Even if the defendant's name wasn't Burt Lancaster this would be an attention-grabbing case. Lancaster, a former police officer with a history of mental illness, killed his girlfriend in 1994 in a Southfield shopping plaza parking lot using a gun he stole from his mother. Lancaster admitted the killing but claimed insanity and diminished capacity. The jury rejected both defenses and convicted him of first degree murder. The 6th circuit overturned the conviction based on a Batson error, and Lancaster was retried in 2005. Defense counsel planned to assert diminished capacity alone in the second trial, but the trial court barred that defense because in 2001 the Michigan Supreme Court abolished the diminished-capacity defense in the case of People v. Carpenter, interpreting Michigan's 1975 "Guilty But Mentally Ill" statute. Lancaster was re-convicted and sentenced to life plus an additional two years in prison. On appeal, Lancaster challenged the denial of the defense of diminished capacity. The Michigan Court of Appeals and Supreme Court rejected his challenge, but in a divided 6th circuit panel disagreed. Its holding rests on a finding that the defense of diminished capacity had a well-established "foothold" in Michigan law prior to 2001, and that the 2001 decision was unforeseeable. That conclusion rests in part on this:
The belief that diminished capacity was a legitimate defense was so widely held by the Michigan legal community that, before Carpenter, the Michigan State Bar's Criminal Jury Instructions included an instruction on the defense. Commentary accompanying the instruction noted that "[t]he defense of diminished capacity is available when the defendant's mental impairment leaves him or her unable to form the specific intent needed to commit the crime." Standing Comm. on Std.Crim. Jury Instructions, Mich. State Bar, 1 Mich.Crim. Jury Instructions 6.3, at 6-11 (2d ed. 1994) (This instruction was removed only after Carpenter was decided.).
A dissent by Judge Batchelder says that Lancaster fails to overcome the "very high standard" needed to prevail:
It is indisputable that defendants were able to raise the defense prior to Carpenter, but the availability of the defense alone does not make its elimination unexpected. Indeed, in Rogers, the year-and-a-day rule had been available to defendants for nearly one hundred years, but the Supreme Court nevertheless concluded that its elimination was foreseeable because the rule never served as the basis for a decision in the state and many other states had abolished the rule. In Michigan, diminished capacity likewise never served as the basis for any court's decision. Even in Michigan v. Griffin, 433 Mich. 860, 444 N.W.2d 139 (1989), the Michigan Supreme Court's remand for an evidentiary hearing to determine if counsel was ineffective for failing to raise diminished capacity as a defense reemphasizes only the point that the defense was available. It does not indicate that the defense was so well established that its elimination was unexpected.
Last week the U.S. Supreme Court granted cert on the state's challenge to that decision. (Indiana's attorney general, joined by the attorneys general of Alabama, Arizona, Delaware, Idaho, Kansas, New Mexico, Utah and Washington, filed an amicus brief (PDF) supporting the cert petition.)
The self-described law-and-order Crime and Consequences Blog asks:
Can a state retroactively abolish a defense, even a "partial" defense such as diminished capacity? If it is purely a legislative change, clearly not. That is the heart of the constitutional prohibition of ex post facto laws. A statute enacted after the crime that makes previously legal conduct criminal or increases the punishment of previously illegal conduct cannot be applied. But how about a court's reinterpretation of a previously enacted statute? Tougher question. The Supreme Court has found a due process protection against court-made changes to substantive criminal law, but it is not exactly congruent with the ex post facto rule for statutes.
