid schizophrenia on April 5. Dr. Chutkow also believed that Gall could at times comply his behavior to the requirements of the law. J.A. at 321. He stated that these conclusions were based on Gall’s account of the events of April 5 that he remembered, which showed thai “[h]e was thinking realistically” and showed none of the “classical symptoms of schizophrenia.” J.A. at 319. Moreover, on the day of the examination, “[Chutkow] received nothing from him . . . indicative of schizophrenic symptoms, nor did he have them . . . after he was arrested and put in jail.” J.A. at 12. Gall v. Parker Nos. 91-5502; 94-6376 319. Further, Dr. Chutkow believed that Gall’s claim of amnesia was simply a conscious decision to remain silent about the hours preceding his arrest. J.A at 354. The peculiar circumstances of Dr. Chutkow’s testimony warrant close scrutiny. The record is clear that Dr. Chutkow testified by videotape rather than in open court without any explanation oi showing that he was unavailable. The prosecution provided no reason for Dr. Chutkow’s absence, and at oral argument for this appeal, stated only that it could not recall the reason Dr. Chutkow did not deliver live testimony. In fact, Dr. Chutkow gave the deposition on ge 28 in the same courthouse where the trial took place. Furthermore, Dr. Chutkow acknowledged that the purpose of his 90-minute examination of Gall months before had been simply to determine if Gall was competent to stand trial, and not if he was legally sane on April 5, 1978. J.A. at 325. As Dr. Chutkow himself stated at the trial deposition and a 1989 deposition conducted for this habeas petition, the brief, one- time session in which he assessed "s competency to stand trial in no way approximated the scope, duration and intensity of investigation required to assess a person’s legal sanity. Not - only did Dr. Chutkow not believe he had investigated Gall’s sanity, he did not consider himself to have been testifying as to Gall’s sanity. J.A. at 411 (“I did not conduct an examination on his sanity.”); J.A. at 412, 413, 414 (“I would have been quite aware if there was a question about Sanity, and they didn’t ask me that.’); J.A. at 413 (“I really was not aware that [sanity] was the background of the questioning.”); J.A. at 426 (stating that it “would not have been proper to make an opinion on his sanity”); J.A. at 427 (stating that he believed the hearing’s purpose was to determine competency); J.A. at 435-38 (denying that he stated Gall was insane). "The 1989 deposition elaborated on Dr. Chutkow’s testimony in significant detail. Dr. Chutkow concluded that his “dialogue” with Gall in April 1978 “was sufficient for [determining] co but not for sanity.” J.A. at 412. First, he described the vast difference between Nos. 91-5502; 94-6376 Gallv. Parker 13 Rather, consistent with the purpose of his examination of Gall in April, he believed the questions were aimed at eliciting his views on Gall’s competency to stand trial, and nothing more. Il. This court reviews de novo a district court’s refusal to grant a writ of habeas corpus. See McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996). We review the district court’s findings of fact for clear error. See id. Given the complexity of this case, our review, of necessity, must be explicit. Primary or historical facts found by state courts are “presumed correct and are rebuttable only by clear and convincing evidence.” Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). District court findings of fact based upon its review of state court records or written decisions receive plenary review. See Caldwell v. Russell, 181 F.3d 731, 735 (6th Cir. 1999). Determinations of federal law, or determinations involving mixed questions of fact and law, receive de novo review. See Mapes, 171 F.3d at 413. State competency and sanity exams, both in the substance of the examinations and in their length and scope J.A. at 364-385, underscoring the inadequacy of the competency exam he conducted in determining Gall’s sanity. (Indeed, he ee — a competency test to determine sanity “would not have proper.” J.A. at 426). For instance, while he testified that a typical sanity exam takes from six hours to hundreds of hours, J.A. at 375, Dr. Chutkow testified that he examined Gall for only 90 minutes. J.A. at 387; only a fraction of those minutes were spent recounting the events of April 5, which Dr. Chutkow had testified would have been vital to assessing sanity. J.A. at 387-88. Upon reflection, Dr. Chutkow stated that a full sanity examination would have taken him from two to four weeks. J.A. at 400. Further, Dr. Chutkow testified that his conclusions as to Gall’s hoary | were not based on information (such as prior iatric or medical history) that is vital to such assessments, because he never received that information until after the trial was complete. J.A. at 397. 14 Gall v. Parker Nos. 91-5502; 94-6376 court interpretations of state law generally bind the federal reviewing court. See Caldwell, 181 F.3d at 738.364 Before addressing the merits of his claims, we examine whether Gall has mhensed his state remedies, which he must do to gain habeas relief. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). With one exception, Gall presented the Kentucky courts with every constitutional claim that he raised before the district court and this Court. While Gall never asserted in state court the Confrontation Clause claim that he has argued below and before this Court, we agree with the Commonwealth that he procedurally defaulted on that claim because, without cause, he failed to bring it either on his direct appeal or state postconviction petition. See infra. Because the exhaustion requirement “refers only to remedies still available at the time of the federal petition . . ., it is satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.” Gray v. Netherland, 518 U.S. 152, 161 (1996) (citation omitted); see also Rust, 17 F.3d at 160 (stating that because “no remedy exists” in state court for petitioner’s constitutional claim, “no exhaustion problem exists”). Thus, Gall has exhausted all State remedies available to him. Hil. Gall challenges a aumber of aspects of the guilt phase of his trial. A. Legal Competence Gall argues that his due process rights were violated because he was not competent to stand trial, having lacked sufficient contact with reality to understand the proceedings or cooperate with his attorneys. Gall further argues that the = These standards of review apply because Gall filed his petition for habeas review before April 1996. After that date, the new reviewing standards ushered i in by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996), apply. Nos. 91-5502; 94-6376 Gall v. Parker 15 trial court violated due process by allowing him to represent himself at trial. A state court’s determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. See Demosthenes v. Baal, 495 U.S. 731, 725 (1990). A federal court may not overturn such determinations unless it concludes that they are not fairly supp ee ips hia 108 Gall v. Parker Nos. 91-5502; 94-6376 that a reasonable juror wou extraneous information of parole status in setting his (noting that when an “death was information that he a fe Gardner, 430 U.S. at 3 » 156 F.3d at 636 (noting that extraneous information “taints {a jury’s] deliberations with information not subject to a trial’s procedural safeguards”), Moreover, the trial court’s response to the prospect that the jury was “tainted” was unacceptably weak. He merely advised the jury that “it would be error for this Court to instruct bject of parole.” J.A. at 1638. ith | faced with this question, the judge had a duty to admonish the jury more forcefully that it could not consider parole sentence determination—whi ky law at 5, 848 text of Supreme Court has Clearly discretion to impose death based on it saw fit. See In short, we believe that the jury’s extraneous knowledge of I’s parole status at the time of the killing, and the trial court’s failure to respond appropriately to its question regarding parole, inflicted “substantial and injurious effect or i in determining the jury’s verdict.” Brecht, 507 U.S. at . Nos. 91-5502; 94-6376 Gall v. Parker 109 V. Due to the constitutional violations stated above, this Court is compelled to grant Gall’s petition for habeas relief. This Court has broad discretion in fashioning such relief. See Hilton v. Braunskill, 481 U.S. 770, 775 (1987). The law requires that we dispose of habeas corpus matters “as law and justice require.” 28 U.S.C. § 2243. The predecessor to that Statute vested a federal court “with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus.” Hilton, 381 U.S. at 775 (internal quotation marks and citation omitted). Despite this discretion, double jeopardy prevents us from ordering a retrial of this case—the prosecution already had one attempt to make its case for murder and, as explained above, failed to prove an essential element. See United States v. Burks, 437 U.S. 1, 16-18 (1978); Stacy v. Love, 679 F.2d 1209, 1212-14 (1982)."" Without that element proved, Gall’s conviction would have been for manslaughter pursuant to Ky. Rev. Stat. Ann. § 507.030(b), which carried a maximum jail term of twenty years—a length of time he has already served. Noneiheless, in looking at the trial record, we think that the overwhelming and undisputed evidence of Drs. Chutkow and Toppen was that Gall was not sane at the time he committed the acts in question. Moreover, the evidence clearly showed that Gall’s psychotic condition is nermanent, and that he would be extremely dangerous to his fellow citizens if released into free society. Dr. Noelker testified to Gall’s dangerousness in the starkest of terms. He stated that Gall’s condition was not curable, and “[t}he best that we could hope to do would be to control his condition.” J.A. at 970. Outside of an institution, he explained, this is not possible; “we would have no means of knowing how or when he took his ie we believed that there was even a minimally plausible argument that double jeopardy did not apply here, we would certainly provide the Commonwealth an opportunity to make that case, as the dissent suggests. et Burks makes it clear beyond doubt that double jeopardy does apply in this instance. 110 Gall v. Parker Nos. 91-5502; 94-6376 medication or what pressures would cause him to become psychotically obsessional.” Jd. In an uncontrolled setting, therefore, it was “probable that [Gall] would act again in a similar manner” to the grisly act committed in this case. J.A. at 962. It was therefore his “strong recommendation” that Gall “never be ar a - a agpine of a9 society again.” J.A. at ; 1983, he repeated his d sgnosis that Gall would always suffer from a mental disease or defect. J.A. at 1093. At trial, Dr. Toppen reaclied the same conclusion, explaining the need for Gall to remain in a highly structured environment, whether that be a mental or penal institution. J.A. at 1215. A 1991 examination by another doctor confirmed that Gall is permanently dangerous. J.A. at 629 (concluding that Gall’s violent propensities “appear to be the result of a brain dysfunction which unleashes, without apparent internal controls, violent and aggressive behavior’). With this overwhelming showing of Gall’s severe mental illness and his high potential for fiture dangerousness, we condition the grant of Gall’s habeas petition on the state’s granting him an involuntary hospitalization proceeding, just as he would have been provided if he had been found insane under Ky. Rev. Stat. Ann. § 504.030 (requiring such a proceeding for defendants who are acquitted by reason of insanity). We leave it to that proceeding to determine if Gall meets the guidelines of Ky. Rev. Stat. Ann. ch. 202A, which provides for confinement and hospitalization of mentally ill and dangerous persons until a time when they no longer present a danger to themselves or others. As this Court once stated in similar circumstances, we can only hope that the Commonwealth will note the overwhelming evidence that this man is severely mentally ill and highly dangerous and commit him indefinitely on that basis. See Stacy v. Love, 679 F.2d at 1214. VI. There can be little doubt that the fact that Gall committed a heinous crime drove the prosecution to secure a conviction Nos. 91-5502; 94-6376 Gall v. Parker 111 at the expense of Gall’s constitutional rights. We must remember, as Judge Cranch so eloquently stated almost two centuries ago, that the “constitution was made for times of commotion.” United States v. Bollman, 24 F.Cas. 1189, 1192 (C. D.C. 1807) (Cranch, J., dissenting). In these times, “[wJe ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which an hundred innocent persons may suffer.” Jd. | Unfortunately, the cumbersome circumstances of this trial and the Commonwealth’s zeal in securing a murder conviction and death sentence overwhelmed the strictures of the Constitution. By failing to bind the Commonwealth to constitutional requirements, and by allowing constitutional error to infect the trial in ways that altered its outcome, the trial and appellate courts failed in their duty to “administer justice [] according to the laws and constitution of the United States.” Id. Specifically, Gall’s trial, conviction and appeal contravened the fundamental elements discussed above. We are therefore compelled to REVERSE the district court’s denial of habeas relief and REMAND for proceedings consistent with this opinion. 