Clark v. Arizona - Oral Argument

Argument of David I. Goldberg

Chief Justice Roberts: We'll hear argument next in Clark versus Arizona.

Mr. Goldberg.

Mr. Goldberg: Mr. Chief Justice, and may it please the Court--

Eric Michael Clark was denied his fourteenth amendment right to a fair trial.

Arizona law defined the cognitive elements of first degree murder as requiring proof beyond a reasonable doubt that Eric Clark intentionally and knowingly shot and killed a police officer in the line of duty.

The State of Arizona was permitted to offer facts to circumstantially prove these mental and essential requisite elements of mens rea.

Under the rule espoused by the Arizona Supreme Court in State versus Mott, as we have been calling it, "the Mott rule", this evidence, as offered by the defense both in lay testimony and expert testimony, was arbitrarily categorically excluded as a rule of evidence that's unsupported by any valid State purpose.

In this case--

Chief Justice Roberts: It was excluded with respect to mens rea, but, of course, all of the evidence came in with respect to the insanity defense.

Mr. Goldberg: --It came in, yes, Mr. Chief Justice, as to the insanity defense, but could only be considered if Eric knew right from wrong.

It cannot be considered because of the peculiar adoption of an amendment to 13-502, which is the Arizona insanity statute, that eliminated consideration of the nature and quality of his acts.

Justice Kennedy: Is--

Chief Justice Roberts: Well--

Justice Kennedy: --the State telling us... and we'll ask the State when they argue... but is the State telling us that it has defined "intent" in a particular way for this, so that "intent" is just having the purpose to cause the result--

Mr. Goldberg: If they were--

Justice Kennedy: --and, therefore, that this testimony is irrelevant?

Is that the State's argument, as you understand it?

Mr. Goldberg: --As I understand the State's argument, they are adopting what Justice Ginsburg wrote in Montana v. Egelhoff, that the State, by enacting this rule, has made this a substantive choice to make evidence of mental illness irrelevant.

However, Arizona did not do that, and Arizona did not argue that, below.

Below, Arizona argued, repeatedly, that Eric Clark knew this was a police officer, that Eric Clark intentionally shot a police officer.

On appeal, they argued the same thing.

In the appellate decision in this case, by the Court of Appeals of the State of Arizona, the State... I raised a challenge to the sufficiency of the evidence in addressing that issue.

And this is in the joint appendix at... one... if I could have one moment... begins on page 330 of the joint appendix... 336, and proceeds through the court's discussion of the sufficiency of the evidence, in paragraph 17.

The court concluded that there was sufficient evidence from which a reasonable finder of fact could conclude... and it states,

"reasonable inference thereupon that Clark knowingly and intentionally shot Moritz, and knew that he was a police officer when he did so. "

There's repeated references that the Arizona Court of Appeals did not understand that Arizona had somehow, by adoption of the Mott rule, decided to redefine the crime of first degree murder, and... as it... we point in our opening brief, they could not constitutionally do so.

Justice Ginsburg: Well, what--

Justice Souter: Well, do you take that... please.

Justice Ginsburg: --What do you make of the very name that the State gave, not acquitted by reason... not not guilty by reason of insanity, but guilty, except insane.

Guilty of what?

Guilty of the charge.

And the charge is first degree murder.

So, even if insanity is found, apparently that's defined to be

"guilty of the charge, except insane. "

therefore not subject to criminal punishment.

Mr. Goldberg: That's correct, Justice Ginsburg.

However, guilty of the charge, based on the State's evidence, without any consideration of the defendant's evidence.

In this case--

Chief Justice Roberts: --But--

Mr. Goldberg: --we offered 16 lay witnesses and their testimony, in addition to the experts.

And I want to point this... make this point clear.

The State wants you to believe that this issue only involves psychiatric expert testimony.

It does not.

And it involves lay fact evidence, just as in any trial.

But these 16 lay witnesses talked about--

Chief Justice Roberts: --But the lay... I'm sorry.

That was my question.

The lay--

Mr. Goldberg: --These lay witnesses--

Chief Justice Roberts: --witnesses still talked about his mental state, correct?

Mr. Goldberg: --That's correct.

But the trial judge ruled, under Mott, that he was precluded from considering all mental health evidence, all evidence of mental disease or defect, on the issue of mens rea.

So, even though it was admitted, and there's no quarrel here that all of the evidence that we sought to present was admitted, it was not considered by the trial judge.

He could not.

Because the Mott rule itself is categorical.

And I quote from the Mott decision, as follows,

"Arizona does not allow evidence of a defendant's mental disorder, short of insanity, either as an affirmative defense or to negate the mens rea elements of a crime. "

That states "all evidence", and the trial judge understood it to mean that, and that's the way it is applied in--

Justice Breyer: No--

Mr. Goldberg: --Arizona.

Justice Breyer: --what they have here... the... what the SG says... which seems right to me, and I would like you to explain why it wasn't... is that as far as the insanity defense is concerned, that everyone in Arizona agrees that you consider whether he knows right from wrong in respect to this act.

Thus, if he thinks the truckdriver is an alien, or he thinks he's an animal, and has a serious mental problem in knowing what's going on, that comes right in, as it did here, because it's relevant to whether he knew it was right or wrong to shoot this person.

And, therefore, once I read that, I thought there is not, at least in this case, a question of whether the insanity defense is complete, because it is.

Everything that you wanted to introduce was introduced.

And, indeed, it was considered, properly, under the insanity defense.

