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572
IV/GENERAL PRINCIPLES OF DEFENSE
either the common law or the Model Penal Code formulation of the
immaturity defense?
Hypnotizing Bunny
ES
SES SN
SS ESS
SSS ISBT
SP EL
CO ALLE EE ELE
TEE ELE
LEE
Bunny shares a cell with Lane, who is larger and more aggressive.
They have developed a close relationship in which Lane is dominant. The
relationship is built in part upon Lane·s frequent sessions hypnotizing
Bunny. The sessions began as simple entertainment, as a means of killing
time, but have taken on considerable importance. Lane followed the in-
structions in a book that he had ordered through the mail and found
that he could indeed put Bunny into a hypnotic trance. He sometimes
demonstrates his ability to other inmates by having Bunny cut himself.
He also has Bunny climb up on the stairway railing and attempt to jump
over, grabbing him each time before he jumps. Because Bunny works in
the superintendent·s office, Lane decides he can put his power to good
use by having Bunny steal keys and help him escape. Bunny steals the keys,
as Lane directs him to do under hypnosis, but both are
caught
just after
they leave the prison grounds.
Pent
Bunny claims an excuse under the involuntary act defense on
erounds that his theft and escape were the product
of a hypnotic sugges-
tion by Lane. The testimony of the expert witnesses is conflicting. All
agree that Bunny was hypnotized and that Lane apparently did give
Bunny the hypnotic suggestions that he claims. Bunny·s expert testifies
that Bunny would not have stolen the keys or escaped from prison but
for Lane·s hypnotic suggestion. The State·s witness testifies that the
hypnotic suggestion may have created some mild motivation toward
performing as requested·Bunny would have felt very anxious for a
time if he had not complied·but that such was only a minor influence
on Bunny·s conduct in stealing the keys and escaping. Should Bunny
get a defense?
Automatism: Nature of the Defense
G. Williams, Textbook on Criminal Law 608-611 (1979)
Nene
nn
reer eererrn
reece reese cece
SSS SYS
The most prominent
CHAPTER 16
EXCUSES
573
Does Automatism Mean That The Behavior is Virtually
Mindless?
Yes in medical usage, but the legal meaning has developed far
beyond that. The term ·automatism· is used medically only 1
in connec-
tion with epilepsy, and in its proper medical sense it is rare even in
that disease. Although attacks of grand mal very occasionally result in
violence, this is usually not because the sufferer is a complete automaton
but because of confusion or delusion or a rage response. On the lips
of lawyers, however, ·automatism· has come to express any abnormal
state of consciousness (whether confusion, delusion or dissociation)
that is regarded as incompatible with the existence of mens rea,·t while
not amounting to insanity. It would better be called ·impaired con-
sciousness,· but the orthodox expression can be used if we bear in
mind that it does not mean what it says.
Automatism is sometimes regarded as being incompatible not only
with the mental element in crime but with the notion of an act. If it
were
a ·matter of puretheory this co
could be characterized as an unnecessary
refinement, but the ·act· doctrine has the advantage of enabling autom-
atism to be a defense to the charge of an offence of strict liability.
The main instances of automatism are: sleepwalking, concussion,
some cases of epilepsy, hypoglycemia, and dissociative states.
·Say SEGEOIMRTT has ·happened - from time to time that a person
has killed or wounded another with whom he is asleep in bed, or while
walking in his sleep or immediately upon rousing from sleep and while
still in a state of semi-consciousness. Such a person is acquitted of murder
or wounding, but there is no need to base the acquittal upon the absence
of an ··act.··· Clearly the defendant has killed or wounded; it would be a
perversion of language to say otherwise; but
he is acquitted for lack of a
mental-element. Some degree of normality of consciousiessis-essential
for the legal notions of intention, recklessness and knowledge.
The position is not altogether simple, because the acts of a sleep-
walker are in a sense purposive. The sleep-walker does not proceed as
the cartoonists imagine him, with eyes tightly closed and arms out-
stretched. His eyes are open and he appears to be in perfect control.
He will open a door and turn a corner, walk downstairs, open a drawer,
take out a carving-knife, and return to the bedroom where his wife is
asleep. But after waking up he will not remember his bloody deed.
Although his acts have a certain purpose (indeed, he may have an
during sleep or semi-sleep is dissociation, but it is also attributed to
e
+Editor·s Note.·Williams uses
·mens rea· in this passage in its broad sense, i.·.,
to include the absence of excuses.
574
IV/GENERAL PRINCIPLES OF DEFENSE
hypoglycemia and nocturnal epilepsy. Sometimes dissociation results
from brain disease, but more normally it is a hysterical symptom.
The dissociated sleep-walker may act out a subconscious desire, but
is not aware of it; and subconscious. desire does not. engage criminal
responsibility. (There is, of course, a grave ·danger of the defence
being feigned.) .
(b) any This is temporary damage to the brain resulting
from a blow, and may produce a confusional state. It is accepted as
justifying an ordinary acquittal.
(c) Epilepsy, though not classified as a psychosis, is certainly a disease
of the brain--It does not predispose to criminal conduct, but it does to
accidents, if uncontrolled by drugs. A driver will be incapacitated not
only
by a grand mal attack (the epileptic fit in the usual sense) but by
petit mal epilepsy in which his mind simply fails to function for a few
seconds. Also, the sufferer may in rare instances perform complicated
acts in a somnambulist condition (the psychomotor attack), and these
may unintentionally cause injury.
.
.
. In the postictal period a patient
may be confused and belligerent.
.
.
.
The legal distinction between impairment of consciousness and im-
pairment of
self-control isa fine one. An epileptic may sometimes commit
an act of violence
in the ·twilight· (confusional) state following
a seizure;
and here his mental condition would be regarded as incompatible-with
notions
of mens_ red. But the e
epileptic seizure is frequently preceded by
extreme irritability which may cause the patient to commit an act of vio-
lence on the smallest provocation. Clearly, both acts have a pathological
cause. Itis hardly possible to frame a rule of law to distinguish the irritable
but possibly controllable person from a person who loses all self-control
because of abnormal electrical discharges in his brain; but the judge may
distinguish between the two when it comes to disposal.
Gay Hypoglycemia> This condition, a deficiency of blood-sugar, can
both impair the consciousness and inducéan aggressive outburst. It
may come about as the result of fasting followed by the
consumption
of alcohol, or when a diabetic takes an overdose of insulin or subjects
himself to unusual fatigue or lack of food. Deficiency of insulin produces
the opposite condition, hyperglycemia, excess of blood-sugar, which can
also be caused by alcohol. This can have somewhat similar symptoms.
CHAPTER 16
EXCUSES
575
(2) The following are not voluntary acts within the meaning of
this Section:
ee
ee
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic sugges-
tion;
(d) a bodily movement that otherwise is not a product of the
effort or determination of the actor, either conscious or habitual.
Questions
1. ·Involuntary· Conduct. Presumably there can be little question
that criminal liability should not be imposed upon an actor whose
conduct is truly involuntary, as in ·not a product of the effort or
determination of the actor· (Model Penal Code §2.01(2)(d)). There
seems little reason to disagree with the Model Penal Code·s treatment
of such cases as per se grounds for exculpation. No elaborate inquiry
need be made if the conduct is unconnected with the actor·s exercise
of will; there is no basis for a finding of blameworthiness. If Williams
is correct, however, somnambulism and a host of other conditions can
produce a wide range of disorders that stretch across the spectrum of
volition and consciousness.
If the disability simply impairs volition
should it similarly be presumed to exculpate? Assume a somnambulistic
state (or other disability) impairs an actor·s ability to control his conduct
or to appreciate what it is that he does. Might there be some instances
where an excuse might be inappropriate? In other words, might an
actor with impaired volition or cognition nonetheless be blameworthy?
2. Voluntary Act Requirement vs. Excuse Defenses. Assume a somnambu-
listic state (or other disability) impairs an actor·s ability to control his
conduct or to appreciate what it is that he does. Is this actor different,
for purposes of exculpation, from an actor who suffers the same degree
and type of dysfunction from mental illness? From involuntary intoxica-
tion? Does an actor get the benefit of these defenses if he or she suffers
some impairment, or must the actor show that the degree of impairment
is such that the actor could not reasonably have been expected to have
avoided the violation?