112 Gall v. Parker Nos. 91-5502; 94-6376 CONCURRING IN PART, DISSENTING IN PART however, is not the usual one that the state either retry or release the prisoner. Rather, the court first rules that double jeopardy would preclude the retrial of the defendant, an issue that was not raised in this appeal and an issue on which the State has never had an Opportunity to be heard. The result of this holding would be to release a person who is undoubtedly guilty of the heinous offense charged and whom the court itself characterizes as likely to commit a similar offense. In order to avoid this result the court next takes the unprecedented step of ing the role of the trial jury, which rejected the insanity defense, and finds the defendant insane. The state trial court is then ordered to hold an involuntary hospitalization proceeding ynder Ky. Rev. Stat. Ann. § 504.030 (Banks-Baldwin 1995). ‘Although Kentucky now provides that a jury may find a defendant guilty but mentally ill, this verdict was not an option for juries when Gall was tried. | “This section reads: 504.030 Disposition of Person found not guilty by reason of insanity (1) When a defendant is found not guilty by reason of insanity, the court shall conduct an involuntary — om proceeding under KRS Chapter 202A or (2) To facilitate the procedure established in subsection (1 ) Nos. 91-5502; 94-6376 Gall v. Parker 113 Although the court makes reference to the fact that defendant is very dangerous, incurable, and needs to be confined for the rest of his life, that is by no means the compelled result of the Kentucky civil involuntary hospitalization proceedings that will be conducted 22 years after the crime was committed. One can imagine the first thing the defendant will offer in his defense to hospitalization is that the jury found him to be sane, the state contended he was sane, and he, himself, never claimed to be insane. The defendant went so far as to act as his own counsel for much of the trial because he did not agree with his lawyer’s urging of an insanity defense. Unless you can commit a n involuntarily in Kentucky for being “crazy like a fox,” there is no guarantee that Gall will not walk away a free man as a result of this decision. Although I have started my dissent by drawing attention to the possible dire consequences of the court’s decision, this is not the basis of my dissent. Sometimes, as Judge Jones goes to great lengths to point out, judges just have to let the chips fall where they may. At the risk of pushing a metaphor too far, the “chips” in this case are irom a tree that does not need to be chopped down. After analyzing defendant’s claims of error as they relate to the guilt phase of the trial, the court rejects the majority of them, including the claim that Gall was not competent to stand trial. I agree with all of those sections of the court’s of this section, the court may order the detention of the defendant for a period of ten (10) days to allow for proceedings to be initiated against the defendant for examination and possible detention pursuant to the provisions of KRS Chapter 202A or 202B. Ky. REV. STAT. ANN. § 504.030. 114 Gall v. Parker Nos. 91-5502; 94-6376 opinigh and will only address the findings with which I take issue. I begin with what I believe to be the key hoiding in the courts opinion and the one which I believe is most Clearly erroneous. The court concludes that it was the government’s responsibility to prove the absence of extgeme emotional distress as an element of the offense charged.” The cours then compounds its error by concluding that mental illness equates with “extreme emotional disturbance” for urposes of the Kentucky murder statute. The applicable Kentucky statute reads in pertinent part: 507.020 Murder (1) A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person or of a third eTson; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s Situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a Prosecution for or preclude a conviction of manslaughter in the first degree or any other crime[.] “This conclusion is also the lynchpin of the court's double jeopardy analysis. Thus, if this conclusion is wrong, the double jeopardy analysis is also wrong, and retrial would not be barred. Nos. 91-5502; 94-6376 Gall v. Parker 115 Ky. REV. STAT. ANN. § 507.020(1)(a). Nothing in the statute suggests that negating extreme emotional distress is an element of the crime of murder, or that mental illness, short of legal insanity, is a defense. That the court’s reading of the statute is erroneous is demonstrated clearly by the Kentucky Supreme Court’s holding in Wellman v. Commonwealth, 694 S.W.2d 696, 697-98 (Ky. 1985). The contention that mental illness and extreme emotional disturbance are one and the same is without merit. Prior to the adoption of KRS 507.020 (murder) © and KRS 507.030 (voluntary manslaughter), the differentiating standard between the two, under the common law, was “sudden heat and passion.” The principal change in the statute does not lie in the difference in the definitions between “sudden heat and passion” and “extreme emotional disturbance,” if there is such. It lies in the fact that the former requires adequate provocation in the eyes of a reasonable man under the circumstances, while the latter requires the jury “to place themselves in the actors’ position as he believed it to be at the time of the act.” Gall, supra, at p. 108. Thus, the per application, and point thereof, of mental illness, ike intoxication on alcohol or drugs, is in the test of the effect thereof in considerir:z such factors as events, acts or words as they relate to ‘he particular defendant who contends that he was under extreme emotional disturbance at the time of ‘sis act. In short, mental illness may be considered by the jury in the reaction by a particular defendant when there is probative, tangible and independent evidence of initiating circumstances, such as provocation at the time of his act which is contended to arouse extreme emotional disturbance. It is not such a disturbance when standing alone. Id. (emphasis added). Stated another way, and relating the above to the facts of this case, the “defense” or mitigation exception provided for 116 Gall v. Parker Nos. 91-5502; 94-6376 in the Kentucky murder statute comes into play only a showing of “provocation,” with the significant factor being that the jury must evaluate provocation oy the eyes of the defendant. If the defendant has a mental illness such that he will see “provocation” where a normal person might not, the jury has to consider this deficiency on the part of the defendant.” This is a far cry from the court’s holding here that extreme emotional disturbance is at all times an element of the offense of murder that has to be negated even when there is no claim of “provocation” or other “initiating circumstances,” much less evidence of it. On this latter point the Kentucky Supreme Court in Gall’s appeal specifically held: While it is true that the “extreme emotional disturbance” phase of the murder instruction did not include the additional Statutory language, “the reasonableness of which is to be determined from the standpoint of a person in the defendant’s circumstances as the defendant believed them to be,” we are of the opinion that the omission was proper. Obviously that particular language is appropriate only when there is evidence suggesting that the emotional disturbance was precipitated ty some event or circumstance the defendant believed to exist. In this case there was no evidence to Suggest that the appellant’s motivation involved any “belief” on his part with regard to the circumstances that induced the alleged emotional disturbance. Ratliff v. Commonwealth, Ky., 567 S.W.2d307 (1978), is factually distinguishable in this particular respect. Gall v. Commonwealth, 607 S.W.2d 97, 109 (Ky. 1980). Spy “provocation” I do not mean to imply that the victim has to have done something to provoke the defendant. Although such might be the case as in the classic shooting of a spouse found in with another, the term, in this context, would include such claims by a defendant as “God told me to shoot this person.” Nos. 91-5502; 94-6376 Gall v. Parker 117 The United States Supreme Court in a case involving this same Kentucky statute stated: At trial, petitioner attempted to establish the affirmative defense of “extreme emotional disturbance.”* He called as his sole witness a social worker, Martha Elam, who formerly had been assigned to his case. At the request of petitioner’s counsel, she read to the jury from several reports and letters dealing with evaluations of petitioner’s mental condition. On cross-examination, the prosecutor had Elam read another progress report made while petitioner was institutionalized. The prosecutor then sought to have Elam read from a report ofa aaa 0 evaluation made by Doctor Robert J. G. Lange while petitioner was within the jurisdiction of ms — court ae — for Poore’s ong ae unsel for petitioner prosecutor jointly moved the juvenile court to order this evaluation under Ky. Rev. Stat. §§ 202A.010-202A.990 (1977), which, at the time, governed involuntary hospitalization for psychiatric treatment. *At the time of the offense, the settled law in Kentucky was that this defense was available only where the defendant established two elements: that the defendant had been provoked, and that the defendant had acted in a subjectively reasonable way given this provocation. See Gall v. Commonwealth, 607 S.W.2d 97, 108-109 (Ky. 1980); Wellman v. Commonwealth, 694 S.W 2d 696, 697-698 (Ky. 1985). The defendant has the burden of production on this defense, see Gall, supra, at 109, which cannot be established simply by a showing of mental illness, see Wellman, supra, at 697. Buchanan v. Kentucky, 483 U.S. 402, 408-11 (1987) (emphasis added) (some footnotes omitted). In reaching its conclusion relative to the Kentucky murder statute, the court misreads Ratliff v. Commmonwealth, 567 S.W.2d 307 (Ky. 1978), and Edmonds v. Commonwealth, 586 S.W.2d 24 (Ky. 1979). {18 Gall v. Parker Nos. 91-5502; 94-6376 The defendant in Ratliff believed there was a conspiracy against her, and that the retail store clerk she shot and killed was part of the conspiracy. Appellant believed the store clerk was a conspirator against her. She testified: “. - - Charlie Gilbert went up and told that woman at the store, the one I shot: he went up there and told her not to sell me nothing out of the store....” “They watched me, yes, and t smart with together there and I thought they was going to j me.” Appellant told state police detective Bellamy, That lady (the victim) looked at me as if she was going to pull my ir.” A llant had been on medication and had been visiting the local Comprehensive Care Center for some time prior to the shooting for treatment of her mental condition. Ratliff, 567 S.W.2d at 309. In Ratliff there was also sychiatric evidence that the defe i schizo negating extreme emotional disturbance as a mitigating factor. : g this point, the