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The Crank Defense and the Fifth Amendment

As bad as insanity defenses usually are, the "too drunk to form intent" excuse belongs in a lower pit of judicial hell.  For noncapital cases, at least, some states have abolished this defense altogether, and one such statute was upheld (with a little help from yours truly) in Montana v. Egelhoff, 518 U.S. 37 (1996).  Experts who testify for this defense seem to misunderstand how rudimentary the mental states of intent and premeditation really are.  Some of them seem to think these are very high cognitive levels, such that only philosophers can commit first-degree murder.  If a squirrel buries a nut, he does it on purpose and not by accident.  That is intent.  He intends to dig it up later and eat it.  That is premeditation.  How impaired does a homo sapiens have to be before his cognitive ability falls below the capacity to form such rudimentary thoughts?  A human who is too drunk, stoned, or whatever to form intent is probably passed out on the floor and unable to commit the actus reus.

In mental defense cases, the defendant's mind is part of the crime scene.*  The prosecution has to be able to inspect it, i.e., conduct its own mental examination.  In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court said that use of a psychological examination ordered by the court in a case where the defendant was not raising a mental defense violates the Fifth Amendment privilege against self-incrimination.  Then in Buchanan v. Kentucky, 483 U.S. 402 (1987), the Court said the prosecution could conduct and use such an examination when the defendant does raise a mental defense.

Where the mental defense is not the affirmative defense of "not guilty by reason of insanity" but instead the "too intoxicated to form intent" [or premeditation] defense, does the case come under Smith or Buchanan?  Seems pretty obvious to me that Buchanan governs.  The distinction between an affirmative defense and negating an element of the offense is irrelevant here.  The defendant is claiming that an abnormality in his brain negates his guilt in a case where the objective circumstances would otherwise establish it, and the need for examination of his "crime scene" mind is the same in either case.  Whether that abnormality is the result of permanent disease or temporary substance-induced buzz makes no difference.

The Kansas Supreme Court didn't see it that way Friday in State v. Cheever, No. 99,988. 
Cheever is a crank maker and user.  He shot and killed Greenwood County Sheriff Matthew Samuels, who was serving a warrant for his arrest.  The defense expert testified "that at the time of the crimes, Cheever's drug use had progressed to the point that he had developed neurotoxicity and was showing symptoms of psychosis, evidenced by doing 'really stupid judgment kind of stuff.' "  (I'm generally in favor of less jargon and more plain English, but it is possible to carry that too far.)  The prosecution expert did a fine job of showing how the defendant's actions on the day of the crime demonstrated his capacity to form the requisite mental state.  We need mental experts to put more weight on day-of-crime behavior.  However, the Kansas court concludes,

Accordingly, we find that Cheever's evidence showed only that he suffered from a temporary mental incapacity due to voluntary intoxication; it was not evidence of a mental disease or defect within the meaning of K.S.A. 22-3220. Consequently, Cheever did not waive his Fifth Amendment privilege and thus permit his court-ordered examination by Dr. Welner to be used against him at trial. Therefore, we conclude that allowing Welner to testify in rebuttal to the voluntary intoxication defense violated Cheever's constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution.

This is wrong, IHMO.  Is it reviewable by the U.S. Supreme Court?  I think so.  SCOTUS has jurisdiction to review the decisions of state courts on federal law questions but not on state law questions.  This is a good example of a case where the state law and the federal constitutional issues are "intertwined," which is considered sufficient for jurisdiction.

The Kansas Attorney General's Office is still considering its options.

John Milburn has this story for AP.  The anti-death-penalty person predictably says this "error" shows how flawed the death penalty is.  As usual, it really shows a problem in the review of capital cases.  This should have been an easy affirmance.

* I am indebted to Dr. Park Dietz for this metaphor.


What's particularly sad here is that the family has to go through the whole trial again. Where that's required by law, it's just life, but where a court (likely influenced by its distaste for the death penalty, for a particularly awful example, see what a federal judge did for a killer named Groseclose) is wrong, it's a problem. My guess is that the Supreme Court of Kansas's dislike for the death penalty influenced this decision.

Since the state has the burden of persuasion on mens rea, fairness dictates that the defense shouldn't be able to claim drugs negated mens rea, but the prosecution is forbidden from examining it.

Am I missing something or is this not just obvious?

If you are missing anything, I'm missing it also.

Wow, after reading the opinion the defense witness certainly seems to have testified outside of his scope of expertise.

Kent, are you aware of any other cases that hold that the defendant's age is a jury fact per Apprendi? That's new to me.

I'm not aware of any and didn't find any on a quick look, but if other readers know of any, I'd be glad to hear from them.

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