3. A Defense
for Bunny? Will Bunny get a defense under the Model
Penal Code? In your view, should he? If the same degree of coercion
to commit the theft and to escape came from threats of harm from
Lane, would he get a duress defense under the Model Penal Code? If
the same degree of compulsion to commit the thefts and escape came
from claustrophobia, would he have a defense under the Model Penal
Code?
576
IV/GENERAL PRINCIPLES OF DEFENSE
« WW
<
\
)
F
gl
\
J
SECTION 16.4
MISTAKE EXCUSES
Sophie·s Stand
SN
_._____
Sophie is upset at the recent practice of ·pro-life· groups in heck-
ling women who enter the local Woman·s Center, where abortions are
performed. As an active member of a ·pro-choice· group, she has
joined in counter-demonstrations but is increasingly persuaded that
they are ineffective at deterring or countering what she sees as unfair
harassment. Because she is a law student, she is asked at a recent
planning meeting of her group to investigate other methods for min-
imizing the effect of the pro-life picketing. All present agree that any
course
of action that they take as a group should not
be unlawful. While
visiting the scene of the demonstrations, Sophie notices that the only
access to the Center for a large group is along the street from the park
where the pro-life people now assemble their group. If pro-choice forces
congregated on both sidewalks at some point on the street, the pro-
life demonstrators would have to switch to much longer and more
narrow routes, which would both delay their arrival at the Center and
force them to break into small groups that might not be quite as emo-
tionally charged as the large excited groups that have done the harass-
ing.
Sophie reviews applicable law and concludes that the planned
action would not be unlawful because the pro-life demonstrators would
never be touched or detained in any way, they would have another
means of access to where they wished to go, and the sidewalk-blocking
would last only a short time and therefore would not interfere with
normal public usage. Her group likes her idea but asks that she check
with officials to be sure that such congregation on the sidewalks would
not be unlawful. In response to Sophie·s inquiry, the local police advise
against the proposed plan or any other such confrontational activity.
When Sophie presses for a formal legal opinion, the police refer her
to the State Attorney·s Office, pointing out that they are police officers,
not lawyers. They repeat their advice against this or any other confronta-
tion. The State Attorney·s Office responds to Sophie·s inquiry by noting
their long-standing: policy _ against giving
prior official
al interpretations
CHAPTER 16
EXCUSES
577
in the path of the pro-life demonstrators. No 0 contact is made. The pro-
life marchers split up and take other routes to t
to the
Center
All members
of Sophie·s group are arrested for · ·Obstructing a Public Passageway,·
a county ordinance that_does
es expressly criminalize their conduct. It
turns out that her law school·s library collection, where she did her
research, does not include county ordinances. Does Sophie have a
defense? Do the members of her group have a defense?
5,
·
ra ,
tite
United States v. Anthony
/°·
United States Circuit Court, Northern District of New York
24 F. Cas. 829 (no. 14,459) (1873)
The defendant [Susan B. Anthony], a female, was indicted for a
violation of the 19th section of the act of May 31st. 1870 (16 Stat.
144). .
.
. The trial took place before Hunt, Circuit Justice, and a
jury.
Phere was no dispute that the defendant had voted for a representative
in the Congress of the United States at an election therefor, in Rochester,
Monroe county, New York, and that, under the constitution and laws
of the state of New York, none but males were authorized to vote at
an election for members of the most numerous branch of the state
legislature, and that the defendant possessed all the qualifications
entitling a person to vote at such election, except that she was not a
male.
HUNT, Circuit Justice, after argument had been heard on the legal
questions involved, ruled as follows:
The defendant is indicted under the act of Congress of May 31st,
1870, for having voted for a representative in Congress, in November,
1872. Among other things, that act makes it an offence for any person
knowingly to vote for such representative without having a lawful right
to vote. It is charged that the defendant thus voted, she not having a
right to vote, because she is a woman. The defendant insists that she
has a right to vote; and that the provision of the constitution of this
state, limiting the right to vote to persons of the male sex, is in violation
of the I
Fourteenth |
Amendment of the Constitution of the United States,
and is void.
If she believed she had a right to vote, and voted in reliance upon
578
IV/GENERAL PRINCIPLES OF DEFENSE
knew that she was a woman, and that the constitution of this state
prohibits her from· voting. She intended.to.yiolate that provision·
intended to test it, perhaps, but, certainly, intended to violate it. The
necessary effect of her act was to violate it, and this she is presumed
to have intended. There was no ignorance of any fact, but, all the facts
being known, she undertook
to settle a principle in her own person.
She takes the risk, and she cannot escape the consequences.
.
.
.
[T]he counsel for the defendant requested the court to submit
the case to the jury on the question of intent, and with the following
instructions: (1) If the defendant, at the time of the voting, believed
that she had a right to vote, and voted in good faith in that belief, she
is not guilty of the offence charged. (2) In determining the question
whether the defendant did or did not believe that she had a right to vote,
the jury may take into consideration, as bearing upon that question, the
advice which she received from the counsel to whom she applied, and,
also, the fact, that the {nspectors of the election considered the question
and came to the conclusion that she had
a1
right to vote. (3) The jury
have a right to find a general verdict of guilty or
not guilty, as they
shall believe that the defendant has or has not committed the offence
described in the statute.
The Court declined to submit the case to the jury, on any question,
and directed the jury to find a verdict of guilty.
A request, by the
defendant's counsel, that the jury be polled, was denied by The Court,
The Alara was
1s thereupon cetwehieed to pay a fine of $100 and
the costs of the prosecution.
Nw
United States v. Barker
os xs
United States v. Martinez
a
United States Court of Appeals, District of Columbia Circuit
546 F.2d 940 (1976)
·
SS
WILKEY, Circuit Judge:
Two of the ··footsoldiers· of the Watergate affair, Bernard Barker
and Eugenio Martinez, are with us again. The haven·t been promoted,
they are still footsoldiers. They come before us this time to challenge
their convictions under 18 U.S.C. §241, for their parts in the 1971
burglary of the office of Dr. Lewis
CHAPTER 16
EXCUSES
579
within the White House to investigate leaks of classified information.
This ·Room 16· unit, composed of Egil Krogh, David Young, G. Gordon
Liddy, and E. Howard Hunt·and under the general supervision of
John Ehrlichman·determined, or was instructed, to obtain all possible
information on Daniel Ellsberg, the source of the Pentagon Papers
leak. After Ellsberg·s psychiatrist, Dr. Fielding, refused to be interviewed
by FBI agents, the unit decided to obtain copies of Ellsberg·s medical
records through a covert operation.
Hunt had been a career agent in the CIA before his employment
by the White House. One of his assignments was as a supervising agent
for the CIA in connection with the Bay of Pigs invasion, and, as ··Edu-
ardo,· he was well known and respected in Miami·s Cuban-American
community. A fact destined to be of considerable importance later, he
had been Bernard Barker·s immediate supervisor in that operation.
When the ·Room 16· unit determined that it would be best if the
actual entry into Dr. Fielding·s office were made by individuals not in
the employ of the White House, Hunt recommended enlisting the
assistance of some of his former associates in Miami.
Hunt had previously reestablished contact with Barker in Miami
in late April 1971, and he met Martinez at the same time. He gave
Barker an unlisted White House number where he could be reached
by phone and wrote to Barker on White House stationery. On one
occasion Barker met with Hunt in the Executive Office Building. By
August 1971 Hunt returned to Miami and informed Barker that he was
working for an organization at the White House level with greater
jurisdiction than the FBI and the CIA. He asked Barker if he would
become ·operational· again and help conduct a surreptitious entry to
obtain national security information on a ·traitor to this country who
was passing.
.
. Classified information to the Soviet Embassy.· He stated
further that ·the man in question.
.
. was being considered as a possible
Soviet agent himself.·
Barker agreed to take part in the operation and to recruit two
additional people. He contacted Martinez and Felipe deDiego. Barker
conveyed to Martinez the same information Hunt had given him, and
Martinez agreed to participate. Like Barker, Martinez had begun work-
ing as a covert agent for the CIA after Castro came to power in Cuba.
Although Barker·s formal relationship with the CIA had ended in 1966,
Martinez was still on CIA retainer when he was contacted.