court in Ratliff stated: In the case presently before us, the prosecution carried the burden to satisfy the jury of the absence of extreme Nos. 91-5502; 94-6376 Gall v. Parker 119 emotional disturbance as statutorily defined. The defendant carried the burden to convince the jury that she was legally insane at the time of the commission of the offense. KRS 504.020. If the jury had a reasonable doubt that the defendant had been proved not to have acted under the influence of extreme emotional disturbance for which there was a_ reasonable justification or excuse under the circumstances as she believed them to be, the punishment they could otherwise assess for murder could have been miti igated by a finding of first degree manslaughter. Of course, ifthedefenseof — legal insanity had been believed by the jury the result would have been complete exculpation and not mitigation of punishment. Id. at 309-10 (emphasis added). Even under these circumstances, three of the seven Kentucky justices dissented. The language in the dissent is illuminating: There is no doubt that Clarsie [the defendant] was suffering from a mental disease. She was classified by a psychiatrist as a schizophrenic paranoid. oer testified that she might commit a similar ‘chan and again. If an iota of evidence existed that Chenile oes acting under extreme emotional disturbance I would join the majority in saying that she was entitled to an instruction on first-degree manslaughter. I do not believe it is the function of this or any appellate court to embark on a crusade to find errors where none exist. Id. at 310. At the risk of stating the obvious, the disagreement between the majority and dissent did not involve whether extreme emotional disturbance was an element of the crime of murder, but, rather, notwithstanding that defendant suffered from a serious mental illness, was there a factual predicate, i.e., provocation, sufficient to even require the jury to look at the killing through the eyes of the defendant. 120 Gall v. Parker Nos. 91-5502; 94-6376 Similarly, in Edmonds the defendant, who had a “psyc ic condition,” was infatuated with the woman he murdered. In describing the circumstances immediately surrounding the murder the court stated: “The appellant dcandentt wan jealous of Betty [the victim] and on this teful afternoon was laboring under the impression that she a going out with another man.” Edmo , 386 S.W.24d at As in Ratliff, the issue in Edmonds was the trial court’s failure to give a first-degree murder instruction. In finding error in the failure to do so, Edmonds is totally consistent with Ratliff. The predicate, the delusion that the victim was seeing another man, was present and, when coupled with the defendant’s mental condition, would i eJjury to look at the murder through the eyes of the defendant. a Suggestion that the 12-year-old girl, who Gall raped and then shot, somehow in Gall’s eyes had done something to provide “a reasonable explanation or excuse” for his actions. One additional Kentucky case is worthy of mention although it must be read against the backdrop of the other conclusion that the decision in Gall, as it related to the extreme emotional disturbance defense, resulted in an x post facto violation since both cases were decided after the date of Gall ’s offense. Nos. 91-5502; 94-6376 Gall v. Parker 121 Kentucky cases which make it clear that the extreme emotional disturbance language in the murder statute is a term _ of art and is not intended to apply whenever a person, in the abstract, may be emotionally disturbed as that term is commonly understood. In Coffey v. Messer, 945 S.W.2d 944, yan (Ky. 1997), the court added further clarification to this scussion: Although we have occasionally described EED as a mitigating circumstance, e.g., Gall v. Commonwealth, Ky., 607 S.W.2d 97, 108 (1980), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. denied, 450 U.S. 989, [ ] (1981), it is, in fact, a defense to the extent that its presence precludes a conviction of murder. KRS 507.020(1)(a). We have often characterized EED as a defense, and it is referred to as a “defense to the crime” in the mitigating circumstances section of our capital penalty statute. KRS 532.025(2)(b)2. Once evidence is introduced to prove the presence of EED, its absence becomes an element of the offense of murder. Gall v. Commonwealth, supra, at 109. As with other penal code defenses, the Commonwealth then assumes the burden of proof on the issue but is not required to produce direct evidence of its absence. Matthews v. Commonwealth, Ky., 709 S.W.2d 414, 421 (1985), cert. denied, 479 U.S. 871, [ ] (1986). Evidence of EED entitles the defendant to an instruction on the lesser included offense of first-degree manslaughter. KRS 507.030(1)(b). Although a lesser included offense is not a defense within the technical meaning of those terms as used in the penal code, it is, in fact and principle, a defense against the higher charge. Gall v. Commonwealth, supra, at 108; Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257 (1977). ... Id. at 945-46 (footnote omitted) (emphasis added). Coffey is significant for another reason. It makes clear that when a defendant introduces evidence that he was acting under extreme emotional disturbance, it is not a defense 122 Gall v. Parker Nos. 91-5502; 94-6376 which could result in an acquittal, but only a defense that allows the defendant to have the jury instructed on the lesser included offense of first-de manslaughter. Even he wasn’t entitled to it, Gall received the benefit of such an instruction. In short, the trial court actually proceeded as if it were a case in which the defendant was entitled to the instruction on the lesser included offense. Having found the prosecution failed to prove an element of the offense, the majority next addresses the finding to the contrary by the Kentucky Supreme Court (section III B 2c of the court’s opinion). The court concludes that the Kentucky Supreme Court’s decision violated due process by shifting “the burden to defendants to produce evidence of emotional disturbance.” There are several things wrong with this conclusion. First, what the Kentucky Supreme Court actually said was: There is much to be said for the proposition that an emotional disturbance inhering in a raental illness is not the kind of an emotional disturbance contemplated by the Statute, in view of its historical development and the expression in the Commentary to the effect that it may be aroused by “any event, or even words,” as quoted above. Assuming, however, that a mental disorder, whether or not it amounts to legal insanity, may constitute a reasonable “explanation or excuse” for extreme emotional disturbance, it was incumbent upon the trial court to require the negating of that factor in its instruction on murder, which was done. Gall, 607 S.W.2d at 109 (emphasis added). This was the holding of the Kentucky court. Here, the majority, which quotes this portion of the Kentucky opinion, leaves out the language concerning the historical development of this section and then goes on to quote and rely upon language in the Opinion that is clearly dicta and not controlling in this case. Nonetheless, the Kentucky court clearly found that the view of the statute which makes negating extreme emotional disturbance an element of the Nos. 91-5502; 94-6376 Gall v. Parker 123 crime of murder was the one taken by the trial judge, and that this was demonstrated by the instruction the trial judge gave to that effect. Stated another way, assuming arguendo that the Kentucky Supreme Court in Gall’s direct appeal did place an interpretation on the murder statute that differed from the interpretation it was previously given in Railiff and its progeny, it makes no difference because the trial court proceeded in a manner consistent with Ratliff. I say “assuming arguendo” because one must not lose sight of the fact that the Kentucky court in Gall concluded that Ratliff was “factually distinguishable” and, as I have pointed out earlier, such was indeed the case. In addition to being based upon a misinterpretation of the Kentucky murder statute as well as the case law interpreting that statute, the majority’s conclusion will not stand up under logical analysis. For example, if a person is charged with murder under the Kentucky statute and all that is offered by way of defense is a claim by the defendant that he was in another state at the time of the murder, there would be no need for the prosecution to offer any evidence of the defendant’s mental state. Yet, if, as the majority claims, the absence of extreme emotional disturbance is an element of the crime of murder it would have to be proven in ail cases. To merely state this proposition is to show its absurdity. When all of the aanaeier cases dealing with the Kentucky murder statute are read, both those that precede Gall’s crime and those that follow, it is clear that when “extreme emotional disturbance” is referenced in the same breath with “element,” all that is intended is that once a defendant provides the necessary evidentiary predicate, the prosecution has the burden of proof on that issue. Thus, the court’s analysis concluding that the Kentucky Supreme Court viol due process, proceeds from an erroneous premise as to what the court actually ruled relative apart ys: sang de tener ne at ben earlier cases. The trial judge, in fact, proceeded in a manner consistent with 124 Gall v. Parker Nos. 91-5502; 94-6376 what the majority contends was the then-existing law and instructed the jury appropriately. In a case in which there is a claim of acting under extreme emotional disturbance and an insanity defense, the difference between the two must be kept clear. The facts surrounding the murder are key to the extreme emotional disturbance defense. The facts surrounding defendant's mental disease or defect are key @ the insanity defense. This distinction is critical in this case. Everyone would agree that Gall had mental problems: and had previously been institutionalized. Yet, Gall presented nothing that would require or permit the jury to see the crime through his eyes because “no reasonable explanation or excuse” was offered as is required by the statute. At the risk of repeating myself, there has to be something either done by the victim or inherent in the circumstances Surrounding the murder that would arouse After erroneously concluding that the prosecution failed to prove an element of the crime of murder, the court then goes on to further find Gall was insane when the crime was committed 22 years ago. This finding is made without any discussion of what must be shown under Kentucky law to establish the defense. In Kentucky, a defendant o ering an insanity defense bears the burden of proof. The relevant Kentucky statutes provide: 500.070 Burden of proof; defenses (1) The Commonwealth has the burden of proving every element of the case beyond a reasonable doub except as provided in subsection (3). This provision, however, does not require disproof of any element that is entitled a “defense,” as that term is used in this code, unless the evidence tending to support the defense is of such probative force that in Nos. 91-5502; 94-6376 Gall v. Parker 125 the absence of countervailing evidence the defendant would be entitled to a directed verdict of acquittal. (2) No court can require notice of a defense prior to trial time. (3) The defendant has the burden of proving an element of a case only if the statute which contains that element provides that the defendant may prove such element in exculpation of his conduct. Ky. REV. STAT. ANN. § 500.070. 