Friday, February 1, 2013

Retroactively Outlawing the Twinkie Defense


The “Twinkie defense” refers to a diminished capacity defense, in which a criminal defendant argues that he did not have the requisite state of mind at the time of his crime to be held accountable because of some mental defect or abnormality.  This defense was made famous in 1979, when an official in San Francisco entered the city hall and murdered both the mayor and another city official.[1]  In that case, the defendant claimed a mental defect that caused a depression to form and manifest in an inability to resist eating junk food.[2] 

Nearly fifty years after that famous defense, the Supreme Court will hear a case involving the diminished capacity defense, and efforts to ban its use.  Burt Lancaster was charged for first-degree murder in 1993 in connection with the death of his girlfriend.  Lancaster, a former Detroit police officer, had a long history of mental illness.  In 1994, he admitted at his jury trial that he had killed her, but insisted he had been legally insane or suffered from diminished capacity at the time.  Despite the defendant’s claims, the jury found him guilty.  Following a reversal of his conviction based on problems with jury selection, Lancaster received a second trial in 2005.  For this trial, he waived his right to a jury and instead elected to have a bench trial, presumably because he felt he had a better chance getting the judge to look at the intricacies of the law than a jury.  

Prior to Lancaster’s second trial, the Michigan Supreme Court reviewed the statute[3] that allows defendants to present an insanity defense.[4]  That statute also allowed for a defendant to assert the diminished capacity defense.  The theory of such a defense is that “if because of mental disease or defect a defendant cannot form the specific state of mind required as an essential element of a crime, he may be convicted only of a lower grade of that offense not requiring that particular mental element.”[5]  In People v. Carpenter,[6] the Michigan Supreme Court held that diminished capacity was not permitted under the statutory framework for an insanity defense, even though that statute[7] had been enacted in 1975. 

At Lancaster’s second trial, the trial judge decided that Carpenter applied retroactively; so even though Lancaster was allowed to present diminished capacity as a defense in his first trial, he was no longer allowed to do so in this trial.  Being denied this defense, the defendant was convicted of murder and sentenced to life in prison.  Upon appeal, the Sixth Circuit Appeals Court overturned[8] his conviction in 2012, finding that Lancaster was denied due process of law because he was not allowed to present the diminished capacity defense. 

Because Lancaster appealed under the Anti-terrorism and Effective Death Penalty Act[9], the court could only overturn the conviction upon finding that the trial court’s decision was an unreasonable application of clearly established Supreme Court precedent.  The Supreme Court has certainly agreed that basic due process requires that statutes give fair warning of conduct that will be a crime.  This is generally established precedent that is not particularly controversial.  When a state court unexpectedly overrules a consistent line of decisions in criminal law, then applies that decision retroactively, this will deprive the defendant of due process. 

The problem is that in this case, the statute in question never specifically addressed the defense of diminished capacity.  In fact, the legislature had never addressed diminished capacity, and the Michigan Supreme Court had also never confirmed that it was an acceptable defense.  However, it had been common practice to allow the defense to be asserted at the trial court level.  The appellate courts had in some cases even affirmed that diminished capacity is a legitimate defense available to the defendant.  Because of this, the diminished capacity defense has never been as firmly ingrained in the fabric of the criminal justice system as if it had been established by the legislature, or confirmed by the Michigan Supreme Court.  So did the Michigan Supreme Court change substantive law when it found that defendants could not assert diminished capacity defenses?  Or did it simply finally decide murky area of law that a defendant should have reasonably foreseen could be changed?

For the Sixth Circuit[10] at least, the Michigan Supreme Court changed substantive law.  In its opinion[11], the Sixth Circuit notes that diminished capacity had been asserted as a defense in Michigan since 1973.  Subsequently, the Michigan Court of Appeals held that the statutory framework for the insanity defense included the diminished capacity defense.  As such, according to the Sixth Circuit, the statute enacted in 1975 did not substantially change the recognition of diminished capacity as a defense to criminal prosecution.  The Michigan Court of Appeals, in fact, continued to issue opinions concerning and upholding the use of diminished capacity as a defense through when Lancaster killed his girlfriend in 1993.  Because of these factors, including the Michigan Supreme Court’s implicit recognition of the defense, the Sixth Circuit found[12] that diminished capacity was a consistent line of cases.

The Sixth Circuit next considered whether the decision in Carpenter should have been foreseeable.  The Sixth Circuit found[13] that because the Michigan Court of Appeals had so consistently applied the diminished capacity test without a response from the Michigan Supreme Court, the defendant could not have foreseen that the defense would be overturned by the time he had his second trial. 

Because the Sixth Circuit found all of these things, it also clearly found[14] that the trial court’s decision that Carpenter applies retroactively was an unreasonable application of clearly established Supreme Court precedent.  This seems clearly substantiated if you accept the Sixth Circuit’s argument.  However, while there was a long history of application of the diminished capacity defense, that defense was never as clearly established as the Sixth Circuit claims it must have been.  The Michigan Supreme Court never confirmed that the defense was proper.  The legislature never passed a statute that directly established diminished capacity as a legitimate defense.  While not clearly erroneous, the Sixth Circuit’s opinion[15] is made far less persuasive than had one of these factors been in place.  That said, in this current Supreme Court climate, wherein the Court is understandably wary of applying decisions retroactively, it is hard to argue that the Sixth Circuit’s opinion will be overturned when it is reviewed later this year.

Bonnie Lindemann
Blogger, The Criminal Law Brief

[15] http://www.ca6.uscourts.gov/opinions.pdf/12a0201p-06.pdf

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