Both testified at_trial that they had.no.xceason..to.question Hunt's
credentials. He clearly
worked for the White House and had a well
known background with the CIA, During the entire time they worked
for
the CIA, neither Barker nor Martinez was ever shown any credentials
580
IV/GENERAL PRINCIPLES OF DEFENSE
did not receive more detail on the purpose of the Fielding operation
or its target was not surprising to them; Hunt·s instructions and actions
were in complete accord with what their previous experience had taught
them to expect. They were trained agents, accustomed to rely on the
discretion of their superiors and to operate entirely on a ·need-to-
know· basis.
On 2 September 1971 Hunt and Liddy met Barker, Martinez, and
deDiego at a hotel in Beverly Hills, California. Hunt informed the
defendants that they were to enter an office, search for a particular
file, photograph it, and replace it. The following day the group met
again. Hunt showed Barker and Martinez identification papers and
disguises he had obtained from the CIA. That evening the defendants
entered Dr. Fielding·s office. Contrary to plan, it was necessary for them
to use force to effect the break-in. As instructed in this event, the
defendants spilled pills on the floor to make it appear the break-in had
been a search for drugs. No file with the name Ellsberg was found.
The next day Barker and Martinez returned to Miami. The only
funds they received from Hunt in connection with the entry of Dr.
Fielding·s office were reimbursement for their living expenses, the cost
of travel, and $100.00 for lost income.
On 7 March 1974 the defendants were indicted under 18 U.S.C.
§241, along with Ehrlichman, Liddy, and deDiego for conspiring to
violate the Fourth Amendment rights of Dr. Fielding by unlawfully
entering and searching his office. On 7 May 1974 the defendants filed
a Motion for Discovery and Inspection with an accompanying memoran-
dum outlining, znter alia, their proposed defense of absence of mens rea
due
to a mistake of fact mixed with law attributable to their reasonable
reliance > on apparent authority. On 24 May 1974, in a memorandum
order, the District Court rejected the defendants· position on the
ground that ° ·a mistake of law_is no defense.·
On 12 July 1974 the jury returned verdicts of guilty against both
Barker and Martinez.
.
.
.
The Defense Of Good Faith, Reasonable Reliance On
Apparent Authority
A.
The primary ground upon which defendants Barker and Martinez
rest their appeal is the refusal of the District Court to allow them a
defense based upon their good faith, reasonable reliance on Hunt·s
apparent authority. They characterize this defense as a mistake of fact
·coupled with· a mistake of law which negated the mens rea required
for a violation of section 241. ·The mistake of fact was the belief that
CHAPTER 16
EXCUSES
581
Hunt was a duly authorized government agent; the mistake of law was
that Hunt possessed the legal prerequisites to conduct a search·either
probable cause or a warrant.·
It is a fundamental tenet of criminal law that an honest mistake
of fact
fact _negatives.. criminal intent, when a defendant·s acts would be
lawful if the facts were as he s
supposed them to be. A mistake of law,
on the other hand, generally will not excuse the commission of an
offense. A defendant·. s error as to his authority y to engage I in particular
activity, if based upon a mistaken view of legal requirements (or igno-
rance thereof),
is a mistake of law. Typically, the fact that he relied upon
the erroneous advice of another is not an exculpatory circumstance. He
is still deemed to have acted with a culpable state of mind.****
Thus at first blush the trial judge·s rejection of the defense prof-
fered by the defendants·both in his pre-trial order and in his instruc-
tion to the jury·seems legally sound. He advised the jury that if the
defendants honestly believed a valid warrant had been obtained, this
would constitute a mistake of fact which would render them innocent
of a conspiracy to conduct a search in violation of the Fourth Amend-
ment. If, in contrast, they simply believed, despite the absence of a
warrant, that for reasons of national security or superior authority the
break-in was legal, such a mistake of law would not excuse their acts.
B.
With all due deference to the trial judge, I must conclude that
both
th charges were in fact incorrect, and that this «
error
r must t be faced
·byt the court on this app
is appeal.
Fn fate eae Ba
It is readily apparent that few courts would countenance an instruc-
tion to a jury·even assuming a criminal prosecution were brought
against government agents in such a situation·which advised that since
the mistake in acting on an invalid warrant was one of law, it would
not excuse the agent·s unlawful search. It is neither fair nor practical
to hold such officials to a standard of care ·exceeding that exercised by
a judge.
. Moreover, although the basic policy behind ·the mistake of law
doctrine is that, at their peril, all men should know and obey the law,
in certain situations there is an overriding societal interest in having
individuals rely on the
e authoritative pronouncements of officials whose
decisions we wish to see respected.
For this reason,
a number of exceptions to the mistake of law
582
IV/GENERAL PRINCIPLES OF DEFENSE
just or counter-productive. Their recognition in a particular case should
give the defendant a defense similar to one based upon mistake of fact,
I submit, with one important difference. His mistake should avail him
only if it is objectively reasonable under the circumstances. The mistake
of a government agent in relying on a magistrate·s approval of a search
can be considered virtually per se reasonable.
.
.
. Similarly, if a private
person is summoned by a police officer to assist in effecting an unlawful
arrest, his reliance on the officer·s authority to make the arrest may be
considered reasonable as a matter of law. The citizen is under a legal
obligation to respond to a proper summons and is in no position to
second-guess the officer·s determination that an arrest is proper. In-
deed, it is society·s hope in recognizing the reasonableness of a citizen·s
mistake in this situation to encourage unhesitating compliance with a
police officer·s call.
Other situations in which a government official enlists the aid of
a private citizen to help him perform a governmental task are not so
obviously reasonable on their face. If the official does not order the
citizen to assist him, but simply asks for such assistance, the citizen is
not under a legal compulsion to comply. Also, if the circumstances do
not require immediate action, the citizen may have time to question
the lawfulness of the planned endeavor. Nevertheless, the public policy
of encouraging citizens to respond ungrudgingly to the request of
officials for help in the performance of their duties remains quite
strong. Moreover, the gap (both real and perceived) between a private
citizen and a government official with regard to their ability and author-
ity to judge the lawfulness of a particular governmental activity is great.
It would appear to serve both justice and public policy in a situation
where an individual acted at the behest of a government official to
allow the individual a defense based upon his reliance on the official·s
authority·if he can show that his reliance was objectively reasonable un-
der the particular circumstances of his case.
C.
.
.
. Although the defendants characterized their mistake as to
Hunt·s authority as one of fact, rather than law, they requested an
instruction which substantially coincides with my view of the proper
test:
[I]f you find that a defendant believed he was acting out of a good faith
reliance upon the apparent authority of another to authorize his actions,
that is a defense to the charge in Count 1, provided you find that such
a mistake by a defendant was made honestly, sincerely, innocently and
was a reasonable mistake to make based upon the facts as that defendant
perceived them.
CHAPTER 16
EXCUSES
583
The District Court r refused this instruction, regardless whether denomi-
nated a mistake of fact or an exception to the doctrine of mistake of
law, and advised the jury simply t
that a mistake
a as to the legality o of an
unlawful search was no excuse.
It is clear from the above discussion of the search innocently con-
ducted under an invalid warrant that the court·s instruction did not
state the law, and that_a mistake as to the legality of an unlawful search
may sometimes be an excuse. The trial judge can justify such an instruc-
tion in this context only if there is no legal possibility of equating the
reliance of Barker and Martinez on Hunt·s apparent authority with the
reliance of a police officer on a judicial warrant subsequently held
invalid. And this will be true if and only if Barker and Martinez could
not show both (1) facts justifying their reasonable reliance on Hunt·s
apparent authority and (2) a legal theory on which to base a reasonable
belief that Hunt possessed such authority.
Barker and Martinez meet the test_as to facts. There was abundant
evidence in the case from which the jury could have found that the
defendants honestly and reasonably believed they were engaged-in a top-
secret national security operation lawfully authorized by a government
intelligence agency.
Barker and Aa likewise meet the test as to the legal theory on
which Hunt could have possessed such authority. That the President
pe the authority to confer upon a group of aides in the White House
·more authority than the FBI or CIA,· was in 1971 and is now by no
means inconceivable as a matter of law. I certainly do not assert that
the President here actually did so act, nor do we in this case need
to decide the question of Executive authority to conduct warrantless
searches pertaining to foreign agents...
.