504.020 Mental illness or retardation (1) Aperson is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or retardation, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (2) As used in this chapter, the term “mental illness or retardation” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. (3) Adefendant may prove mental illness or retardation, as used in this section, in exculpation of criminal conduct. Ky. REV. STAT. ANN. § 504.020. The commentary to § 504.020 states: The section also adopts the prior law which governed the burden of proof on the issue of insanity. Previously the defendant pad to bear that burden; and, subsection (3) of this section continues to require that the defendant prove his insanity. In concluding Gall was insane, the court relies upon statements by two psychiatrists concerning Gall’s existing 126 Gall v. Parker Nos. 91-5502; 94-6376 mental condition who never unequivocally said that, on the day of the murder, Gall either didn’t understand what he was doing or, if he did, that he was unable to resist the impulse to violate the law. There is no doubt that the “mental disease or defect” prong of the insanity defense was Satisfied, but a er of Gall’s mental condition on the of the murder was never presented to the jury with any of certainty, or in a form they would compelled to accept. Upon cross-examination by the prosecutor, Dr. Noelker, the defense expert, was unable to specify even one event which might have caused Gall to leave the state of remission he was in and suddenly become legally insane at 8:00 a.m. on the day he murdered Lisa Jansen. Noelker also admitted that because of Gall’s claimed amnesia, his mental condition on the day of the murder was difficult to ascertain. Although the majority concludes on the basis of the expert testimony that Gall was insane on the day of the rape and murder, the jury certainly was not ryan to reach that conclusion. As the Ken, icky cen urt points out in its lengthy opinion affirming Gall’s conviction, this was an unusual trial in many respects, not the least of which was that Gall acted, at least in part, as his own counsel. The Kentucky court found, and I agree, that some of the so-called bizarrg trial tactics indulged in by Gall were actually very clever. The jury had an opportunity to observe the defendant in action in a manner seldom afforded to juries in criminal cases, much less those in which an insanity defense is offered. There is absolutely no rule of law, evidence, or rocedure, which would have compelled this jury to find Gall insane. Neither does common sense compei that result. In addition to seeing Gall in action, the jury heard from several persons who had a chance to observe Gall and his demeanor within hours of the murder. The jury was entitled to credit this “ shot” of Gall and conclude that he appreciated the crianinatiny of his conduct and was able to resist the impulse to commit the murder if he had chosen to do so. 7 Gall has an 1.Q. of 124. Nos. 91-5502; 94-6376 Gall v. Parker 127 Il. The court also concludes, as another ground for reversing Gall’s conviction, that egregious prosecutorial misconduct occurred. I respectfully disagree first note that the court’s decision to acquit the defendant by reason of insanity subsumes all other errors unless they relate to Gall’s insanity defense. Thus, the focus, insofar as alleged prosecutorial misconduct is concerned, must be on the alleged acts of misconduct which bore on the insanity defense. The court does point to several comments made by the prosecutor in closing argument, but in each and every instance the remarks are taken out of context and ignore the very essence of the way this trial unfolded. Although not always the case, generally when a defendant offers an insanity defense there is little doubt that he committed the crime and the insanity defense is his last resort. Such is the case here. Gall never made a believable claim of innocence, and the majority opinion does not even hint at innocence. Therefore, it is understandable that under these circumstances the tor would bring out his heaviest artillery and direct it at the insanity defense. This certainly is not a license to make i arguments, but the arguments that were made have to be viewed against the backdrop of the nature of the insanity defense in this case. To begin with, there is no doubt given Gall’s history that any health professional brought in to testify would indicate Gall suffered from a mental disease. This explains why the — did not offer additional psychiatric testimony, a act that the majority seems to find significant. But just as there are many schizophrenics who function day-to-day in society and commit no crimes, there are schizophrenics who, at the time they commit a crime, or esphe 2: s t from wrong and are not acting under an irresistible impulse. In this case, the prosecution’s theory was that Gall was faking the inability to remember the events surrounding Lisa Jansen’s death. This point is worthy of further elaboration. 128 Gall v. Parker Nos. 91-5502; 94-6376 as the ig Segrsed of the store robbery and police officer’s shooting took place shortly after the time of Lisa’s murder. oma eae rect my epee | him and remembered shooting the state trooper, but indi he could not recall his actions immediately before that. The circumstantial evidence tying him to Lisa’s murder was very a Under these circumstances, it should not be surprising that the prosecution felt this was a very convenient case of amnesia and ray eer Into this mix came Gall’s participation in his own trial. It is clear that Gall was seekin to get a full acquittal on the merits, even though his counse was relying on an insanity defense. This working at cross purposes was further evidence in the eyes of the prosecutor insanity was a sham defense in this case. Gall was doing his best to show the jury he was sane and innocent, while the experts called by his attorney were trying to show he was insane. The testimony of the experts thus became critical. Although the prosecutor’s attacks on their testimony may have been inartful and at times even inappropriate, they were all for the se of trying to keep the jury from confusing the fact that Gall had a mental disease with the conclusion that as a result he was legally insane—a very legitimate 7 As the no gee Court stated in Barefoot v. Estelle, 463 U.S. 880, 898 (1983), “[p]sychiatric testimony predicting gerousness may be countered not only as erroneous .. . but also as generally so unreliable that it should be ignored.” To the degree that the prosecutor committed the “I believe” sin, it was clearly harmless error. This was not a case ofa prosecutor vouching for some government agent or secret informant’s credibility, but, rather, of a prosecutor commenting on the testimony of experts in a field in which the ad knew the prosecutor had no special expertise. In light of the jury’s extensive opportunity to see Gall in action, the jury was in a far better position than is usual in a case involving an insanity defense to weigh the testimony of the experts in the context of all the other relevant facts. Althou the prosecutor arguably erred when he urged the jury to not let Nos. 91-5502; 94-6376 Gall v. Parker 129 Gall return to society, the jury was already aware that a verdict of not guilty by reason of insanity would have its consequences. re, the prosecutor did not overstate the consequences. As I pointed out earlier, in any post-trial civil commitment proceeding the test is not whether the defendant was insane when he committed the crime, but whether he is insane now. As the Kentucky Supreme Court stated in Gall’s appeal: “it cannot be truthfully said that he will be committed, because if he is sane enough to be ernie in the trial there is very little likelihood of his ing validly found insane immediately thereafter.” Gall, 607 S.W.2d at 111 (emphasis in original). On direct , the Kentucky Supreme Court thought so little of the allegations of prosecutorial misconduct that it spent little or no time in discussing them. Now, on habeas review, with its narrower scope, the majority finds these unobjected to instances of prosecutorial conduct to be sufficient to require a reversal. This hardly affords the decision of the state court the deference that is due. ITI. I now tum, to the best of my ability to follow it, to the tortured path followed by the court to reach its conclusion that there was a violation of Gall’s Sixth Amendment confrontation rights sufficient to mandate an acquittal. The government presented the testimony of its only mental health professional, Dr. Chutkow, by videotape deposition. We were not told why this was done. It is clear from the record, however, that Gall’s counsel informed the court that if the prosecution did not offer Dr. Chutkow’s testimony, he would. In any event, the court concludes that any claim of error was procedurally defaulted and that Gall cannot show cause for the default. Nonetheless, the court then goes on to find the circumstances here qualify for the “fundamental miscarriage of justice” exception because “the Confrontation Clause violation clearly stood in the way of an acquittal for reason of insanity.” This result-oriented conclusion simply won’t hold water. Not speaking pejoratively, I use the term “result- 130 Gall v. Parker Nos. 91-5502; 94-6376 oriented” because the court had to find a way to keep this defendant in custody after vacating his murder conviction, and this was the vehicle for doing so. It was not the strategy of the government to try to find someone who would say that Gall was a perfectly normal human being. The government was content to counter the defense experts with the facts of the case and what the jury would learn for themselves from observing the deft t. Contrary to what the court concludes, the defendant was better off having Dr. Chutkow testify by deposition than in person. His deposition testimony, which was limited to his involvement in the competency phase of the trial, was of little value. So much was this the case that I firmly believe the defense decision not to raise an objection to the videotape deposition was a strategic decision and a good one to boot. Dr. Chutkow could only have made his testimony more valuable to the government if he had testified in person. As the court points out—ironically it seems to me—Dr.Chutkow’s testimony was of little or no value on the issue of insanity. Nonetheless, the court would elevate its ae through the bald and erroneous conclusion that “Dr. Chutkow provided the only evidence rebutting [the] showing of insanity.” This statement shows that, once again, the court simply misses the mark. There were no witnesses to the rape and murder or to Gall’s claimed amnesia. The jury was free to draw its conclusion on the issue of insanity fhoan (1) its impressions of Gall’s demeanor; (2) testimony from lay witnesses about Gall’s emotional and mental state near the time of the crime; (3) expert testimony offering post-hoc clinical conclusions as to Gall’s general mental an emotional condition; and (4) conflicting opinions as to the genuineness of Gall’s amnesia. Gall’s claim of amnesia was critical to his insanity defense, and a rational trier of fact need not have credited this claim. * Significantly, the court rejects Gall’s claim of ineffective assistance of counsel. Nos. 91-5502; 94-6376 Gall v. Parker 131 Gell was s pensuold echdaoyboente, be bled dation opie’ was a ; a of remission in which he understood the criminality of his actions and was not acting pursuant to an irresistible impulse. In sum, it is impossible to conclude that the jury gave undue weight to Dr. Chudkow’s testimony since all he said was that Gall was competent to stand trial, and the jury observed that for themselves. As the court concludes, the Confrontation Clause issue has been procedurally defaulted and not only has cause not been shown for the default, but, rather, a good reason why the issue was never raised is apparent. only “fundamental miscarriage of justice” that has occurred is the court’s conclusion that despite the be verdict to the confrary, Gall must be found not guilty by reason of insanity. ii UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 91-5502; 94-6376 EUGENE WILLIAMS GALL, JR. Petitioner- Appellant, V. PHIL PARKER, Warden, Respondent- Appellee Before: MARTIN, Chief Judge; JONES and GUY, Circuit Judges. JUDGMENT On Appeal from the United States District Court for the Eastern District of Kentucky at Covington. THIS CAUSE was heard on the record from the district court and was argued by counsel IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s denial of petitioner Eugene Williams Gall, Jr.’s petition for habeas corpus relief is REVERSED and the case is REMANDED for proceedings consistent with the opinion of this court. 