And if you had convinced the jury, you would... or the... I guess, the jury... you would have won on that.

Now, am I... what's wrong with what I've just said?

Mr. Goldberg: There is a distinction between nature and quality of one's acts and knowing whether an act is right or wrong.

And the State's and the United States position here is not supported by the history of the development of M'Naghten nor the ALI version of the Model Penal Code.

Justice Breyer: Yes, but I'm interested in Arizona, remember.

I'm not... what I'm interested in is whether if you say,

"Judge, I am going to prove the following. "

"My client knows right from wrong, in general, but he thought that the truckdriver was a wild animal, and that delusion meant that he is so insane, he could not have formed the necessary intent. "

The judge replies,

"You can bring that in, because if he thought the driver was a mental... was a wild animal, he did not know right from wrong in respect to this killing. "

Now, is that what happened--

Mr. Goldberg: No--

Justice Breyer: --in effect?

Or would... did the judge say,

"You may not introduce that evidence, because it is not relevant? "

Mr. Goldberg: --No, Justice... the trial judge ruled that we could offer the evidence, because we were not before a jury, and the judge was the trier of fact.

And he stated so, that he would separate out, for himself, what he could consider and what he could not.

And his verdict in this case, on the "guilty, except insane", focused only on whether Eric knew right from wrong.

Justice Breyer: In this case.

Mr. Goldberg: In this case--

Justice Breyer: Well, fine.

So, then, what is... would... if he thought it was a wild animal, then he would not have known right from wrong in respect to killing that individual.

Mr. Goldberg: --But that is not the State's point, or... nor the United States Government's point in this case.

Justice Breyer: It isn't.

Mr. Goldberg: Their point is that the former is subsumed in the latter.

In other words, it makes no difference.

But the Arizona Court... the Arizona Supreme Court, in a State Court decision, State versus Chavez, indicated otherwise.

Justice Breyer: No, but whether it--

Justice Kennedy: Well, I guess maybe the question is, What is your point?

And I have the same question as Justice Breyer, and I'd just like to pursue that.

If a case, a hypothetical case, is one in which the second prong of M'Naghten, knowing the difference in right and wrong, gets to the question of his capacity to form an intent, isn't that sufficient?

I think that's Justice Breyer's question.

Mr. Goldberg: It would, if Arizona allowed consideration of that evidence.

And it does not, at all.

Justice Kennedy: But let's--

Mr. Goldberg: Now--

Justice Souter: Yes, but whether it does or--

Justice Kennedy: --let's assume that it can consider the evidence as to... on the right and wrong prong.

Mr. Goldberg: --The right and wrong prong--

Justice Kennedy: Does the hypothetical state--

Mr. Goldberg: --In a hypothetical--

Justice Kennedy: --that says, "We'll let this evidence"--

Mr. Goldberg: --In a hypothetical--

Justice Kennedy: "# in under the right and wrong aspect of M'Naghten, but not under the nature and quality of the act. "

Mr. Goldberg: --And your question is whether--

Justice Kennedy: Why that isn't sufficient to answer your contention that his intent is not... has not been subject to question.

Mr. Goldberg: --Because, first of all, it is not offered and is not considered to specifically determine whether it rebuts an inference that the State has raised on factual point key to their case.

Secondly, the nature and quality is not a consideration in Arizona.

Justice Kennedy: What they said--

Mr. Goldberg: And even if it was... and I would... can point this out by an example that gets to what Justice Breyer was saying... if a person is squeezing a lemon... and this is a common example in law school... and it turns out to be his sister... he knows, in the abstract, that a person... killing a person is right or wrong.

He knows it's wrong.

But he does not know that squeezing a lemon is wrong.

In this case, if Eric Clark's evidence showed that he believed the police officer was an alien, and there was substantial evidence in the record to that effect... and I would specifically point you to page 39 in the joint appendix, where the... where the expert testified that Eric had a heightened fear of police--

Justice Kennedy: --Well, I'll look at M'Naghten.

I had thought it was whether or not the action was right and wrong, whether... rather than the... than the... than the moral command was wrong.

Mr. Goldberg: --That is correct.

That is correct, Justice Kennedy.

Justice Breyer: --Then, what do you do--

Justice Souter: --Then what you're saying, if I understand it, is that when the Arizona statute refers to whether or not the criminal act was wrong, the criminal act that they are referring to, on your view, is the act of intentional killing, period.

And if that's what they mean, then it is irrelevant that he thought he was killing a Martian.

But if the Arizona reference to the criminal act being wrong refers to the act in this case... i.e., killing somebody you believe is a Martian... then the evidence could come in.

So, I think your argument means... your argument rests on the assumption that the Arizona statute's reference to the criminal act being wrong means the criminal act, in general, in the abstract... i.e., intentional killing... as distinct from the act of killing somebody you believe to be a Martian.

Is that correct?

Mr. Goldberg: Absolutely.

That's not--

Justice Souter: Okay.

Mr. Goldberg: --that's not--

Justice Breyer: --All right, if that's--

Mr. Goldberg: --the end of it, as well.

And the Model Penal Code makes this point when they talk about their formulation, which is a... whether a defendant appreciates the wrongfulness of his conduct.

And they, in their discussions, had indicated... and these are on pages 166 and 169 of the ALI comments to the Model Penal Code... that M'Naghten could, under any formulation... a person could, in the abstract, know that killing is wrong, but could also, in the... in the... their subjective mental state, due to their mental disease, not know that they were killing a human being.