. | do think that defendants Barker and Martinez were entitled
to act in objective good faith on the facts known to them in regard to
Hunt·s position and implicitly on the validity of a legal theory, still to
be disproved, which has been vigorously espoused by President and
Attorney General for the last forty years. I think it plain that a citizen
should have a legal defense to a criminal charge arising out of an
unlawful arrest or search which he has aided in the reasonable belief
that the individual who solicited his assistance was a duly authorized
officer of the law. It was error for the trial court to bar this defense in
the admission of evidence and instructions to the jury, and the convic-
tions must accordingly be
(
Reversed-7>
.-
LEVENTHAL, Circuit Judge (dissenting):
. Whatever equities may pertain to the case of these defendants
of Cuban origin, who claim that their actions reflect their patriotism,
584
IV/GENERAL PRINCIPLES OF DEFENSE
a modest probation. Their quest for complete exculpation does not
entitle them, in my view, to a ruling that the trial judge was mistaken
as to the pertinent principles of law.
My opinion explaining why I dissent from the reversals contem-
plated by Judges Wilkey and Merhige, is cast in the conventional form
of opinions that present first a statement of the facts, then an orderly
discussion of the legal principles more or less seriatim. This case also
calls, I think, for an opening exclamation of puzzlement and wonder.
Is this judicial novelty, a bold injection of mistake of
law as a valid defense
to criminal liability, really being wrought in a case where defendants are
charged with combining to violate civil and constitutional rights? Can
this extension be justified where there was a deliberate forcible entry,
indeed a burglary, into the office of a
doctor who was in no way suspected
of any illegality or even impropriety, with the force compounded by
subterfuge, dark of night, and the derring-do of ··salting·· the office
with nuggets to create suspicion that the deed was done by addicts
looking for narcotics?
Judge Wilkey begins to cast his spell by describing Barker and
Martinez as ··footsoldiers·· here in court again. Of course, they are here
this time for an offense that took place the year before the notorious
1972 Watergate entry that led them to enter pleas of guilty to burglary.
Every violation of civil rights depends not only on those who initiate,
often unhappily with an official orientation of sorts, but also on those
whose active effort is necessary to bring the project to fruition. To the
extent appellants are deemed worthy of sympathy, that has been pro-
vided by the probation. To give them not only sympathy but exoneration,
and absolution, is to stand the law upside down, in my view, and to
sack legal principle instead of relying on the elements of humane
administration that are available to buffer any grinding edge of law.
That this tolerance of unlawful official action is a defense available for
selective undermining of civil rights laws leads me to shake my head
both in wonder and despair.
The ultimate point is that appellant·s mistake of law, whether or
not it is classified as reasonable, does not negative legal responsibility,
but at best provides a reason for clemency on the ground that the strict
rules of law bind too tight for the overall public good. Any such clemency
is not to be obtained by tinkering with the rules of responsibility but
must be provided by those elements of the system of justice that are
authorized by law to adjust for hardship and to provide amelioration.
We should refuse to cut away and weaken the.core-standards for behavior
provided by the criminal law. Softening the standards of conduct rather
than ameliorating their application serves only to undermine the behay-
ioral incentives the law was enacted to provide. It opens, and encourages
citizens to find, paths of avoidance instead of rewarding the seeking of
compliance with the law·s requirements. The criminal law cannot ··vary
legal norms with the individual·s capacity to meet the standards they
CHAPTER 16
EXCUSES
585
prescribe, absent a disability that is both gross and verifiable, such as
the mental disease or defect that may establish irresponsibility. The
most that it is feasible to do with lesser disabilities is to accord them
proper weight in sentencing.·°?
The sentence performed its proper function here. Our system is
structured to provide intervention points that serve to mitigate the
inequitable impact of general laws while avoiding the massive step of
reformulating the law·s requirements to meet the special facts of one
hard case. Prosecutors can choose not to prosecute, for they are ex-
pected to use their ·good sense
.
.
. conscience and circumspection··
to ameliorate the hardship of rules of law. Juries can choose not to
convict if they feel conviction is unjustified, even though they are not
instructed that they possess such dispensing power. In this case, Barker
and Martinez were allowed to testify at length about the reasons motiva-
ting their involvement in the Fielding operation. This was an exercise
of discretion by the judge that gave elbow room to both defendants
and jury.
In sentencing Barker and Martinez after they were convicted to
only three years probation, the trial judge made a subjective evaluation
of the defendants· conduct in light of the goals of the criminal law.
Barker and Martinez·s patriotic motives, good intentions, and prior
experience with the CIA and Hunt must all have influenced the sentence
imposed. The trial judge exercised his sentencing power to distinguish,
in terms of degree of moral guilt, between appellants Barker and Marti-
nez and codefendant Ehrlichman. But sympathy for defendants, or the
possibility that their mistake might be considered ·reasonable· given
their unique circumstances, must not override a pragmatic view of
what the law requires of persons taking this kind of action. I come
back·again and again, in my mind·to the stark fact that we are dealing
with a breaking and entering in the dead of night, both surreptitious
and forcible, and a violation of civil rights statutes. This is simply light
years away from the kinds of situations where the law has gingerly carved
out exceptions permitting reasonable mistake of law as a defense.
.
.
.
I dissent.
Model Penal Code §§2.04(3) & (4)
Ignorance or Mistake of Law Defense
Jj
EE
(3) A belief that conduct does not legally constitute an offense is
a defense to a prosecution for that offense based upon such conduct
when:
59. A.L.I. Model Penal Code §2.09, Comment (Tent. Draft No. 10, 1960), at 6.
586
IV/GENERAL PRINCIPLES OF DEFENSE
(a) the statute or other enactment defining the offense is not
known to the actor and has not been published or otherwise reason-
ably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous, contained
in (i) a statute or other enactment; (ii) a judicial decision, opinion
or judgment; (iii) an administrative order or grant of permission; or
(iv) an official interpretation of the public officer or body charged
by law with responsibility for the interpretation, administration or
enforcement of the law defining the offense.
(4) The defendant must prove
a
defense arising under Subsection
(3) of this Section by a preponderance of evidence.
N.J. Stat. Ann §2C:2-4(c)(3)
Ignorance or Mistake
A belief that conduct does not legally constitute an offense is a
defense to a prosecution for that offense based upon such conduct
when: .
(3) The actor.
.
. diligently pursues all means available to ascertain
the meaning and application of the offense to his conduct and honestly
and in good faith concludes his conduct is not an offense in circum-
stances in which a law-abiding and prudent person would also so con-
clude.
The defendant must prove a defense arising under [this] subsec-
tion by clear and convincing evidence.
Questions
1. Mistake of Law Negating an Element vs. General Excuse. As we know
from Section 7.3, the modern view allows a mistake of law as a defense if
it negates an offense element, but knowledge of criminality is rarely an
offense element. Older federal cases, and even some more recent cases,
sometimes reject mistake of lawas a defense even if the mistake negates an
offense element, as in Woods case in Section 7.3. Assume that the offenses
charged in Anthony and in Barker & Martinez did not require knowledge
of criminality of the conduct. Do circumstances exist in those cases to
suggest that a mistake defense nonetheless is appropriate?
2. Mistake of Law Excuse. What arguments can you make against
CHAPTER 16 EXCUSES
587
recognizing a general excuse for a reasonable mistake of law? What
arguments does Judge Leventhal make in dissent in Barker & Martinez
What arguments can you make in favor of such a defense?
3. Mistake of Law Under the Model Penal Code. What is the difference
between the mistake of law defense given in Model Penal Code §2.04(1)
and that given in §2.04(3) & (4)? Would Susan B. Anthony have a
defense under the Model Penal Code? Would Barker and Martinez?
Would Sophie? Would the members of Sophie·s group who blocked
the sidewalk? In your view, should each of these defendants have an
excuse defense?
4. ·Due Diligence· Mistake of Law Excuse. Which of the defendants
noted above would have a defense under the New Jersey ·due diligence·
excuse? Susan B. Anthony? Barker and Martinez? Sophie? The members
of Sophie·s pro-choice group? What arguments can you make for and
against such a defense?
SECTION 16.5
PROBLEMATIC EXCUSES
Who Is Edward Drum?
When he is 6 years old, Edward Drum·s parents join an ··experimen-
tal community· of 25 people who live together in an old warehouse.
They lead an unconventional life, try to avoid society·s rules, and impose
no rules or restrictions on their children. Edward and his older brothers
begin to follow a pied piper of the community·s children,
a man named
Donald (·Toad·) Starr. Toad fawns over Edward in particular. As if
courting him, he gives Edward presents and is extremely attentive.