132 ENTERED BY ORDER OF THE COURT /s/ Leonard Green Leonard Green, Clerk FILED October 30, 2000 Leonard Green, Clerk Eastern District of Kentucky FILED November 1, 2000 At Covington Leslie G. Whitmer Clerk: U.S. District Court 133 91-5502/94-6376 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EUGENE WILLIAMS GALL, JR. Petitioner- Appellant, v. PHIL PARKER, WARDEN Respondent- Appellee. SOO a ae oe oe es a BEFORE: MARTIN, Chief Judge; JONES and GUY, Circuit Judges. The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the Judges having favored the suggestion, the petition for rehearing has been 134 referred to the original panel. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the cases. Accordingly, the petition is denied. ENTERED BY ORDER OF THE COURT /s/ Leonard Green Leonard Green, Clerk FILED February 02, 2001 LEONARD GREEN, CLERK 135 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT COVINGTON CIVIL ACTION NO. 87-56 EUGENE WILLIAM GALL, JR. PETITIONER aq VS. JUDGMENT GENE SCROGGY, WARDEN RESPONDENT Pursuant to the Opinion and Order entered concurrently herewith, : IT iS ORDERED AND ADJUDGED that the petition for writ of habeas corpus be, and it is, hereby dismissed, with prejudice. This 23d_ day of January, 1991. /S/ William O. Bertelsman WILLIAM O. BERTELSMAN , JUDGE Copies to: Edward C. Monahan Eastern District of Kentucky Erwin W. Lewis FILED Frederic J. Cowan January 23, 1991 Valerie L. Salven At Covington—- David A. Sexton LESLIE G. WHITMER CLERK, U.S. DISTRICT COURT 136 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT COVINGTON CIVIL ACTION NO. 87-56 EUGENE WILLIAMS [sic] GALL, JR. PETITIONER VS. JUDGMENT GENE SCROGGY, WARDEN, ET AL. RESPONDENTS ; I. INTRODUCTION Petitioner, Eugene Williams [sic] Gall, Jr., received the death penalty after he was convicted of murder by ajury ina Kentucky trial court. Due to a disagreement with counsel Over trial strategy, petitioner acted as co-counsel during his trial, participating in the cross-examination of witnesses and arguing points of law before the court. The evidence of petitioner’s factual guilt was overwhelming. The only issue of any moment at trial was petitioner’s mental state at the time of the murder. The Kentucky Supreme Court affirmed petitioner’ s conviction on direct appeal. Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980) (Gall }), cert. denied, 450 U.S. 989 137 (1981). Petitioner then sought post-conviction relief in the state courts. The Kentucky Supreme Court also denied post- conviction relief. Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985) (Gall Il), cert. denied, 478 U.S. 1010 (1986). The case is now before this court for habeas corpus review. 27 U.S.C. §2254. Petitioner raises twenty-five assignments of error, many of which contain multiple arguments as grounds for relief. Having thoroughly reviewed the entire record and each of petitioner’s arguments, the court finds that there are no valid grounds for habeas corpus relief because each of petitioner’s numerous Claims is either barred - by Teague v. Lane, 109 S.Ct. 1060 (1989) and Penry v. Lynaugh, 109 S.Ct. 2934 (1989), waived, or without merit. Only the most significant of these assignments of error are discussed in more detail below. Il. FACTUAL BACKGROUND AND REVIEW OF EVIDENCE A. Background Part of the background facts of this Case were ably presented by the Kentucky Supreme court in Gall 1. The court there stated as follows: 138 “At about 7:35 a.m. on April 5, 1978, Lisa Jansen, a 12-year-old schoolgirl, left her home in suburban Cincinnati, Ohio, for school. She was missed very shortly thereafter when she failed to arrive at the home of a friend she had planned to meet on the way and it was ascertained that she had not gone directly to school. At about 9:25 a.m. that morning Mrs. Connie Puckett, while driving her automobile along Kentucky Highway 16 from Verona, Kentucky, toward her home in Walton, Kentucky, noticed a red jacket lying on the side of the highway near the intersection of Stephenson-Mill Road. She stopped and retrieved it, thinking that probably it belonged to one of the students attending the elementary ‘school at Verona. She was positive that the jacket had not been there when she passed the same place a few minutes earlier on her way to Verona. Upon resuming her trip homeward she observed an open schoolbook lying im the road, _ Stopped and picked it up. It bore the name of Lisa Jansen, and when Mrs. Puckett arrived back in Walton she telephoned the school at Verona. The school principal advised her that no one by the name of Lisa Jansen was enrolled there, but later m the day he called back and told Mrs. Puckett that a television newscast had reported a Lisa Jansen as missing. Mrs. Puckett then reported her discovery of the jacket and the schoolbook to the Cmcmnati police. 139 The distance from Lisa’s home in Ohio to the Kentucky state line at Cincinnati was 10.9 be miles, and from the state line southward via 4 Interstate 75 to the place near Stephenson-Mill : Road where her body was found the next morning is 22.6 miles. Gall resided at ig Hillsboro, Ohio, about 45 miles the other side of 4 the Jansen home. ; At about 10:45 a.m on April 5, 1978, a man later identified as the appellant, Gall, entered a small grocery store at the cross-roads village of Gardnersville, 17 miles or so by public roads from the vicinity of Stephenson- Mill Road (which consists of a loop leading off and then back to Highway 16), and robbed the Storekeeper and her customers at the point of a .357-gauge magnum stainless-steel revolver. The storekeeper, who was familiar with this type of weapon, observed from the exposed portions of the magazine that it was loaded with hollow- point cartridges. As soon as the robber left, she telephoned the local headquarters of the Kentucky State Police and reported the incident. Within a matter of minutes Gall was encountered by Detective Joe Whelan, who turned around and followed, and then by Trooper Gary Carey, who had alighted from his cruiser and was attempting to block the highway. As Carey signalled the driver to halt Gall shot him once, got out of the Ford and shot him again, and then sped onward with Whelan 140 emptying his gun into the rear of the fleeing car. Almost immediately other police officers took up the chase, and Gall was finally brought to bay when he attempted to make a U-turn in the town of Dry Ridge and one of the troopers rammed his cruiser into the Ford. The .357 revolver was lying on the floor of the Ford. Also on the floorboard of the Ford automobile the officer found a cigar box and $112.88, the money taken at the store in Garnersville. Gall had the further sum of $42.84 on his person. Subsequent laboratory tests established that a bullet removed from Trooper Carey’s person had been fired from the revolver found in Gall’s automobile. Shortly following his arrest, Gall, by reason of his police record, became a suspect in connection with the disappearance of Lisa Jansen. In 1970 he had been charged with several counts of rape and armed robbery in southern Ohio, had been found mentally incompetent to stand trial, and had spent some 19 months in a mental institution at Lima, Ohio, after which he entered a plea of guilty to those charges and spent five years in a state penitentiary at Lebanon, Ohio. He was 31 years of age at the time of Lisa Jansen’s murder.” While petitioner admitted recalling the road block, car chase, and shooting the trooper, he claimed to have amnesia for a 141 period of several hours beginning from the time he drove onto an exit ramp in Ohio to enter the highway that morning. 4 TE Vol. Il, pp. 300, 304-05 (Toppen); id., Vol III., pp. 449- 456 (Chutkow).' Petitioner was indicted and arraigned for the murder of Lisa Jansen on April 27, 1987 [sic]. TR Vol. 1, p. 1. Also op April 27, 1978, Dr. Robert Noelker, a clinical psychologist appointed to assist the defendant, and Dr. Lee Chutkow, a psychiatrist appointed by the court to assist the court, were appointed to examine petitioner to determine his competency to stand trial and to determine his mental state on April 5, 1978. Id., pp. 24, 30-31. B. Competency to Stand Trial Dr. Noelker had first examuned petitioner on April 13, 1978. After his appointment by the court, he continued to examine and observe petitioner from that time throughout trial, which began on September 19, 1978. Dr. Noelker administered several tests to petitioner. On the intelligence test, petitioner scored in the top 2% to 4% of the population. ‘Citations to the transcript of the trial coun proceedings are designated “TE.” Citations to the state court record on direct appeal are designated “TR.” 142 Petitioner’s Minnesota Multiphasic Personality Inventory (MMPI) test results indicated a schizophrenic personality disorder, paranoid type. TE Vol. XIII, pp. 1848-61. During petitioner’s examination on April 30, 1978 by Dr. Chutkow, Dr. Chutkow recommended to petitioner that he undergo “narcoanalysis” due to his amnesia. In this procedure petitioner would have been injected with sodium amylobarbitone, colloquially referred to as “truth serum,” so that he would relax his mhibitions and hopefully discover what he could recall for the period of several hours for which he had no memory. Petitioner initially agreed, but five days later when he returned for the procedure in the presence of Dr. Chutkow and Dr. Noelker, petitioner disclaimed knowing the doctors. He claimed he was a prisoner of war, and refused to take the test on the ground that it violated his rights under the Geneva Convention. Id., Vol. XIII, pp. 1923-27 (Noelker); TR VoL III, pp. 480-83 (Chutkow). The issue of petitioner’s competency to stand trial was first addressed in a hearing on May 26, 1978. Petitioner testified at the hearing. Dr. Noelker testified that petitioner was in remission from the time that MMPI was administered 143 through the hearing and that he was “absolutely convenced [sic]” and satisfied “beyond a reasonable psychological doubt” that petitioner was competent to stand trial. Dr. Noelker also testified that the amnesia claimed by petitioner is rare in personality disorders of this type, but that he had no opinion whether the amnesiac state claimed was feigned or real. Two reports of Dr. Chutkow were admitted into evidence indicating his opinion that petitioner was competent and characterizing the POW incident as “playing a role.” Based on his observation of petitioner’s demeanor and the opinions of the doctors, the court found petitioner competent to stand trial. TR Vol. I, pp. 35-38; id., Vol. II, pp. 188-195, 199-203, 211, 213-17. In July, 1978, petitioner wrote the court to request that he be committed to a state hospital for the purpose of a thirty- to-ninety day period of observation. He complained that he had asked his trial counsel to do the same but had received no reply, and asked the court to hold a hearing to address this issue and “several motions concerning my defense, and/or lack thereof.” Id. Vol. II, pp. 235-36. These motions were te withdrawn by petitioner at the pretrial hearing. Id., p. 237; Tr. [sic] Pre-Trial Hearing, pp. 2-3. The issue of petitioner's competency was also raised in the pretrial hearing on September 13, 1978. Dr. Noelker testified that petitioner remained competent to stand tal. With petitioner’s consent, Dr. Noelker addressed the court out of petitioner’s presence. Dr. Noelker again stated that “there is absolutely no question in my mind” that petitioner is competent, but related his concern that petitioner was becoming more “disorganized” and “anxious” and that the stress of the trial could cause petitioner to regress and become imcompetent. He stated that he had “a feeling that the” POW incident was a feigned experience, but again stated that he had no concrete evidence to conclude whether the incident was feigned or not. Tr. [sic] Pre-Trial Hearing, pp. 6-16. os Gall’s Decision to Participate in His Own Defense. Voir dire began on September 19, 1978. On the morning of September 23, 1978, petitioner informed the court that although he had no dispute with his attorneys, he wished 145 to take a more active role in his defense by questioning and cross-examining witnesses. TE Vol. VII, p. 946. A hearing was held out of the presence of the jurors where petitioner explained, under oath, that