Justice Breyer: --But the Arizona Court, the Court of Appeals, writes that it turns on the finding of criminal responsibility at the time of the criminal offense.

It is difficult to imagine that a defendant who did not appreciate the nature and quality of the act he committed would reasonably be able to perceive that the act was wrong.

Now, those words, written by the Arizona Court, suggested to me that, in the case of the lemon you're talking about, or in the case of the individual who thinks that the truckdriver was a Martian, they would say he does not know right from wrong, here, now, in this case.

That, it seemed to me, is what the Court of Appeals wrote.

Mr. Goldberg: That--

Justice Breyer: And if that's what they wrote, then they don't adopt the test you're attacking; rather, they do let the very evidence that you want to come in, come in, and it is totally relevant.

Mr. Goldberg: --They would, if it was not inconsistent with previous pronouncements of this very same court.

But, although it is... it is error to not instruct a jury on both prongs when Arizona had both prongs, it was harm... deemed harmless error in State versus Chavez.

But if--

Justice Kennedy: Well, but--

Mr. Goldberg: --But not--

Justice Kennedy: --if Justice Breyer--

Mr. Goldberg: --but that it was error, because they are distinct.

They are distinct elements.

And that is to suggest that a psychiatric psychosis is pervasive throughout an entire person's living.

Justice Kennedy: --But if Justice--

Mr. Goldberg: But--

Justice Kennedy: --Breyer's explanation is a correct statement of Arizona law, do you still have an argument that your proof should have been accepted, on the first prong?

Mr. Goldberg: --Yes.

Justice Kennedy: And what is that argument?

Mr. Goldberg: The argument is that the State proved, circumstantially, his mental state.

The judge, as the finder of fact, never... and stated so in his ruling on this issue... could consider the lay testimony and the expert testimony on whether it raised a doubt, a single reasonable doubt as to the State's position.

And I can point this out on four facts.

First of all, the State sought to prove intent and knowledge.

They did so by first arguing that Eric's conduct, in driving around the neighborhood with the music playing loud, was to lure a police officer.

This is in the record at... on August 5th, in the opening statement by the State's attorney, page 15; on August 27th, at page 50; and that's in the joint appendix, at 314, in their closing argument.

Chief Justice Roberts: And your evidence to the contrary that was excluded would have showed what?

Mr. Goldberg: That it was equally plausible that he was driving around with his music playing loud because he was drowning out the voices in his head, which were--

Chief Justice Roberts: So, it went to diminished mental capacity.

And as I understand Arizona law, it has decided that that evidence can only be presented in the context of an insanity defense.

Mr. Goldberg: --And that is unconstitutional, Mr. Chief Justice.

Justice Souter: You mean--

Mr. Goldberg: First of all--

Justice Souter: --the Constitution--

Mr. Goldberg: --these are facts--

Justice Souter: --requires a diminished capacity defense?

Mr. Goldberg: --No, not the defense.

There's a very subtle, but important, distinction between the diminished capacity defense as an affirmative defense and diminished capacity evidence.

And it's a shame that--

Justice Souter: Well, if you're going to let the evidence of diminished capacity in, on mens rea, you've done, by... as it were, by the front door, what you can't do by the back door... i.e., by a diminished capacity defense... because you're making the same point.

The burdens of proof are different, but you're making the same point.

Mr. Goldberg: --Well, the burdens of proof goes to whether, if we did not... if we did not prevail... or we did prevail on the second issue, the... whether M'Naghten allows consideration of this... whether it makes a difference.

In that situation, the burden of proof is on us, by clear and convincing--

Justice Souter: Do you... do you think it is unconstitutional for a State to say,

"We know perfectly well that it is much more difficult for both cognitive and reason... reasons... and reasons of character and training and so on, for some people to conform themselves to the criminal law than others. "

"We know it's harder for some than others. "

"But we don't care how much harder it is, unless it gets to the point that we define as insanity. "

"Because unless we require something as serious as insanity to excuse, everybody's going to have an excuse, and there isn't going to be any criminal law. "

--is that unconstitutional?

Mr. Goldberg: --No, it's not.

Justice Souter: Okay.

Mr. Goldberg: But the--

Justice Souter: Isn't that what the State does when it denies a diminished capacity... says,

"We will not have a diminished capacity defense? "

Mr. Goldberg: --If it is framed as a defense, yes, but if--

Justice Souter: Okay.

Now--

Mr. Goldberg: --it is framed--

Justice Souter: --isn't--

Mr. Goldberg: --as simply--

Justice Souter: --No, but isn't--

Mr. Goldberg: --they... evidence--

Justice Souter: --With respect, isn't that also what the State is getting at when it says,

"We don't allow diminished capacity evidence in on mens rea, which is the State's burden. "

"Rather, we allow it in only on the defense of insanity, so that we can keep it clear, clear that unless the diminished capacity is so great as to amount to insanity, it's not an excuse? "

And if that is what the State is doing, is there any... anything unconstitutional about that?

Mr. Goldberg: --The unconstitutionality of that... of that procedure is that the State's evidence goes uncontested.

The State's evidence... the State's evidence... and this has been fundamental to prove mens rea, along with actus, is a fundamental right of the defendant to present a defense to that.

And we're talking about presenting facts, not having--

Chief Justice Roberts: Well, but it only--

Mr. Goldberg: --a psychiatrist get up there--

Chief Justice Roberts: --goes uncontested--

Mr. Goldberg: --and--

Chief Justice Roberts: --it only goes uncontested if the only way you're going to contest it is to show diminished capacity.