When Edward·s parents break up, Edward is 8. He and his two older
brothers move in with Toad, who has moved to an old bus in a field
several miles from the community. Toad becomes sexually active with
Edward and his two older brothers. Physical force is rarely used; gener-
ally the boys are psychologically pressured and occasionally denied food
until they cooperate. Because of Toad·s sexual preference for younger
boys, he concentrates his sexual and emotional attention on Edward.
The older boys eventually break with Toad and go on their own but
Edward remains. Toad preaches a radical form of child rearing, in
which sexual relations between children and adults is a good thing.
By age 16, Edward has long since lost the need for Toad·s coaching
to participate in sexual activities. He helps Toad kidnap a 13-year-old
boy named My Lon. My is sexually abused by Toad and, at Toad·s
request, by Edward, during which Toad watches and takes video movies.
Over the next two years, My comes to participate in these sexual activities
without coaching, as Edward had come to do several years before. Two
588
IV/GENERAL PRINCIPLES OF DEFENSE
years after My is kidnapped, Toad conceives a plan to kidnap a young
girl who he will impregnate (he believes this is possible as young as 8
or 9) and will have her become ··the perfect mother· as she raises a
child under his radical theory of parenting. Edward and My help Toad
kidnap a 3-year-old girl named Betsey Wynn. For eight months, the four
live out of a converted bread truck. Toad, Edward, and My take turns
abusing Betsey.
On February 23, 1988, in Sacramento, California, a suspicious
shopper opens the back door of a truck parked in the shopping mall·s
parking lot. She finds My lying with Betsey, both naked from the waist
down. The police are notified. They arrest Toad and Edward when they
return to the truck. Toad is charged with 121 counts of kidnapping,
false imprisonment, lewd conduct, sodomy, rape, oral copulation, and
assault. Edward is charged with 93 similar counts, and My with 23.
Psychiatrists hired by defense counsels find no mental illness in any of
the three defendants."
R. Delgado, Ascription of Criminal States of Mind:
Toward a Defense Theory for the Coercively Persuaded
(·Brainwashed·) Defendant
63 Minn. L. Rev. 1, 1-11 (1978)
Coercive persuasion, or thought reform,· has been extensively de-
scribed by psychologists and psychiatrists in field studies of prisoners
of
war, victims of Chinese ··revolutionary universities,· captives of outlaw
or extremist groups, and members of religious cults. In more controlled
settings, behavioral scientists have explored the contributions that isola-
tion, physiological depletion, assertions of authority, guilt manipulation,
peer pressure, and cognitive dissonance, can have in bringing about
"Editor's Note.·The facts of this hypothetical are loosely based on the case of
Luis Reynaldo (Tree Frog) Johnson and Alex Cabarga. See San Francisco Chronicle,
August 5, 1984, at 9. Both were found guilty of the offenses charged and received
sentences of 527 years and 208 years in prison, respectively. However, Cabarga·s sentence
was later reduced to 25 years on the recommendation of the District Attorney, making
Cabarga eligible for parole within five years. At sentencing the court explained, ·The
court agrees that Mr. Cabarga is a tragic figure and comes from a tragic background.·
See San Francisco Examiner, April 25, 1989, at 39.
1. ·Coercive persuasion· and ·thought reform· are terms for a forcible indoctrina-
tion process designed to induce the subject to abandon existing political, religious, or
social beliefs in favor of a rigid system imposed by the indoctrinator, This process is
popularly referred to as ·brainwashing,· although scientists generally avoid use of this
latter term because of a widespread public emotional response and misuse of the term,
and because by glib repetition in many contexts it has lost all semblance of its original
narrow meaning.
CHAPTER 16
EXCUSES
589
behavioral compliance and attitudinal change. Despite some disagree-
ment over the theoretical model that best explains such changes, it is
generally agreed that certain elements or themes are centrally involved
in instances of coercive persuasion. Thése include:
(1) isolation of the victim and total control over his environment;
(2) control of all channels of infor
ormation and communication;
(3) physiological debilitation by means of inadequate diet, insufficient
sleep, and poor sanitation;
(4) assignment of meaningless tasks, such as repetitious copying of
written material;
(5) manipulation of guilt and anxiety;
(6) threats of annihilation by seemingly all-powerful captors, who
insist that the victim·s sole chance for survival lies in identifying
with them;
(7) degradation of and assaults on the pre-existing self;
(8) peer pressure, often applied through ritual ·struggle sessions·;
(9) required performance of symbolic acts of self-betrayal, betrayal
of group norms, and confession;
(10) alternation of harshness and leniency.
Acting alone, none of these forces is likely to prove irresistible to
a person of ordinary resolve, particularly if he is aware that an attempt
is under way to influence him. Rather, it is the concentration of multiple
forces, both physical and psychological, intensively applied over a short
period of time, that gives coercive persuasion its peculiar power.
wer. Many
authorities, including the drafters of a Department of Defense report
prepared in response to evidence of widespread collaboration by Ameri-
can prisoners of war (POW) during the Korean conflict, have concluded
that a determined captor, possessing total control over the life and
environment of a captive, can produce behavioral and attitudinal
change in even the most strongly resistant individual.'®
.
16. These conclusions, largely based on field studies and interviews, are further
supported by the results of what appears to be the sole consciously designed experiment
testing the ability of multiple coercive forces to elicit desired behavior changes. During
the Vietnam War, the United States Air Force and Navy developed a survival training
program for senior military officers, particularly pilots, who were exposed to the highest
degree of risk of capture and interrogation by the North Vietnamese. The aim was to
strengthen their resistance to coercive persuasion techniques in order to safeguard
tactical military secrets for the longest possible time.
.
.
. Despite introductory lectures
forewarning them of the experiences they would undergo and reassuring them that
neither they nor their families would be in any real physical danger, ·a very remarkably
high percentage, as high as twenty-five percent of these experienced.
.
590
IV/GENERAL PRINCIPLES OF DEFENSE
Se
ae who have considered the problem of the coer-
it means s denying a defense toa
a class of defendants who are, by ordinary
moral intuitions, often more victims than perpetrators.
Consider a hypothetical individual captured by an outlaw gang and
subjected to lengthy thought reform techniques, beginning with threats
and terror, and continuing with isolation, starvation, sleep deprivation,
and guilt manipulation carried out by seemingly all-powerful captors.
At various intervals in the process, that individual·s captors demand that
he perform criminal acts for their benefit. Under traditional criminal
defense theories, exculpation would be available for those crimes the
victim commits during the initial
al stages of captivity, when classic duress
and coercion exist, but not durme the latter stages, when· ·such Overt
coercion no longer is necessary for the captors to maintain control.
Such a result is surely wrong. The breakdown of the victim·s identity
and will in the latter stages of the coercive persuasion process destroys
the very mechanisms by which he might have offered resistance. Thus,
acquiescence is rendered more certain than in the early stages when
simple duress is applied. A person under direct threats of death will
rarely cling to even deeply held beliefs. Rarer still is the individual who
can resist protracted, unremitting, coercive thought reform techniques.
Consideration of theories traditionally believed to justify punish-
mentalso suggests that coercive persuasion should be taken into account
in assessing a defendant·s criminal guilt.
.
.
. Past experience demon-
strates that most such victims, once removed from the coercive environ-
ment, soon lose their inculcated responses <
and Teturn..to. their former
modes
of thinking and acting. This return often is accompanied by
by
expressions of anger, in which the former captive accuses his captors
of the ·rape· of his mind and personality. Punishment of such individu-
als does little to promote the rationales of the criminal justice system.
If punishment of the coercively persuaded defendant conflicts with
both basic intuitions and the justifications advanced for invocation of
criminal punishment, yet cannot be avoided under any existing defense
theory, it becomes necessary to fashion a new theory of defense. Oc-
cam·s razor"! dictates that any such new defense should constitute,
insofar as is possible, a logical extension of existing concepts of act,
the Vietnamese conflict, except for those who had participated in the most egregious
acts of complicity. In fact no such prosecutions were recorded.