he understood his decision could result in destroying his insanity defense and losing the trial. Id., pp. 948-57. Dr. Noelker then testified that he was concerned that petitioner had become delusional, but gave his “tentative” opinion that petitioner was still competent to stand trial on that day. Id., pp. 958-60. On the second day of the actual guilt phase of the trial, the issue of petitioner’s competency was again raised. At sidebar, defense counsel raised the motion on information they had just received from Dr. Noelker, who had been observing the proceedings. Id., Vol. VII, p. 1135. At an in- chambers hearing, Dr. Noelker testified that he believed defendant was incompetent because the results of more recent testing showed petitioner’s schizophrenia had “intensified” and because petitioner had told the doctor that he questioned and wanted to reject the use of the insanity defense, and wanted to actively participate in his defense. In Dr. Noelker’s opinion, this evidenced delusional thinking, and prevented him from rationally choosing between alternatives and assisting to his defense. Id. pp. 1137-42. Petitioner testified under oath at the hearing as follows: “Mr. Gall: _. . .1 believe with all my heart that the present line of defense is in error at this particular point. Insanity, to me-should not be brought out until later on. But the whole line of questioning so far or lack of questioning has been to present the issue of insanity and insanity only... . Judge Neace: What do you think the defense at this point should concentrate on Mr. Gall? Mr. Gall: I think the defense at this point your Honor, should concentrate on the evidence as is heard. Grant it here is an awful lot of the evidence but it is also circumstantial and circumstantial means that it is not hard evidence and some of the evidence may be overcomed [sic] in the juries [sic] mind based on what the prosecution has already brought out and may be [sic] they can associate this time [sic] of evidence with the defense line. ** * * * Judge Neace: If I am understanding you correctly, you are saying that at this point in the trial that it would be vour idea to concentrate or cross-examine the witnesses and try to create in the minds of the Jury through the 147 cross-examination doubt about the believability of their testimony? Mr. Gall: Not the believability of the testimony Your Honor, but the weight to be given to the evidence. i, Judge Neace: Or [sic] the weight. oe Mr. Gall: Yes sir. , -. Judge Neace: Gentlemen, that is a perfectly valid approach to this case. ... B *_* *£ *& & "a If I understand Mr. Gall, I think he is saying let’s forget about the insanity until our turn comes . . . that is a defense, it has nothing to do with the Commonwealth’s case, the presentation of it. Mr. Zevely: That is right. There is no inconsistency in insanity defense and the defense that he did not do it. You don’t have to... They are not mutually exclusive by any stretch of the imagination and he knows that. Judge Neace: Absolutely, what he just said is that we ought to concentrate now on whether or not he did it. . . '_. We will worry about the exculpatory defense, if you please the insanity when we get ready to put on the defense proof. That is what he said to me... . Js that right, Mr. Gall? Mr. Gall: Yes sir.” Id., Vol. VIII, pp. 1147-52. “(Mr. Zevely)Q. Eugene, are you handling your own defense because at this time you believe yourself to be more competent to present to the Jury in cross- examining these witnesses than Mr. Berger or myself? A. In certain respects, yes. 148 Q. Okay, explain that. A. I feel that primarily Mr. Berger is concerning himself with the second phase and not the first phase, as I understand it and you have concerned yourself [sic] with the first phase primarily but also primarily in the realms of insanity as a defense and the primary defense. Q. Okay, so you would feel more competent at this point to present your defense of not guilty period than I could - you think you are more competent to do that than I am? A. Correct. Q. Okay, you have discounted the defense of insanity? In other words you don’t think it is worth putting forth at all, is that correct? A. At this point that would be correct. Q. And you know that you have been diagnosed paranoid schizophrenic, is that correct? A. Correct. Q. And you know what the people at Lima have diagnosed you and what they have said and what Doctor Noelker has said, is that correct? A. Yes sir. Q. And in spite of knowing all of this, you feel that in essence the defense of insanity should not even be raised. A. Yes sir. * * * * * (By Mr. Mathis) Q: Mr. Gall, one further question. Only you lived through April 5, 1978, do you believe that you were insane on that day? 149 A. I do not believe that I committed that crime. I couldn’t have committed it. Q. I didn’t ask you about the commission of the crime. Do you in face believe that you were legally insane as you have heard Dr. Zevely define it in voir dire examination on that day, in your own personal opinion? A. Grant it there is a period which I cannot remember what transpired, but as far as legally insane, no, I was not legally insane. Q. Is that why you don’t feel it is an appropriate defense in your case? A. No, I feel the reason that it is not appropriate is because by the evidence that the Jury will hear will tend to show or at least put some doubt, reasonable doubt in their minds as is necessary that I did not commit the crime.” Id., pp. 1159-61. The trial judge found that in his “own personal assessment” petitioner “exhibited quite Clearly to me an understanding of the nature and the proceedings and the seriousness of the proceedings and my personal belief is that he is extremely capable of assisting his counsel.” Id., p. 1167. In an “abundance of caution,” however, the trial judge had petitioner examined by another psychiatrist that evening. Id. 150 The following morning, outside the presence of the jury, Dr. Kenneth Lanter testified that he had examined petitioner for forty-five minutes the night before and examined Dr. Chutkow’s first report. Dr. Lanter concluded that petitioner was competent to stand trial, and that he was competent to make the decision to participate actively in his defense. Id., pp. 1192-1200; id., Vol. IX, pp. 1201-08. The trial judge found that petitioner understood the nature and consequences of the proceedings against him and was capable of assisting counsel and participating rationally in his own defense. Id., p. 1208. D. Evidence That Gall Killed Lisa Jansen The circumstantial evidence produced by the state to establish that petitioner committed the killing is overwhelming. The evidence placed petitioner near the area where the victim’s body was found around the time of the murder, and identified petitioner as the person who robbed the store. See id., Vol. VII, pp. 1078, 1084-86; id., Vol. VIII, pp. 1078, 1084-86; id., Vol. VIII, pp. 1087-98; id., Vol. IX, pp. 1221-29, 1257-59, 1268, 1286-92, 1300-02, id., Vol. X, 151 pp. 1412-14, id., Vol. XII, pp. 1664-67. The gun found on petitioner at the time of his arrest was identified as the gun used by petitioner when he robbed the store. Id., Vol. IX, pp. 1232-36, 1244-47, 1277-79. a Ballistics tests identified the bullets recovered from the bodies of the police officer and the victim as being shot from petitioner’s gun. Id., Vol. XII, p. 1719-36. Red nylon carpet fibers from the car petitioner was driving matched the red nylon fibers found on the victim’s clothing. Id., pp. 1772-75. Petitioner’s car had three “Uniroyal G78-15 steel-belted radial” tires and one “Atlas G78-15 ordinary” tire. Several impressions of tire tracks taken from the area where the victim’s body was recovered were made by Uniroyal-type tires as those on petitioner’s car. Id., pp. 1708-18; id., Vol. XI, pp. 1522-26. The semen stain found on the front seat of petitioner’s car and the semen samples from the victim were consistent with a person with petitioner’s blood type having had sexual intercourse with a person of the victim’s blood type. Id., Vol. XII, pp. 1760-67, 1771. A long hair was recovered from petitioner’s car. The 152 hair and the blood on it was consistent with the victim’s hair and blood type. Id., pp. 1768-71. E. Insanity Defense Petitioner sought to establish that he was insane on April 5, 1978, through the live testimony of Dr. Robert Noelker, and through the deposition of Dr. John Toppen, a psychiatrist retained by petitioner’s family. Id., Vol. XIII, pp. 1823, 1835. The prosecution presented the lay testimony of the arresting officers and eyewitnesses to the robbery that petitioner appeared quiet, not excited, not nervous, and had steady hands and a normal voice. Id., Vol. IX, pp. 1231-34, 1238, 1256. The prosecution also presented the videotape and written transcription of the deposition of Dr. Lee Chutkow on rebuttal. Id., Vol. XIII, p. 1939. Throughout his habeas pleadings, petitioner argues that the evidence of his insanity or extreme emotional disturbance was “uncontroverted” and “overwhelming.” Petitioner’s characterization of the evidence is unsupportable. Rather than being “uncontradicted” or “overwhelming,” the evidence of his mental state on the morning of April 5, 1978, was inconclusive and conflicting. 153 For example, the experts were in agreement on several points. Of those asked, they agreed that it is possible for two psychiatrists to review the same data and examine the v same patient and arrive at different conclusions. Id., Vol. 4 XIII, pp. 1882-85 (Noelker); TR Vol. II, pp. 294-97 a (Toppen). Dr. Noelker and Dr. Chutkow agreed that it is i. “extremely difficult” if not “virtually impossible to render a diagnosis of a person’s mental state on a particular day where the person claims amnesia surrounding the very time period in question and where they had not interviewed the people who saw that person during that time, on that day, or during the weeks or months preceding that day. TE Vol. XIII, p. 1924-27 (Noelker); TR Vol. III, pp. 458, 470-71, 485-90, 493-94 (Chutkow). The experts also agreed that the MMPI results indicated schizophrenia of a chronic nature. The doctors agreed that as a general matter this type of mental illness can be accompanied by a loss of contact with reality, hallucination, and inability to control one’s behavior, but that even though labeled “chronic,” the illness can be accompanied by periods of “remission.” F inally, they also 154 agreed that it is rare, although not impossible, for a person with this illness to develop amnesia. An amnesiac state could be brought about by many things, for example, by a trauma such as a head injury, committing a heinous crime, or being arrested and charged with a heinous crime, or by an acute schizophrenic state. TE Vol. XIII, pp. 1855, 1867, 1880-91, 1905-07, 1916 (Noelker); TR Vol II, pp. 279-82, 286 (Toppen); TR Vol III, pp. 486-71, 474-78 (Chutkow). In contrast, the doctor’s testimony is conflicting concerning petitioner’s state of mind during the hours of April 5, 1978 for which petitioner had no memory, concerning the nature of “remission,” and concerning the POW incident. In Dr. Toppen’s opinion, petitioner’s lack of recall and decision to act as co-counsel evidenced that he was ina _ state of distorted reality, even though his high I.Q. would make him “appear to be more normal than he really is.” Dr. Toppen concluded that because defendant evidenced distorted thinking “it is also both possible and likely” that petitioner was in a psychotic paranoid schizophrenic state at the time the crime was committed and unable to conform his 155 conduct to the law because of this condition. TR Vol. IL, p. 279-86, 292-93. He also stated that there was no “question whatever” in his opinion that petitioner was acting under the influence of an extremely disturbed mind on April 5, 1978. Id., pp. 290-91. He explained that the rationale for his on conclusions was that even though there can be periods of | “remission,” chronic schizophrenia is never completely curable and only appears “better or worse” and that to the extent any person with this illness conforms his conduct to any law, such conformity is a mere coincidence. Id., 291-92, 313, 319-20, 326-30. He regarded petitioner’s amnesia as