You could have contested this evidence by showing that, you know, he was a in a rock band, and he wanted to play the music for... to advertise the concert, not to lure the police.

There are a lot of defenses you can present.

What they're saying is, if it goes to diminished capacity, that has to be used to show insanity or not... or nothing at all.

Mr. Goldberg: --But their justifications for this rule, Mr. Chief Justice, are that it's not reliable.

And it is reliable evidence.

Both the lay testimony and expert testimony is admitted by the State for other purposes, as well as for the defense in other purposes, and has been found reliable.

And this is cited in footnote 15 of our reply brief.

Justice Ginsburg: Mr. Goldberg, may I ask you to clarify one thing about your argument?

You say that you should have permitted... been permitted to introduce this evidence to show that this act was not... the "act" being, kill a police officer... was not done intentionally or knowingly.

But you seem to indicate that Clark could have been convicted, under the Arizona code, of some degree of murder.

Am I right about that?

And, if so, what degree?

Mr. Goldberg: Absolutely, Your Honor.

Our position... and I stated this, in fact, in my opening statement to the court, as well as in our motion for a directed verdict after the close of the State's evidence... was that if the court found that the State had failed to prove, considering all the evidence, including the evidence of his mental illness, that he did not know he was killing a police officer, then he would be found guilty of second degree murder or manslaughter.

And that would be our position as to why this is unconstitutional, in part, because the State chose to define a specific crime as requiring that cognitive element that he knew he was killing a police officer and then--

Justice Ginsburg: And what would--

Mr. Goldberg: --sought--

Justice Ginsburg: --What--

Mr. Goldberg: --to preclude any consideration of evidence that indicated the contrary.

Justice Ginsburg: --What was the second... the definition of "second degree"?

Mr. Goldberg: "Second degree murder" is defined as intentional murder, without premeditation.

That's one form of second degree murder in Arizona.

Now, I want--

Justice Ginsburg: Well, what--

Mr. Goldberg: --to get back to--

Justice Ginsburg: --May I just ask, what... if the proof you'd like to introduce is that the defendant considered the police officer to be an alien, why would he have any intent?

Why wouldn't your argument go, as well, to second degree?

Mr. Goldberg: --Because if he knew he was killing what he believed to be a alien who had taken over a human form, then he may have known that he was killing somebody, but not that it was a police officer, because, in his mind, he believed that the police officer was an alien.

Justice Scalia: But it doesn't go to premeditation.

I think that's Justice Ginsburg's point.

And I don't see why that isn't correct.

It doesn't got to premeditation.

Mr. Goldberg: No, Justice Scalia, but he was not charged with a premeditated murder.

Justice Scalia: No, but you're saying... you're saying he could have been charged with second degree murder--

Mr. Goldberg: As intentional murder.

Justice Scalia: --because... what?

Mr. Goldberg: Because the... because the crime of second degree murder... because this is a unique--

Justice Scalia: Does not require premeditation.

And I--

Mr. Goldberg: --Right.

Justice Scalia: --don't see how this goes to premeditation, anyway.

Mr. Goldberg: Does not go to premeditation.

Goes to the question of whether he knowingly killed a police officer.

If you take... second degree murder is... includes all the elements of this particular first degree murder statute and adds one, and that one element is knowledge and intent to kill a police officer.

And that's the additional element that makes second degree a lesser included defense of first degree.

And the judge was precluded from considering the fact evidence in this case that indicated that Eric was delusional, that he was schizophrenic, that he was actively delusional at the time of the crime, and he believed that its... our town had been inhabited by aliens.

Justice Breyer: All right, suppose he did, he believed there... it's an alien, which is not immoral, to kill an alien, let's say, if he comes from Mars.

I don't know about the morality of that, but--

[Laughter]

--I'll go with you.

I'll say that you're absolutely right about that.

Now, suppose, in addition, the judge did consider that.

He did consider it, because he thought the person wouldn't know right from wrong if he thought this was an alien.

All right?

A space alien.

Now, suppose that's true.

Then what is the problem, from a due process point of view?

After all, you were able to make your claim there.

The judge would have heard the evidence.

And if the judge believed that that was so, he would have acquitted the individual.

Does there remain a due process problem?

Mr. Goldberg: Not if it could be considered as to going to the element, no.

But that's not this case.

Justice Breyer: Actually, I was--

Mr. Goldberg: It does not go to the mental state, in this case, because Arizona law, under State v. Mott, precludes its consideration for that purpose--

Justice Breyer: --Well, suppose--

Mr. Goldberg: --for any purpose other than--

Justice Breyer: --I read State v.--

Mr. Goldberg: --whether we made the--

Justice Breyer: --Mott--

Mr. Goldberg: --other than whether we meet our burden of proving he is insane, by clear and convincing evidence.

Justice Kennedy: Is it your argument that it... under Arizona law, it goes to excuse the conduct, but not whether the conduct, in fact, occurred?

Mr. Goldberg: It does.

Justice Kennedy: I mean, is that your argument?

Mr. Goldberg: That's the way the Arizona--

Justice Kennedy: Is that your argument?

Mr. Goldberg: --Yes.

Yes.

Well, that's the way the Arizona rule is drafted.

It can go to... if we can convince the trier of fact that it... that his delusions prevent him from knowing the nature and quality of his acts, if that was actually included in our statute.