41. Attributed to William of Occam, the principle·that entities should not be
multiplied beyond necessity·urges that the simplest possible rule or theory be adopted
that is consistent with the facts or phenomena to be explained. See, e.g., B. Russell, A
CHAPTER 16
EXCUSES
591
intent, and blame. The actus reus of defendants who have undergone
coercive persuasion is undisputed, they apparently are neither insane,
coerced, nor acting under diminished capacity, and yet they seem less
than fully responsible for their acts. This is so because the coercively
persuaded defendant·s choice to act criminally was not freely made
saan
allegedly criminal act possessed the requisite state of criminal mind at
the time of the act. In the case of the coercively persuaded defendant,
it is appropriate to ask also whether
the intent the actor possessed can
properly be said to be his own.
The victim of thought reform typically commits criminal acts fully
aware of their wrongfulness. He acts consciously, even enthusiastically,
and without overt coercion. Yet, in an important sense, the guilty mind
with which he acts is not his own. Rather, his mental state is more
appropriately ascribed to the captors who instilled it in him for their
own purposes.
.
.
.
United States v. Alexander
United States Court of Appeals, District of Columbia Circuit
as amended, 471 F.2d 923 (1973)
[The Court divided on several of the issues raised by this appeal.
Chief Judge Bazelon was in the majority on all issues except the issue
that is of interest here: ··Whether the trial judge erred in instructing the
jury with respect to defendant Murdock·s ·rotten social background.· ·
Judge Bazelon·s dissenting opinion appears before that of the majority. ]
BAZELON, Chief Judge:
Part I: The Trial
The Evidence Presented At Trial
Five United States Marine Lieutenants·Ellsworth Kramer, Thad-
deus Lesnick, William King, Frank Marasco, and Daniel LeGear·
attended a dinner at the Marine Corps Base in Quantico, Virginia, on
the evening of June 4, 1968, in celebration of their near-completion of
basic officers· training. After dinner, they drove to Washington, arriving
about midnight, still wearing their formal dress white uniforms. They
stopped for about an hour-and-a-half at a nightclub, where they each
had a drink. They were well-behaved and ·conducted themselves like
gentlemen.· At the nightclub they met Barbara Kelly, a good friend of
592
IV/GENERAL PRINCIPLES OF DEFENSE
Lieutenant Kramer. They accompanied her to her apartment, which
she shared with another young woman, and visited there with the two
women until about 2:40 AM. When the five Marines departed, Miss
Kelly accompanied them, intending to return to the nightclub to meet
another friend. Along the way, they decided to stop ata hamburger shop
to get some coffee and sandwiches before the trip back to Quantico. The
six of them entered the shop, stood by the take-out counter, and ordered
their food. They noticed three Negro males ao at the other end of
the counter. As described by Lieutenant ·Kramer, · ·{T]heir hair was in
Afro-bush cut, wearing medallions, jersey knit shirts, sport jackets.
.
.
[T]hey were what I consider in eccentric dress.· The three men were
Alexander, Murdock, and Cornelius Frazier. The critical events which
subsequently took place in the restaurant were described by the four
survivors of the Marine group and by Murdock and Frazier. Alexander
chose not to take the stand.
According to the prosecution witnesses, Lieutenant Kramer real-
ized that appellant Alexander was staring at him, and he returned the
stare. ·[I]t was on the order of a Mexican stand-off type thing where
you just keep staring at one another for an indefinite period of time.·
No words were exchanged between the two men, and Lieutenant
Kramer soon turned and faced the counter. Shortly thereafter Frazier,
Murdock, and Alexander got up from where they were sitting and
walked to the door behind the Marines. Murdock and Frazier left the
shop, but Alexander stopped in the doorway. He ·tapped Lieutenant
Kramer on the shoulder. When the Marine turned around, Alexander
poked his uniform name tag and said, ·You want to talk about it more?
You want to come outside and talk about it more?· When Lieutenant
Kramer replied, ·Yes, I am ready to come out· or ·Yes, I guess so,·
Alexander added, ·I am going to make you a Little Red Ridinghood.··
At this point, Lieutenant King stepped up beside Lieutenant Kramer
and made a remark variously reported by the prosecution witnesses as
·What you God-damn niggers want?··, ·What do you want, you nigger?·
·What do you want, dirty nigger bastard?·, and ·Get out of here·nigger.··
Thereupon Alexander abruptly drew a long-barrelled .38 caliber_re-
volver, cocked it, and pointed it at the group or dir ectly
into Lieutenant
King· s
s chest, saying, ·I will show you what I want,·
·This is what I
want.·
The Marines possessed no weapons whatsoever and, according to
their testimony, were not advancing toward Alexander. As they stood
there, shocked at the sight of the gun, Murdock reentered the shop at
Alexander·s left and rear, and drew a short-barrelled .38 caliber revolver.
A series of shots suddenly rang out, and the Marines and Miss Kelly
fell or dived to the floor. None attempted to retaliate because they all
were taking cover and trying to get out of the line of fire. Alexander
CHAPTER 16
EXCUSES
593
back into the shop and attempted·unsuccessfully·to fire his weapon
several times more. Only Lieutenant Kramer attempted _ to identify this
man, and he said it was Murdock. Yet es; Sx
Lieutenants King and Lesnick were mortally wounded in the fusil-
lade; they died within minutes. Lieutenant Kramer was wounded in the
head, but he remained conscious, as did Miss Kelly, who had been shot
in the hip. Only Lieutenants LeGear and Marasco were not hit.
Alexander, Murdock, and Frazier fled to Alexander·s automobile
and drove off rapidly in the wrong direction ona one-way street. Alexan-
der was driving, and as the car drove off, Murdock fired three more
shots from the window of the car, at the door of the hamburger shop,
and at people in the street. A nearby scout car raced after the fleeing
car and stopped them within a few blocks. Two revolvers were recovered
from the front floorboard of Alexander·s automobile.
.
.
.
Part II: The Hearing on Criminal Responsibility
. [I]n the charge to the jury [at a bifurcated insanity trial for
Murdock], the court used language that seemed to tell the jury to
disregard a portion of the evidence that was critical to Murdock·s theory
of the case.
The court has concluded, for the reasons set forth in Judge McGow-
an·s separate opinion, that the record does not call for reversal [because
of the jury charge]. Because the author of this opinion is persuaded
that there is substantial merit [to defendant Murdock·s claim], the
author·s views are set forth below.
.
.
.
Instructions to the Jury
I turn.
.
. to what I regard as a serious error in the jury charge
on the issue of criminal responsibility. In order to put the problem in
perspective, it will be necessary to review the testimony in some detail.
1. Murdock relied primarily on the testimony of Dr. Williams, a
_board-certified psychiatrist, and professor at Howard University Medical
·School.
Dr. Williams
had examined Murdock on two occasions during
his confinement in St. Elizabeth·s Hospital [for psychiatric evaluation
upon his plea of insanity]. According to the testimony of Dr. Williams,
Murdock was strongly delusional, though not hallucinating or psychouc;
he was greatly preoccupied with the unfair treatment of Negroes in
this country, and the idea that racial war was inevitable. He showed
compulsiveness in his behavior, emotional immaturity, and some psycho-
pathic traits. Since his emotional difficulties were closely tied to his
594
IV/GENERAL PRINCIPLES OF DEFENSE
impulse to shoot.*4 His emotional disorder had its roots
in his childhood,
in the Watts section of Los Angeles; particularly important was the fact
that his father had deserted his mother, and he grew up in a large
family with little money and little love or attention.
Dr. Williams stated firmly that in his view Murdock was suffering
from an abnormal mental condition that substantially impaired his
behavior controls. But he stated
ju
just as firmly that the condition did
not amount to a mental illness:
My idea of mental illness is that an individual is out of touch with reality.
He has auditory hallucinations, he has delusions, he has mannerisms
that set him off as a different individual. He withdraws from society. And
his behavior as such is tremendously bizarre. This is what I call, what
they would call at Johns Hopkins, a major psychosis and a form of mental
illness.
.
.
.
1 look on [Murdock·s condition] as psychoneurosis, but not,
as such, a form of mental illness. It is not a psychotic reaction, which I
consider a mental illness. Itis
an
i
onse,
an emotional illness.
Not a mental illness in that it is psychotic.