consistent with this particular mental illness. Id., pp. 282-83. While Dr. Noelker conceded that throwing a victim’s clothes along the road and robbing a store in an isolated area were consistent with an attempt to escape, he was of the opinion that petitioner lacked the capacity to confirm his conduct to the law and acted under the influence of extreme emotional disturbance as a result of a psychotic compulsion due to his schizophrenia and was not in remission on April 5, 1978. He explained the rationale for his conclusion was that if petitioner had committed the crime in the manner indicated 156 by the evidence, petitioner would have been “home free” and had “no reason to run.” TE Vol XIII, pp. 1880-81, 1911-16. He also testified that while this type of illness “never really goes away” petitioner could have periods of remission at which time he would be “perfectly legally sane.” Without having seen petitioner on that morning, he did not know whether petitioner was in a state of remission or not. Id., pp. 1885, 1888-90, 1917-20, 1931-32. He also conceded that the test results indicating petitioner manifested chronic paranoid schizophrenia could have been a consequence of being incarcerated and charged with rape. Id., 1890-91. He testified that refusing to submit to the injection of sodium amytal is as consistent with an attempt to escape detection as it is with a “very disturbed mind which is extremely afraid of remembering things which are very painful” and that he could not formulate an opinion whether the POW incident was feigned. Id. 1926-27. Dr. Chutkow repeatedly testified that [he] did not see petitioner for the purpose of making a diagnosis, nor did he direct his evaluations and examinations of petitioner to determine his state of mind on April 5, 1978. TR Vol. III, pp. 157 - 445, 450, 463. Dr. Chutkow could not Say with certainty whether petitioner was sane during the period for which he claimed amnesia because petitioner’s lack of memory precluded ascertaining the facts. In his Opinion, however, “I can rule out acute schizophrenia in the hours preceding” the murder. Id., pp. 472, 488-89 (emphasis added). Dr. Chutkow was presented a lengthy hypothetical situation that completely incorporated all of petitioner’s past psychological history and the crimes with which he was currently charged, and asked whether those facts taken as true “would change your mind as to whether or not this man is a candidate for the condition that you have described as a paranoid schizophrenic?” Id., pp. 469-70 He replied “No. I don’t feel he was schizophrenic during the hours preceding his arrest. He may certainly have been at the time of those examinations and that was eight years ago, or seven years ago.” Id., p. 471 (referring to petitioner’s 1970 arrest and commitment to Lima State Hospital for the Criminally Insane) (emphasis added). He explained the reason for his conclusion as follows: 158 “I asked him what he was doing in the hours prior to the beginning of the amnesia and he told me a fairly realistic coherent account of him going toward -- I will have to quote from my notes here, driving from one city in Ohio to another city where he was to work, to study some medicare payments to a nursing home. This was his explanation, his goal was to get there and do this realistic task and he described the routes he took. | asked him if he remembered anything at that time and then I recorded proposed sometimes [sic] of schizophrenia which are typical symptoms including symptoms that he was being followed, persecuted, spied upon, plotted against, him feeling he was hearing voices, commanding him to do something, feeling that of under somebody’s control, his thoughts were stolen from-him, these are the classical symptoms of schizophrenia and he had none of these nor did he claim that he couldn’t remember what he was thinking. He was thinking realistically about his job that he had to do, to go to the nursing home the next day and acquire some data. So, from what he told me there, I could disown [sic] no symptoms of schizophrenia for those hours before. Nor even from the dates prior to this, he had held a job, he claimed to be getting along well in his community. | believe he had a girlfriend that he was planning to marry and I received nothing from him at that examination indicative of schizophrenic symptoms, nor did he have them afterwards, after he was arrested and put in jail. He was in jail three weeks 159 or so in the cell and he developed none of these symptoms there.” Id., pp. 456-57 (emphasis added). Dr. Chutkow disagreed with Dr. Toppen’s statement that as a general matter persons with this type of disorder can never conform their conduct to the law. He stated: “My experience is quite | the other way, it is my experience in examining and treating many chronic schizophrenic individuals who are functioning in communities, working in jobs and undergoing treatment and certainty are consciously doing knowingly and accurately and correctly conforming with the law in the vast of their daily lives.” Id., p. 459. When asked if a cause of amnesia is a paranoid schizophrenic state, Dr. Chutkow replied it “is one of them, it is not the most common nor the most intense” and “I have seen very few in my experience of paranoid schizophrenics who have had a sudden gap of [a] couple hours which they are totally amnesiac. Most schizophrenics I have seen who have amnesia recall the things they have done which can include criminal behaviors, partially are denying their total responsibility or denying feeling anything about it or denying 160 the previous acts, but it [is] not just a complete blank which he presented to me.” Id., p. 474. Dr. Chutkow believed that petitioner’s amnesia was a conscious decision to tell nothing of the hours preceding his arrest, because of his “awareness of the consequences of his disclosure to an arresting officer or a psychiatrist or a jury, assuming trial.” Id., pp. 491-492. Dr. Chutkow further testified that acting as a POW was not a manifest sign of petitioner’s paranoid | schizophrenia because “I have never seen a schizophrenic do this. He is denying the complete situation that he had previously, a few days earlier, agreed to. In my experience, this did not happen with that degree of suddenness in this type of situation,” id., p. 482, and because acting in this behavior is “a very different role in personality and different environment that what there is, this is not a characteristic of schizophrenia. It is used [sic] to be considered a hysterical _ type of personality.” id., p. 483. He stated that it is unusual for a layman to assume active management of his defense, but that “it seems to-be more done now in a daze, whether it is by schizophrenia or it is by people who feel they can’t trust their lawyers, the 161 lawyers feeling they are not competent, . . . but I can’t say whether it is the psychotic grandiosity or a very shrewd attempt to save himself of [sic] serious consequences.” Id., pp. 477-78. lil. ANALYSIS A. Competency to Stand Trial In assignment of error #3, petitioner raises three arguments: the trial judge erred in finding him competent to stand trial; the trial Judge erred in failing to Sua sponte hold a mid-trial evidentiary hearing after viewing petitioner conduct portions of his defense; and that the trial judge erred in allowing petitioner to act as co-counsel, when it was “clear” petitioner was incompetent, and without conducting a more thorough inquiry whether petitioner understood the effect his decision may have on his insanity defense or in mitigation. The test for whether petitioner was competent to stand trial is whether he had the “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as 162 factual understanding of the proceedings against him” Dusky v. United States, 362 U.S. 402 (1960). The test used by the Kentucky courts and the trial judge is similar: a defendant must have a “substantial capacity to comprehend the nature of the consequences of the proceeding pending against him and to participate rationally in his own defense.” Commonwealth v. Strickiand, 375 S.W.2d 701, 703 (Ky., 1964); see also e.g.., Pate v. Smith, 637 F.2d 1068, 1071 (6th Cir. 1981). In determining whether a failure to conduct a competency hearing sua sponte amounts to constitutional error, the standard of review is whether “‘a reasonable judge, situated as was the trial court judge whose failure to conduct . an evidentiary hearing is being reviewed, should have experienced doubt with respect to the competency to stand trial.” Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.), cert. denied, 461-U.S. 916 (1983); see also Pate, 637 F.2d at 1072. ‘Finally, in determining whether allowing a defendant to “manage” his own defense is constitutionally infirm, the test is whether petitioner “knowingly and intelligently” 163 — insisted on acting as co-counsel, thereby partially foregoing the “right to counsel:” “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self- representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Faretta v. California, 422 U.S. 806, 835 (1975). The Sixth Circuit has noted that the standard of competency to waive counsel is “vaguely higher” than the standard of competency to stand trial. United States v. McDowell, 814 F.2d 245, 250 & n.2 (6th Cir.) (citing Westbrook v. Arizona, 384 U.S. 150 (1966), and Konigsberg v. Vincent, 526 F.2d 121 (2nd Cir. 1975), cert. denied, 426 U.S. 937 (1975)), cert. denied, 484 U.S. 980 (1987). Neither Westbrook, McDowell, or Konigsberg define the “vaguely higher” standard. The Ninth Circuit adopted Westbrook’s “higher” standard in defining the competency necessary to enter a guilty plea, and defined the standard as whether “a mental illness has substantially impaired [defendant’s] ability to make a reasoned choice among the alternatives present 164 [sic] to him and to understand the nature of the consequences of his plea.” Sielig v. Eyeman, 478 F.2d 211, 215 (9th Cir. 1973); see also Heral v. Franzen, 667 F.2d 663, 637-38 (7th Cir. 1981) (rejecting two different standards for guilty pleas and competency to waive counsel). In the context of this case, Sieleg’s higher standard would be defined as whether petitioner’s mental illness substantially impaired his ability to make a reasoned decision between having his counsel rely solely on the insanity defense or to pursue a reasonable doubt theory as co-counsel with the attendant possible consequences of acting as co- counsel would have. The premise underlying each of the arguments in this assignment of error, and the premise underlying Dr. Noelker’s and Dr. Toppen’s opinions on competency, is that although on the surface petitioner appeared competent, his disagreement with defense counsel over focusing solely on the insanity defense and his preferred defense strategy of focusing on raising a reasonable doubt as to the factual guilt as well, was entirely irrational, manifesting “delusional thinking” — a “break from reality.” Therefore, they [sic] 165 reason petitioner was incompetent to stand trial or to knowingly and intelligently chose [sic] to insist on Bs) participating as co-counsel in the defense. The trial judge’s conclusion on competency to stand a trial, which implicitly also finds petitioner competent to make the decision to assist in his defense, see TE Vol. IX, p. 1207- 09, is entitled to the presumption of correctness under §2254(d), unless the finding is not fairly supported by record. E.g., Demosthenes v. Baal, 110 S.Ct. 2223, 2225 (1990); Chapin v. Marshall, 704 F.2d 335, 337 (6th Cir. 1983), cert. denied, 464 U.S. 1047 (1984). The trial judge was in a position to observe petitioner’s demeanor while testifying and acting as co- counsel. Based on the previous review of the evidence as set forth above, and based on this court’s review of the entire record, there is ample support in the record for the judge’s conclusion, regardless of whether a “vaguely higher” standard is required for his competency to make the decision to act as co-counsel. The written record reflects that petitioner, who tested as highly intelligent, had much more than a substantial 166 capacity to consult with his attorneys, psychiatrists, and the court with a rational understanding. It reflects that he