But, in our case, we were limited to trying to prove his delusional behavior, his delusional beliefs that the officer was an alien, to show that he did not know right from wrong.

And that was it.

And that places the burden on us, which runs counter to the fundamental principles of criminal law that are set down in Winship, that it's the State's burden to prove, beyond a reasonable doubt, every element, including this element, and not without any opportunity of the defense to rebut that element.

Justice Breyer: --Well, that's a different question.

If, in fact, it came in via the insanity defense, I guess the burden is on the defendant to prove it.

Is--

Mr. Goldberg: Correct.

Justice Breyer: --that true?

Well, if it comes in via mens rea, then the burden is on the State to disprove it.

Mr. Goldberg: No, the burden's not on the State to disprove it, Justice--

Justice Breyer: Doesn't the State have to prove, beyond a reasonable doubt, if it came in via mens rea, that the mens rea was there?

Mr. Goldberg: --Absolutely.

The burden never--

Justice Breyer: And so, the State--

Mr. Goldberg: --shifts from the State.

Justice Breyer: --would have to show that, in fact, he was not so insane as to preclude intent.

Mr. Goldberg: In a technical sense, yes.

But, as a practical matter, no, because the State would be offering all of their evidence, as they did here, to show that, circumstantially, he had the intent.

We would be offering the evidence, which is regularly accepted and is found reliable for numerous purposes in our State, to show that there's a doubt as to whether he had that.

And that's a completely different thing than the State attempting... having the burden on them to disprove it, which this Court has so said in affirmative defense cases involving self defense, for example, that the State does not have to disprove that a person was justified or had a reasonable belief for their safety, but that they... and in the same token, you cannot prevent the jury from considering whether that raises a doubt as to the State's case.

And that is the fundamental problem, the fundamental due process violation here.

If there are no further questions, I'd like to reserve the rest.

Argument of Randall M. Howe

Chief Justice Roberts: Thank you, Mr. Goldberg.

Mr. Howe, we'll hear now from you.

Mr. Howe: Mr. Chief Justice, may it please the Court--

The answer to both questions before this Court today, Do States have the... have the discretion to define it... to define the affirmative defense of insanity as the policymakers see fit?

And they also have the right to protect that definition by... as Justice Souter's questions indicated... from an... from an attack on that definition by having evidence of diminished capacity of a different... a different definition of "insanity" from coming in the back door.

Justice Kennedy: Well, to prevail, do you think you have to show that, under prong two of M'Naghten, the right and wrong prong, that the defendant can prove really everything, and, in fact, did have the opportunity to prove everything, that he seeks to prove under prong one?

If it's... do you have to convince us of that in order to win?

Mr. Howe: I... no, Your Honor.

There are two answers to that.

The first answer is that the M'Naghten definition of "insanity", the heart of it, has always been the right/wrong test.

And this Court, in Leland, and, I believe, in Powell, as well, have in... have always referred to M'Naghten as the "right/wrong test".

State courts across the country, they go--

Chief Justice Roberts: But it's clear, Counsel, though, that the first prong of M'Naghten adds something different,

"You don't understand the nature and quality of your acts. "

In other words, it would be enough, if you recognized both prongs, if he thought this was a Martian, regardless of whether he knew it was wrong to kill a Martian or not.

Mr. Howe: --Yes, that's correct, Your Honor.

But as the lower courts spoke in M'Naghten, we don't look at the... at the... at the act in the abstract.

As the... as the Solicitor General's brief points out, it says in here, at page 16, that what the traditional M'Naghten test looks at was his very conduct.

And as the Arizona Court of Appeals noted, it would be... it would be difficult to imagine a situation where someone would know his conduct was wrong, but not know the nature of his act.

And I won't pretend that perhaps in some theoretical hypothetical scenario that might... you know, that might occur.

But it's very difficult, indeed, to imagine that.

And the Arizona Legislature rationally could, you know... could have, you know, decided that they will... that they will reduce the definition to the heart of M'Naghten, which is right/wrong, because the... you know, the issue of... will rarely, if ever, come up.

Justice Kennedy: But I am correct in assuming that it is... and tell me if I'm wrong... that it is your position, the State's position, that, under the right/wrong prong two part of M'Naghten, and under the evidence in this case, the court was able to consider, really, all of the evidence that's necessary in order to meet this defendant's defense as to... as to intent.

Mr. Howe: Yes, Your Honor.

And so--

Justice Kennedy: And I agree with you.

I'm trying to think of some theoretical case where it would make a difference.

I can't quite come up with a hypothetical.

Mr. Howe: --And I've... you know, I've worked with this case for several months, Your Honor, and I haven't come up with one either.

Justice Souter: Well, wouldn't it make a difference in a case in which an individual understands, number one, as a general matter, that it is wrong to kill people intentionally?

He also believes that there are space aliens.

And he believes that it is wrong to kill space aliens.

But he kills one.

Under the full M'Naghten test, under prong one, he would have a defense.

But under the M'Naghten test of prong two alone, since he believed it was wrong to kill Martians, he wouldn't have a defense.

Isn't that right?

Mr. Howe: No, Your Honor, for two reasons.

The first reason is that the heart of the M'Naghten test is knowing right from wrong.

And if a State, in its... in its discretion, wants to say that those... that the State will not account for those rare cases where it might make a difference, a State could do that.

The second answer, Your Honor, is, as M'Naghten says, at page 723, what we look at when we're examining whether the defendant knew right from wrong, is his... is the very conduct that he committed.