SS
NTT
This court has made it perfectly plain that for purposes of the
insanity defense, ··mental illness· is a legal term of art. A criminal
defendant·s responsibility cannot turn on the label attached to his
condition. The insanity defense
is neither.expanded nor contracted by
changing
fashions 1
in n_psychiatric. terminology. In particular, mental ill-
ness for our purposes is not limited to psychosis; it includes any ···abnor-
94. There is some support for this view in the testimony of Dr. Pugh, the St.
Elizabeth·s psychiatrist who testified for the government. Dr. Pugh found no recognized
psychiatric disease, but he found ·predisposing factors,· and could not deny the possibil-
ity that Murdock·s behavior controls were impaired by an abnormal mental condition:
Whether he was under any irresistible compulsion, as I say, that is something
that can·t be scientifically answered.
.
.
. As far as his personality is concerned,
both by history and by psychological testing, he is a person who overreacts to the
CHAPTER 16
EXCUSES
595
mal condition of the mind that substantially affects mental or emotional
processes and substantially impairs behavior controls.·
Defense counsel was thus confronted with a serious dilemma, aris-
ing from the fact that ···mental illness·? meant one thing to his witness,
and another to the law. It was clear that the law would permit a jury
to find mental illness on the basis of Dr. Williams·s testimony about
Murdock·s ·abnormal condition.· In practice, however, a jury might
well be reluctant to look beyond the doctor·s statement that the condi-
tion did not amount to mental illness as he understood the term.
Counsel·s strategy was to bypass the troublesome term ···mental
illness,· and invite the Jury to focus directly on the legal definition of
that term. He conceded to the jury that Murdock ·did not have a
mental disease in the classic sense,· i.e., he did not have a psychosis.
But, counsel argued, the expert testimony showed that at the critical
moment Murdock did not have_ control of his conduct, and the reason
for that lack of
control
was a deepseated emotional disorder that was
rooted in his ·rotten social background.·'·· Accordingly, he asked the
trial court to omit the term ·mental disease or defect· from the jury
instructions. I think his proposal was ingenious; the trial court might
well have framed a suitable instruction asking the jury to consider
whether Murdock·s act was the product, not of ·mental illness,· but
of an ·abnormal condition of the mind that substantially affects mental
or emotional processes and substantially impairs behavior controls.·
While the trial court denied the requested instruction, we cannot
say that ruling was error. The judge carefully instructed the jury to
resolve the question 1 of mental illness in accordance with
its legal defini-
tion; he told them they were not bound by medical conclusions as to
what is or is not a mental disease, and he told them to ignore defense
counsel·s concession that Murdock was without mental disease. In this
100. In the language of the closing argument of Murdock·s counsel:
Dr. Williams premised his conclusion on the fact that this man had had what
we might call a rotten social background. Now we know that most people survive
rotten social backgrounds. But most people are not now here at this time on trial.
The question is whether the rotten social background was a causative factor and
prevented his keeping controls at that critical moment.
At the critical moment when he stepped back in the Little Tavern restaurant
and he was faced with five whites, with all of his social background, with all of
his concepts, rightly or wrongly, as to whether white people were the bogeymen
that he considered them to be, the question at this moment is whether he can
control himself. That is the only question. Now you can expand it out, but the
only question is not the question of how you label what he had. If you label it
mental disease or not. But the real question is whether he had control of himself.
Now you have got to take the trip back through his lifetime with him and look
at the effect that his lifetime had on him at that moment and determine whether
he could control himself or not.
596
IV/GENERAL PRINCIPLES OF DEFENSE
respect the instructions conform to the requirements set forth in our
cases.
But the judge injected into the instructions a special note of cau-
tion, in response to the testimony and argument presented in this case.
He told the jury:
We are not concerned with a question of whether or not a man had
a rotten social background. We are concerned with the question of his
criminal responsibility. That is to say, whether he had an abnormal condi-
tion of the mind that affected his emotional and behavioral processes at
the time of the offense.
Defense counsel had objected to that instruction before it was given,
because his theory of the case was that Murdock had an abnormal
mental condition caused in part by his ··rotten social background.· The
trial court overruled his objection, deeming the instruction necessary to
counteract what he saw as an attempt by defense counsel to appeal to
the jurors on the basis of sympathy, or passion, or prejudice.
It may well be that the trial judge was motivated by a reasonable
fear that the jury would reach its decision on the basis not of the law
but of sympathy for the victims of a racist society. Nevertheless, I think
that the quoted instruction | was reversible error. It had the effect
of
telling the j
jury to disregard the testimony relating to Murdock·s social
and economic backgr ound and to consider only ae testimony framed
in terms of ·illness.· Such an instruction is contrary to law, and it
clearly undermined Murdock·s approach to the insanity defense in this
case. For Murdock·s strategy had two parts: First, he sought to convince
the jury to disregard Dr. Williams· finding of no en illness,· and
then he sought to persuade them to find mental illness in the legal
sense of the term. The jury could hardly consider the issue of mental
illness without considering Murdock·s background, in view of the fact
that all the witnesses traced such disabilities as they found at least in
part to his background.
No matter what the trial judge intended, his instruction may have
deprived Murdock of a fair trial on the issue of responsibility. But even
if that instruction had not been offered, Murdock could argue that he
was denied a fair opportunity to present his particular responsibility
defense·a defense not clearly grounded on any medically recognized
·mental disease or defect.· While the language of our responsibility
test theoretically leaves room for such a defense, our experience reveals
that in practice it imposes illogical constraints on the flow of information
to the jury and also on the breadth of the jury·s inquiry. Our test
demands an ·abnormal condition of the mind,· and that term carries
implications that may mislead counsel, the court, and the jury.
McDonald defined mental illness for purposes of the responsibility
defense as an abnormal condition of the mind that ·substantially affects
CHAPTER 16
EXCUSES
597
mental or emotional processes and substantially impairs behavior con-
trols.· The thrust of Murdock·s defense was that the environment in
which he was raised·his ·rotten social background· ·conditioned him
to respond to certain stimuli in a manner most of us would consider
flagrantly inappropriate. Because of his early conditioning, he argued,
he was denied any meaningful choice when the. racial insult triggered
the explosion in the restaurant. He asked the jury to conclude that his
·rotten social background,· and the resulting impairment of mental
or emotional processes and behavior controls, ruled his violent reaction
in the same manner that the behavior of a paranoid schizophrenic
may be ruled by his ·mental condition.·· Whether this impairment
amounted to an ·abnormal condition of the mind· is, in my opinion,
at best an academic question. But the consequences we predicate on
the answer may be very meaningful indeed. We have never said that
an exculpatory mental illness must be reflected in some organic or
pathological condition. Nor have we enshrined psychosis as a prerequi-
site of the defense. But our experience has made it clear that the terms
we use···mental disease or defect· and ·abnormal condition of the
mind···carry a distinct flavor of pathology. And they deflect attention
from the crucial, functional question·did the defendant lack the ability
to make any meaningful choice of action·to an artificial and mis-
leading excursion into the thicket of psychiatric diagnosis and nomen-
clature.
It does not necessarily follow, however, that we should push the
responsibility defense to its logical limits and abandon all of the trap-
pings of the medical or disease model. However illogical and disingenu-
ous, that model arguably serves important interests. Primarily, by
offering a rationale for detention of persons who are found not guilty by
reason of ·insanity,· it offers us shelter from a downpour of troublesome
questions. If we were to facilitate Murdock·s defense, as logic and moral-
ity would seem to command, so that a jury might acquit him because
of his ·rotten social background· rather than any treatable mental
illness, the community would have to decide what to do with him.
If acquitted because he lacked responsibility, Murdock would auto-
matically have been committed to St. Elizabeth·s Hospital for further
examination. He could then obtain an unconditional release only upon
the certification of the hospital superintendent ·(1) that such person
has recovered his sanity, (2) that, in the opinion of the superintendent,
such person will not in the reasonable future be dangerous to himself
or others.
.
.
.·· Plainly, the Hospital would find it difficult to justify
holding Murdock on the grounds that he was insane in any conventional
sense. None of the psychiatrists who testified at trial, including those
from St. Elizabeth·s, suggested that his ·sanity· had ever been ·esi
Nevertheless, Murdock may well be dangerous. We have no care-
fully-crafted technique for resolving the complex of legal, moral, and
598
IV/GENERAL PRINCIPLES OF DEFENSE
political questions concealed in the determination of dangerousness.
Regrettably, those questions are now decided, at least in the first in-
stance, ie oe ists. We can only speculate on the outcome of their
inquiry.