understood all too well the nature of the proceedings against him. Specifically, he understood the various trial strategies from which to choose, the interrelationship between the guilt phase of the trial and the sentencing phase, and the bearing that extreme emotional disturbance/insanity would have at _ sentencing. He advocated an entirely valid approach and fully understood the consequences that his acting as co- counsel could have on his extreme emotional disturbance/insanity defense. See e.g., Blackmon v. Armontrout, 875 F.2d 164, 166 (8th Cir.), cert. denied, 110 S.Ct. 337 (1989); McDowell, 814 F.2d at 249-50; Chapin, 704 F.2d at 337; Williams, 696 F.2d at 466-67; Owen v. United States, 660 F.2d 696, 702 (6th Cir. 1981). Neither petitioner’s two questions of the state trooper and pathologist on cross-examination (as described below) standing alone, nor these questions in conjunction with his other question on cross-examination or other evidence of his mental state are sufficient to have raised a reasonable doubt in the mind of the trial judge of petitioner’s competency, 167 thereby necessitating a second mid-trial competency hearing to be called sua Sponte. E.g., Williams, 696 F.2d at 467: Owens v. Sowders, 661 F.2d 584, 586 (6th Cir. 1981). On one occasion, petitioner asked pathologist if the retina takes a picture of that which a dying person last sees; on another, he also accused a state trooper of shooting Lisa Jansen. With respect to the pathologist, it is plain that the question was designed to test the pathologist’s knowledge: “[Petitioner]Q: Dr. Jolly, you testified about your medical training and your medical experience, do you also subscribe and read various amounts of medical publications? A: Intermittently, yes. sir. | Q. Okay, during the readings of these medical journals or medical publications have you ever known of a procedure or read about a procedure in which you can take the eye from a person and put a camera up to the retinal [sic] or the lens of the eye and photograph what that eye last saw by the impressions left on the back of the eyeball which would be I believe the retina. Are you area of that procedure? A: I have heard of this theory and it is completely erroneous. Q: That is all.” 168 TE Vol. XI, p. 1610. As respondents point out, the procedure was unsuccessfully employed by Scotland Yard in 1888. Respondents’ Reply, p. 29 n.2. With respect to the state trooper, the last witness of that day of trial, petitioner cross-examined the witness extensively, and elicited that the officer carried the same type of gun which was capable of firing the same type of bullets found in petitioner’s car. ’ Petitioner’s final question to the trooper summarized this evidence and in quintessential Perry Mason fashion, stated “I charge you with shooting that second shot through Smith & Wesson Revolver .357 using a .38 caliber bullet to put that second one in to use as evidence. No further questions, Your Honor.” TE Vol. X, pp. 1491. At that point, it had not yet been established when the two gunshot wounds had been inflicted. This statement merely made explicit what was implicit in petitioner’s previous line of questioning: someone else could have committed the murder. It was not until later in the trial that the pathologist testified the wounds had been inflicted within the same time frame. Id., Vol. XI, p. 1601; see also Gall I, 607 S.W.2d at 106 n.1. 169 Finally, habeas counsel argues that the trial judge failed to take all of the steps necessary to ascertain that petitioner “knowingly and intelligently” made the decision to act as co-counsel because, while counsel questioned petitioner[:] “an on-the-record sufficiently thorough inquiry by the trial judge did not take place. Gene Gall testified that the dangers of representing himself were explained to him. ... What were these dangers? The trial judge did not explain any dangers to Gall with any thoroughness. At best, the trial judge merely asked Gall if he understood the danger of acting as his own lawyer might cause the defense of insanity. Nobody explained to Gall the dangers related to the mitigation of sentence insanity could play in the penalty phase and the dangers of an increased sentence due to his self-representation. The extreme emotional disturbance defense was never discussed.” Brief for Petitioner, p. 79. Habeas counsel explains that the trial judge should have told petitioner that “objectively, [he] was severely undercutting the defense of insanity or waiving it by his representation of himself.” Id., p. 80. There was no need for the trial judge to have spoken these exact words to petitioner. Petitioner was examined extensively on two occasions regarding his decision. A 170 1. age aa Noe fg _ t pig review of the record discloses that not only did the trial judge reiterate the same after defense counsel elicited that petitioner realized he was on trial for murder facing the death penalty and could “lose” if he acted as co-counsel, but that petitioner fully understood the importance of the role extreme emotional disturbance/insanity would play during the sentencing phase. The record discloses that petitioner was competent to make his decision and did so with his eyes open. Accordingly, the court finds that assignment of error #3 is without merit. B. Extreme Emotional Disturbance Petitioner argues that the Commonwealth failed to prove the lack of extreme emotional disturbance beyond a reasonable doubt. The concept of “lack of extreme emotional disturbance” is peculiarly a matter of Kentucky law. Apparently, the concept is intended to modernize the jurisprudence of common law manslaughter. Gall I, 607 S.W.2d at 109; see also, Wellman v. Commonwealth, 694 S.W.2d 696, 697 (Ky. 1985). 171 The Kentucky Supreme Court dealt with this issue in q Gall I. The court finds no federal constitutional deficiencies a in the Kentucky Court’s analysis. Accordingly, the court : finds that assignment of error #7 is without merit. C. Insanity Petitioner argues that the evidence establishes by a preponderance of the evidence that he v as insane when he / committed the murder. Petitioner bears the burden of proof of his insanity. Chaney v. Rees, No. 86-5940 (6th Cir. 1987) (unreported) (finding habeas court applied incorrect standard in finding burden rested with Commonwealth of Kentucky to prove sanity beyond a reasonable doubt; “[t]he prosecution’s . Tesponsibility, in responding to Chaney’s evidence of insanity, was to create an issue of fact for the jury as to his Sanity, not to establish his sanity beyond a reasonable doubt.”’). Petitioner first argues that lay testimony “should be considered worthless” because these witnesses were unfamiliar with petitioner’s background and habits and they were not concerned with petitioner’s sanity when observing him, citing United States v. Burks, 547 F.2d 968 (6th Cir. 172 1987), rev’d, 473 U.S. 1 (1978); United States v. Smith, 437 F.2d 538 (6th Cir. 1970); and Graham v. Commonwealth, 420 S.W.2d 575 (Ky. 1967). He also argues that this court must not consider the testimony of Dr. Chutkow, since his examination and testimony was limited to the issue of competency and not sanity. The foregoing is not a correct statement of the reviewing posture of this court on habeas corpus. This court must view the evidence and the inferences to be drawn therefrom in the light most favorable to the prosecution. Any conflicting inferences arising from the record must be resolved in favor of the prosecution. Additionally, it is beyond the province of this court to weigh the credibility of witnesses. The jury’s resolution of questions of credibility and demeanor are entitled to special deference, and credibility conflicts must be resolved in favor of the prosecution. See e.g.., Patton v. Young, 467 U.S. 1025 (1984); United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.), cert. denied, 476 U.S. 1123 (1986); Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985); Walker v. Engle, 703 F.2d 959, 969 (6th Cir.), cert. denied sub nom, Walker v. 173 Marshall, 464 U.S. 962 (1983); Stacy v. Love, 679 F.2d 1209 (6th Cir.), cert. denied, 459 U.S. 1009 (1982); Scott v. Perini, q 662 F.2d 428, 432 (6th Cir.), cert. denied, 456 U.S. 909 : (1981). | Viewing the evidence on this issue, the inferences to be drawn therefrom, and the credibility conflicts among the experts in the light most favorable to the prosecution, the a ae > we a+ et et el “a on court concludes that any rational juror could have found that petitioner failed to show by a preponderance of the evidence that he was insane when he murdered Lisa Jansen. The jurors were not required to accept the experts’ opinions that petitioner was acting under delusions or distorted thinking at the time of the murder. Instead, the jurors could have made their decision solely based on the testimony of the witnesses who observed petitioner immediately following the murder during the robbery and his arrest; based on the circumstances Surrounding the murder, such as the body being placed on a secluded spot and the victim’s belongings thrown alongside the road; based on the undisputed evidence of petitioner’s high intelligence; and based on petitioner’s demeanor during trial, in which he 174 behaved in a rational, professional, and highly competent manner. The two isolated instances of conduct that the jurors would have been during trial that petitioner cites elsewhere in his brief as evidence of his incompetency, when viewed in context, amount to nothing more than “melodramatic” flair in petitioner’s style for ending cross-examination. See, supra, pp. 22-23; Gall I, 607 S.W.2d at 105-06. Any reasonable juror could have concluded that petitioner had the intelligence to analyze his position and to fabricate the amnesia and POW incident in an effort to prohibit the prosecution or his experts from obtaining information which could be used against him. Any reasonable juror could have also concluded that petitioner’s motive for acting as co- counsel was to bolster his insanity defense. See Maupin v. Smith, 785F.2d 135, 140 (6th Cir. 1988). Furthermore, even assuming that the jurors accepted the diagnosis of paranoid schizophrenia, the experts agreed that amnesia was rare among schizophrenics or that the stress of the murder itself could have brought on the state of amnesia. They all testified that paranoid schizophrenia can 175 be accompanied by periods of remission even if diagnosed as “chronic.” In pinpointing petitioner’s mental state on April 5, 1978, Dr. Toppen reasoned that because petitioner’s decision in September to act as co-counsel was “delusional,” then he also must have been delusional the preceding April. Dr. Noelker reasoned that petitioner must not have been in a period of remission in April because petitioner had “no reason” to run from a crime to which here was no eyewitnesses. On the other hand, Dr. Chutkow testified that while he could not be certain of petitioner’s mental state during the murder and that he did not test petitioner for sanity purposes, he ruled out any manifestation of acute schizophrenia immediately preceding the period during which petitioner claimed amnesia. This conclusion was based on the fact that the information petitioner did remember in the hours and months preceding did not display any classical symptoms of schizophrenia. Nor did he observe any symptoms of acute schizophrenia in petitioner three weeks later, after having been under the stress of arrest and incarceration. To the extent the jurors credited any of the expert testimony, any 176 rational juror could have credited Dr. Chutkow’s opinion concerning petitioner’s mental state as more credible indicia of petitioner’s mental state during the murder. Petitioner also argues that he is entitled to a judgment of acquittal because the only competent experts who testified as to his sanity (his own) testified that he was insane. Dr. Chutkow proffered some opinions on this subject, but had not reviewed all the pertinent records. The problem with this argument is that the burden of proof on this issue was on petitioner. Insanity was an affirmative defense. Therefore, the jury could reject the testimony [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1103%3A2. Public record. Not legal advice.