By Kimberly Atkins
The Daily Record Newswire
BOSTON — Can a common practice in criminal defense trigger constitutional protections when it’s suddenly changed?
The justices of the U.S. Supreme Court didn’t seem to think so, at least in the context of Metrish v. Lancaster.
In that case, the court is being asked to decide whether a ruling by the Michigan Supreme Court abolishing the diminished-capacity defense can be applied retroactively to a defendant without violating his due process rights.
The trouble for the defendant is that the defense, although used repeatedly for years, was never formally adopted by the state Legislature or appellate courts.
“It’s not enough to show that Michigan law seemed to be what you say it was,” said Justice Antonin G. Scalia during arguments. “It has to have been what you say it was.”
Burt Lancaster — a former Detroit police officer, not the actor — was charged with first-degree murder and firearm offenses after he shot and killed his girlfriend in a Southfield, Mich., shopping center parking lot in 1993.
Lancaster, who had a long history of mental illness, presented a diminished-capacity defense at trial, but the jury still convicted him on all counts. That verdict was later reversed after Lancaster successfully lodged a Batson challenge.
At his retrial 10 years later on the same charges, Lancaster once again raised the diminished-capacity defense. But in between the two trials, the Michigan Supreme Court decided the 2001 case of People v. Carpenter (627 N.W.2d 276), which abolished the defense, so the trial court barred Lancaster from raising it.
After losing an interlocutory appeal on the matter, Lancaster opted for a bench trial and was again convicted on all counts and sentenced to life imprisonment plus two years.
After exhausting his state court remedies Lancaster sought habeas relief in federal court, arguing that the state trial court retroactively applied a substantive change in state law in violation of the Due Process Clause.
The district court denied his petition. Because the defense had never been codified by the Legislature or formally adopted by the state’s highest court, it was not a well-established law that could be the basis of a due process violation, the court ruled.
But the 6th U.S. Circuit Court of Appeals reversed, holding that the diminished-capacity defense was well established in Michigan and therefore the retroactive application of Carpenter was unconstitutional. The Supreme Court granted the state’s petition for certiorari.
The state argued that the only way for a law to be well-established is for state lawmakers to say that it is.
“For over 200 years, [Michigan] has been a code jurisdiction,” argued Michigan Solicitor General John J. Bursch. “So only the Michigan legislature had the
power to add a diminished capacity defense.”
Although a 1973 Michigan Court of Appeals case, People v. Lynch (208 N.W.2d 656), recognized the defense as a matter of common law, a 1975 statute adopted by the legislature overrode that ruling when it “established all the comprehensive defenses available, and left out diminished capacity,” Bursch said.
But Justice Elena Kagan pointed out that the defense was being proffered routinely until the state court decision held that it couldn’t — a ruling that could be interpreted as the kind of “unexpected” ruling that could trigger habeas relief when applied retroactively.
“It’s rare for a court to reverse a decision on what a statute means,” Kagan said.
“If you had an ambiguous statute, yes, then maybe there would be uncertainty,” Bursch said. “But here you’ve got a statute that enumerates several defenses and does not include diminished capacity. Under Michigan law, [if] it’s not enumerated, it’s not there.”
Justice Sonia M. Sotomayor asked whether the statute’s omission of the defense is “any less ambiguous merely because a court announces that it thinks it’s not.”
As Bursch started a discussion of the appellate court’s reasoning, Scalia jumped in to help him.
“I thought your argument is: ‘It’s clear because it’s clear!’” Scalia said.
“That was my second point,” Bursch said.
“It should have been your first point,” Scalia said. “The premise is simply wrong. You’re saying it was clear because the statute’s clear.”
Kenneth M. Mogill, a partner in the Lake Orion, Mich., office of Mogill, Posner & Cohen, argued on Lancaster’s behalf that Michigan allows room for the common law.
“Michigan recognizes the common law in its constitution,” Mogill said. And Lynch “firmly established that the diminished capacity defense existed.”
But Scalia said it wasn’t enough for a case to merely mention a defense.
“What case has a holding — a holding — that diminished capacity excuses the crime or mitigates the crime?” Scalia demanded.
Mogill said Lynch fit the bill by finding that “mental health evidence of the kind [the defendant] wanted to offer, was admissible to establish a diminished capacity. … Once that case was decided, there is one direction only in Michigan law from 1973 until Carpenter, by surprise, in 2001.”
Justice Stephen G. Breyer echoed Scalia’s questions seeking to determine how “established” the defense was in common law.
“How many holdings are there [establishing the defense]?” Breyer asked.
“There are many mentions,” Mogill began.
“I take it the answer is zero, right?” Breyer said, later referring to cases such as Lynch as “The Great Mentioners” rather than binding precedent.
“We’ve noticed The Great Mentioner is often wrong,” Breyer said.
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