[W]e
e sacrifice a great deal by discouraging Murdock·s responsibility
defense. If we could remove the practical impediments to the free flow
of information we might begin to learn something about the causes of
crime. We might discover, for example, that there is a significant causal
relationship between violent criminal behavior and a ·rotten social
background.· That realization would require us to consider, for exam-
ple, whether income redistribution and social reconstruction are indis-
pensable first steps toward solving the problem of violent crime.
. Itis a critical responsibility of courts, legislatures and commen-
tators to undertake a purposive analysis of the responsibility defense,
instead of merely paying it lip-service in deference to its historical
significance and our ··liberal· consciences. Under each of the prevailing
tests of criminal responsibility, the operation of the defense has been
haphazard, perfunctory, and virtually inexplicable. If we cannot over-
come the irrational operation of the defense, we May have no honest
choice but to abandon i
it and hold all persons criminally responsible
for oo action.
McGowan, Circuit Judge:
The tragic and senseless events giving rise to these appeals are a
recurring byproduct of a society which, unable as yet to eliminate explo-
sive racial tensions, appears equally paralyzed to deny easy access to
guns. Cultural infantilism of this kind inevitably exacts a high price,
which in this instance was paid by the two young officers who were
killed. The ultimate responsibility for their deaths reaches far beyond
these appellants.
As courts, however, we administer a system of justice which is limited
in its reach. We deal only with those formally accused under laws which
define criminal accountability narrowly. Our function on these appeals
is to determine whether appellants had a fair opportunity to defend
themselves, and were tried and sentenced according to law.
Judge Bazelon
.
.
. finds reversal to be compelled by reason of a
statement made to the jury by. the.court.in.the course of
its instructions.
The bare words used are nota faulty statement of the law. They remind
the jury that the issue before them for decision is not one of the
shortcomings of society generally, but rather that of appellant Murdock·s
criminal responsibility for the illegal acts of which he had earlier been
found guilty; and, the court added in the next breath, that issue turns
on ·whether [appellant] had an abnormal condition of the mind that
affected his emotional and behavioral processes at the time of the
CHAPTER 16 EXCUSES
599
offense.· This last is, of course, an unexceptionable statement of what
we have declared to be the law in this jurisdiction.
.
.
.
(Affirmed. ]
Questions
ST
SP
SPE
SES OSE SES
1. Edward Drum and My Lon. Does Edward Drum, now 19, have a
defense under the Model Penal Code? Explain why or why not for each
of the possibilities (self-defense, lesser evils, insanity, duress, immaturity,
or other)? Does My Lon have a defense under the Code? Should either
Edward Drum or My Lon have a defense, in your view? Does one have
a better claim to a defense than the other?
2. Prisoners of War and Radical Environmentalists. When the ··brain-
washed· actor that Delgado describes (such as a prisoner of war)
commits an offense in furtherance of his induced belief system, after
brainwashing is complete, will he qualify for a defense under the
Model Penal Code? Assume
an
actor
is coercively indoctrinated
(using techniques used on POWs) to believe that protection of the
environment
is more important than any single human
life and,
because of this belief, he assassinates the president of a chemical
company that he thinks is ruining the environment. Will this actor
have a defense under the Model Penal Code? Review each of the
possibilities. Should either the POW or the radical environmentalist
have a defense, in your view?
3. ·Rotten Social Background.· The defendant in Alexander argues,
in part, that his social environment during his childhood shaped his
value system, that he is not responsible for creating this environment
or for its effects on him, and that the offense charged is in large part
a result of these effects of his rotten social background. Judge Bazelon
agrees that this issue should have been presented to the jury. What are
the arguments against this view? How is Alexander·s situation different
from and how is it similar to that of Edward Drum and My Lon? How
is it different from and similar to that of prisoners of war and the
coercively-induced radical environmentalist? What facts in each case
make the case more or less appealing for exculpation?
4. Alexander and the Durham ·Product· Test. Recall that Judge Ba-
zelon was the author of the Durham case (see the insanity discussion in
Section 16.2), which was overruled by the court in Brawner, the year
before Alexander. Does this suggest another reason why the majority
600
IV/GENERAL PRINCIPLES OF DEFENSE
People v. Kimura
·A ·Cultural Defense· at Issue in Trial·
=
Los Angeles·When 32-year-old Fumiko Kimura decided to kill
herself·decided to walk into the icy cold Pacific Ocean to escape her
humiliation and shame·she was essentially alone. She had no close
friends, no job and a second husband who had just admitted he'd been
cheating on her for three years. When she walked into the ocean one
blustery January day, she did it quietly, clutching her two beloved chil-
dren to her breast, trying to escape without bothering anyone. It was
the way she would have done it in Japan.
Seven months later, as she sits in a Los Angeles women·s jail await-
ing trial on charges of first- -degree murder, Kimura,
, ironically, i
is alone no
ioneen
SEL a Ne
Suddenly·too late·she has _··friends.·· She has a husband who
visits her every day. She receives hundreds of letters from strangers in
Japan and around the United States. She has become a symbol to the
Los Angeles Japanese-American and immigrant community, a challenge
for attorneys and a cause celebre in the Japanese press.
But she does not have what she wants most, her children.
After 15 minutes
of gulping down salt water and holding her chil-
dren·s heads under water, Kimura was pulled out by two college students.
She survived. Her children, four-year-old son Kazutaka and six-month-
old daughter Yuri, did ·not.
If she goes to trial Oct. 21, as scheduled, Kimura will face the death
penalty. But attorneys for both sides are trying to reach an agreement
that would prevent the case from reaching trial.
Kimura·s case raises the issue of whether one·s cultural background
can_be used as a.defense for having committed acts that may be typical
in the homeland but illegal in the Umea States. In Los Angeles, where
the influx of several hundred thousand Asians during the last tén years
has brought their numbers to 15 percent of the city·s population, the
problem is especially acute.
No one doubts that Kimura, despondent over her marriage, was
doing what she thought best. Oyako-shinju, or parent-child suicide, oc-
curs about once a day i
in Japan and is considered honorable, although
not legal. A parent who survives usually is put on probation or given a
lightsentente:
«4 «| => + Sa
ee
A parent who left the.children-behind would be fiercely.criticized.
Not only would leaving the children put a burden on someone else or
force the children to fend for themselves, but it would strap them with
a legacy of shame and possibly discrimination for having had a parent
CHAPTER 16
EXCUSES
601
But if the American judicial system were to make allowances for
all the foreign practices brought here by immigrants, were to allow
ignorance to be an excuse, the ·cultural defense· would become a
buzzword for chaos and crime, say some opponents of the concept.
But in Kimura·s case, the cultural influence cannot be ignored.
The problem i
is how much weight to give teat
·Tt·s not the same situation as when a woman kills her kids because
she·s tired of having them around,·· said Deputy District Attorney
Lauren Weis. ·The jury must decide: Is she a criminal who is a danger
to society, to herself, to other kids in the future?·
·The cultural aspect comes into it, but there are so many different
cultures here, you can·t really start letting people off for that sort of
thing,· she said. ·Kimura
was living in America. She can·t-forget that.·
Weis, who noted that she had not heard of another oyako-shinju
case in the United States, said she was not eager to try Kimura and
would be willing to enter into plea-bargaining. She is waiting for proof
that Kimura was mentally unstable at the time of the suicide attempt.
If there was nothing mentally wrong with Kimura, Weis said, the
state cannot afford to go easy on her.
¥
~ ·We'd be saying to everyone of Japanese culture that it·s OK to
go out and kill your children, when it·s not,· she said. ·I want a good
psychiatric report that we can hang our hat on.·
Kimura stands charged of first-degree murder with the special
circumstances of multiple deaths. If special circumstances are proved,
the state could seek the death penalty.
If defense attorneys can prove that Kimura was mentally disturbed,
however, the charge could be reduced to manslaughter·which implies
that there was no intent to commit murder·the special circumstances
would be thrown out, and the death penalty would be out of range.
The jury could seek a sentence as light as several years· probation
and psychiatric treatment.
Los Angeles attorney Ben Takahashi, who has written about the
case for a Japanese newspaper, said a similar story would not be big
news···maybe five or six lines····in Japan. ·Any punishment would be
light,· he said, ···because everyone would understand why the parent
had committed oyako-shinju.·
Questions
CN
aaa,
1. The Cultural Defense in Kimura. How is the Kimura case similar and
different from the cases described earlier in this Section? Does it present
a stronger or weaker case for exculpation than each of the other cases?