Justice Stevens: Counsel, I'm puzzled about one thing.

I just... maybe it's just my stupidity.

But assume he thought it was a Martian, and assume he thought... does he have to think it was wrong to kill Martians?

Or supposing he thinks it is not wrong to kill Martians, then what do you do?

Does it matter whether he thinks it's right or wrong to kill Martians, in other words?

Mr. Howe: My point, Your Honor, is, if he is not actually killing a space alien, there is grave doubt that he would understand his conduct, and that would make rather meaningless, at some practical level, asking the question,

"Did you know that your conduct was wrong? "

Justice Stevens: I'm not sure I understand the answer.

I... that... is it... does he... let me put it this way, and maybe you can answer yes or no.

Mr. Howe: Sure.

Justice Stevens: Does he have to think it's wrong to kill Martians?

Mr. Howe: No, Your Honor.

What he... what he has to understand is what he is actually doing.

And if he doesn't actually understand that he is killing a human being, then it's rather academic, in abstract, to ask,

"Did you know whether that... did you know what you thought you were doing was wrong? "

But at... you know, but, again, I suppose, hypothetically, there may be... you know, there may be a case where that would make a difference.

But the State is clearly free to recognize that that's an incredibly rare circumstance and that,

"As a matter of policy, we're not going to clutter up the definition of "insanity" with that. "

It could... you know, adding that language, a policymaker could very well decide that would be distracting to a jury or a factfinder.

Justice Stevens: The thing that troubles me, just to... and then you can comment on it... I'm assuming it's possible they thought he didn't know whether it was a Martian or not, and that he thought he had a mission in life to kill Martians, that they're enemies, they're bad to come, and he wants to kill 'em.

If that was the... what the trial court found, could he be put to death for that killing?

Mr. Howe: That would raise serious eighth amendment concerns, Your Honor, and--

Justice Stevens: Or could he just be found guilty of murder, or whatever, on those facts?

Mr. Howe: --If he truly believed that he was shooting an alien when he was actually shooting a human being, he would... he would certainly have, you know, a very strong case for insanity.

But what the factfinder found here was that... but... was that his... was that his evidence that that's what he thought he was doing was--

Justice Stevens: No, but there's a--

Mr. Howe: --insufficient.

Justice Stevens: --difference in the burden of proof.

He has the burden of proof to get the affirmative defense or to get the... in that category.

Mr. Howe: Surely.

Justice Stevens: And I'm just wondering if he's... just raises a doubt as... so there's not proof beyond a reasonable doubt that he knew the person he was killing was either a human being or an... a kind of individual that it would be wrong to kill.

Mr. Howe: Well--

Justice Stevens: If there's just a reasonable doubt on the issue--

Mr. Howe: --Well--

Justice Stevens: --would he be guilty, or not?

Mr. Howe: --Well, Your Honor, that raises the second issue that we're... that we're discussing today, that, you know, the State, as I've argued, has the right to define "insanity" as it... as it sees fit.

And if you... if you... if a... if a State allows evidence, that doesn't rise to the standard of insanity, to come in, then you... then he's able to raise whatever his personal definition of "insanity" is through the back door.

And the State has a great interest in preserving its definition of "insanity", and its ability to define "insanity" as it sees fit by, as we argued--

Justice Stevens: But, as you say, it's... in a way, it's... in a sense, it comes in through the back door, as you say, but, even coming in through the back door, if it raises a reasonable doubt as to his intent to kill a... make a wrongful killing, why shouldn't it be admissible?

Mr. Howe: --It should... it isn't... it isn't admissible, Your... a State can preclude it, Your Honor, because the State has the definite right to define the element of mens rea, and it is... again, as it sees fit.

And as--

Justice Kennedy: Does that mean that it could also exclude the testimony from the lay people or the friends who talked about this person's illness?

Mr. Howe: --It--

Justice Kennedy: Or are we just talking about the expert testimony?

Mr. Howe: --Evidence of mental disease or defect, whether it's expert testimony or lay testimony, does not come in under Mott.

Justice Ginsburg: Mr. Howe, would you explain to me how the State has proved intentional... not intentional killing, but of a police officer?

If that's the charge, that he intended to kill a police officer, how does the State meet its burden on a police officer if the testimony on the other side is,

"I did not understand that this human that I killed was a police officer? "

Mr. Howe: What the... what the State proved in this case, Your Honor, is that, at least, you know, 2 weeks prior to the murder, he indicated a desire to do... to do something extremely similar to what he... you know, to what he actually did.

There was testimony he had... he had an extreme dislike toward police officers.

On the... at the time of the killing, Officer Moritz was in... was in a marked police car, he had a uniform, he turned on his lights and siren, and Clark... you know--

Justice Ginsburg: I see that on the--

Mr. Howe: --pulled over.

Justice Ginsburg: --the State side, so the State has introduced evidence from which a trier could conclude he intended to kill a police officer.

But he wants to introduce, on the other side,

"I didn't have that intent. "

"In fact, I had delusions. "

"I thought I killed an alien. "

But he's not allowed to introduce that evidence--

Mr. Howe: Yes--

Justice Ginsburg: --to counter--

Mr. Howe: --Your Honor.

Justice Ginsburg: --the State's proof, as I understand what the Arizona law is.

Mr. Howe: Sure.

What the Arizona Supreme Court recognized in Mott was... what the Arizona Legislature did when it enacted its criminal code and it defined its mens rea, it defined the mens rea in such a way policy... you know, just as you... you know, just as you explained in Egelhoff, Your Honor, that the... that the condition of mental disease or defect does not negate the mens rea.

So, what the State has... what the State has to prove, in general, and had to prove in this specific case, is, the State had to prove that Clark either, one, actually had the... had the intent to kill a police officer, at least knowing he was a police officer, or killed under... or killed under circumstances that would indicate that he, knowing... at least knowingly killed a police officer, but for his mental illness.

It's--

Justice Kennedy: Is this an alternative argument, so that, if we accept this argument, we need not ask whether the evidence comes in under prong two, or is this complementary to the argument that the evidence comes in under prong two?

Mr. Howe: --I... I'm not quite sure how to answer that, Your Honor.

What we... what we've argued, the... you know, as far as the first issue, is that a State is free to define "insanity" as it... as it sees fit, under most, if not all, cases... or most, if all real cases.

Chief Justice Roberts: Why is that, Counsel?

Let's suppose that the... one of the cases that come up is a language difficulty.

The individual... maybe he's not in uniform... identifies himself as a police officer.

Could the State have a rule that,

"We are not going to allow evidence of language concerns. "

that the individual didn't speak English, and the officer said, "I'm a police officer", so he didn't know, when he shot him?

What is it about mental capacity that allows you to exclude that type of evidence?

Mr. Howe: Surely, Your Honor.

This Court has always noted that evidence of mental disease or defect is viewed quite skeptically, because lawyers and psychiatrists and psychologists very often can't agree on the meaning or the value or the validity of psychiatric evidence.

The State also has an... has an interest in preventing someone, who has... you know, who... there's at least a serious question of mental illness, from being able to forgo an insanity defense, but raise evidence to negate mens rea, in the hopes that he would walk free instead of being found "guilty, except insane", and sent to the State hospital.

There's also... you know, a third policy reason, that, because you... in your... because the... you know, because the gross question of whether someone is insane or sane is a difficult enough question with psychiatric evidence, it raises... it raises the question to a whole other level of complexity to ask the juries,

"Well, if we... if you find that he is sane, but he has some degree of mental illness, just find... you know, just how did that mental illness affect his ability to intend. "

And the State, as a matter of policy, you know, may properly say,

"That is... you know, we're finally able to determine whether someone's insane or not. "

but it's just too complex a question to ask the... a jury or a judge, as in this case, to make fine gradations of ability and responsibility.

Justice Ginsburg: Mr. Howe, one of the things that puzzled me about your position is, you said,

"Under Arizona law, while this doesn't come in under mens rea, it does affect sentencing. "

I think you said that the... his mental state is properly taken into account in the sentencing.

And, by that, did you mean just the length of the incarceration, or the place of the incarceration?

Mr. Howe: Your Honor, my time is up.

May--

Chief Justice Roberts: You can... may answer.

Mr. Howe: --Surely.

What... under Arizona law, if you have a mental illness, that does not rise to the level of insanity if the... if the... if the trial court or the jury finds that circumstance exists by a preponderance of the evidence and it can be found as a mitigating circumstance, that he... that can, in a given case, reduce the sentence imposed.

Thank you very much.

Argument of Paul D. Clement

Chief Justice Roberts: Thank you, Mr. Howe.

General Clement, we'll hear now from you.

Mr. Clement: Mr. Chief Justice, and may it please the Court--

Arizona has decided to adopt a particular form of the insanity defense, and it has also decided to protect that substantive decision by channeling evidence about a defendant's mental capacity into an affirmative defense with the burden squarely on the defendant.

Neither aspect of that judgment violates the Federal Constitution.

And I think, with respect to the substantive decision, there are two elements to it.

First of all, Arizona wanted to streamline consideration of M'Naghten and focus on the heart of M'Naghten, which is the right/wrong test.

But, equally important, as far back as 1965, in the Schantz case, where they first came up with the rule applied in Mott, they also wanted to not have a diminished capacity defense in the State of Arizona.

Justice Kennedy: Could the State say that it's the defendant's burden to show that it was not a police officer?

Mr. Clement: I don't think the State... could the State do that?

Is that the question?

Justice Kennedy: Yes.

Mr. Clement: I don't think the State--

Justice Kennedy: Because the next question is, Why didn't they... isn't that what happened here?

Mr. Clement: --Right.

I don't think they could do that.

And I don't think that's what happened here.

And I think if you look at the evidence in this case... I mean, it came in, in sort of a strange way, in part, I think, because it was a bench trial, but I think what the trial court did is say that,

"All of the evidence on insanity, all of the evidence in the second phase of the case, is relevant. "

"It's all coming in. "

"I'm going to take it into consideration, but I'm going to take it into consideration only on the insanity defense, not as part of the mens rea defense. "

And I think that was consistent with Arizona law.

What I think would be a harder question... and let me just say, I think the way that this was postured for the trial court was that the Petitioner argued that all of that evidence comes in for consideration of the mens rea.

Justice Kennedy: It seems to me that you introduced the... my concern by saying that they... the State can put the burden of proof on the defendant, which we know is generally true in many States with reference to the insanity defense.

But when you link it with mens rea, then it seems to me you have a problem.

Mr. Clement: Well, I don't think so, Justice Kennedy, but you're absolutely right to say that there's this tradition with insanity, which is quite different than the tradition with respect to other elements of a crime.

And I think that goes back to the common law, and goes back to Blackstone.

And if you look at Blackstone, and you look at some of the common law cases that this Court cited in its Davis opinion, they describe murder as having several elements.

One of them is obviously killing a person, and one is malice aforethought.

And then, some of the cases treat a sound mind as a separate element.

But, I think, if you look at the history, it's clear it wasn't a true element, because the common law put the... it started with a presumption of sanity, which you couldn't have with respect to any other element, and said it was perfectly appropriate to put the burden on the defendant.

And I think what the common law recognizes is the question of criminal responsibility or insanity, although it has some logical relationship to mens rea, can be separated out and can be dealt with in an affirmative defense.

And I think if you don't recognize the State's ability to do that, you end up allowing a defendant to basically sneak in, through, as Justice Souter put it, the front door, all sorts of watered down insanity defenses in the guise of arguments trying to negate mens rea.

Justice Kennedy: It does seem as if the argument, that,

"Oh, this all comes in under second... under the second prong. "

means that if there's a... there's another inference.

It's a... it's a secondhand argument about lack of mens rea.

Mr. Clement: Well, it... I think, Justice Kennedy, though--

Justice Kennedy: Kind of, the second class--

Mr. Clement: --Well--

Justice Kennedy: --sort of evidence.

Mr. Clement: --I don't think it's second class.

I think what Arizona recognized, in the Schantz case and in Mott, in making this rule in the context of rejecting the diminished capacity defense, is that if you allow a defendant to argue,

"My evidence shows that I lack the capacity to form the requisite mental state; and, therefore, that comes in on the mens rea case. "

you can make that argument in terms of any insanity defense you like.

I can argue that,

"I lack the capacity to form the requisite intent, because I responded to an irresistible impulse. "

Well, a State that's decided to have the M'Naghten insanity defense, rather than the irresistible impulse defense, has to be able to make the judgment, I submit, that,

"We're going to have the M'Naghten defense, and we're going to keep it as an affirmative defense, and we're not going to allow that defense, that we've rejected, to effectively come in through the front door. "

And, to use Justice Souter's--

Justice Breyer: That would present a serious constitutional question, wouldn't it?

Or what... I mean, I... that's... but I thought some of these questions might be in this case, but I now doubt... I'm having doubts about that.

But suppose the State so limits the defense that an individual defendant, who, by any ordinary psychiatric test, would be viewed as seriously insane, and, therefore, not a person who is capable of being held responsible in any moral sense for the crime, is, nonetheless, going to be convicted of murder?

I mean... and that might be... come up with irresistible impulse, because the person is totally insane, not like any other human being.

Anyone would normally say he lacked the knowledge of... he's not responsible for what he does.

And then, the State, nonetheless, convicts him of murder.

Mr. Clement: --But, Justice Breyer, they wouldn't convict him for murder, because he would qualify for an insanity defense.

And somebody as insane as you're--

Justice Breyer: If he knew right from wrong, if they... so, I mean, he... it's not his intellectual capacity that's wrong, it's his ability to control his impulse.

Mr. Clement: --Well, I mean--

Justice Breyer: But that's not in this case, I agree with you.

Mr. Clement: --But--

Justice Breyer: But is a variation of that in this case... namely, the variation... but we've discussed that at length, and I take it you think that's not in this case.

Mr. Clement: --I don't think it's in this case, but I don't want to mislead you, which is as... I think you can hypothesize a situation where somebody would be exonerated by one form of the insanity defense, and not exonerated by a narrow form of the insanity defense.

And I don't think it follows that somebody that's in that margin has a constitutional right to make up the difference, effectively, through a mens rea argument.

And, otherwise, I think you... I mean, you--

Justice Breyer: But we don't have to reach that question here, in your view.

Mr. Clement: --Well, I think you--

Justice Breyer: Or do we?

Mr. Clement: --I would think that you might.

I mean, I think you could say... because I think what happened here is, all of this evidence came in on the back door through the insanity defense.

Justice Breyer: But if we have to reach it, this... they're arguing we do, because they're saying the person is so insane he doesn't know whether this is a human being or a sack of lemons.

Now--

Mr. Clement: But then he--

Justice Breyer: --he said that they didn't consider that in the insanity defense.

And he's not attacking the burden of proof, at least not in this Court.

And so, I... do you think we do have to... that we have to--

Mr. Clement: --I--

Justice Breyer: --assume that he's right on that?

Mr. Clement: --I don't think you have to reach that question here.

But you do have to reach a related question, I think, which is, I think the trial court here very clearly, in applying Mott, prevented the Petitioner from making a diminished capacity argument.

And then--

Justice Breyer: What is "diminished capacity", if it is... what is that?

Mr. Clement: --It's an argument that is basically a variation on the insanity defense.

It's partial responsibility.

It was basically the governing law in California until it was--

Justice Breyer: But partial responsibility does not... insanity... they use the words "insanity" and "diminished responsibility".

I took the word "insanity" to mean the kind of mental state that would, in fact, show a lack of intent.

I took the word "diminished responsibility" to mean there is intent, but it's excusable.

Mr. Clement: --I think you can draw that--

Justice Breyer: Now, am I--

Mr. Clement: --distinction, but I do want to make clear that there are arguments here that you could make in a different State that you can't make in Arizona because of the substantive decision that,

"We don't want to have a diminished capacity defense, and we don't want to have that policy judgment frustrated by having the evidence come in through the front door. "

And to use Justice--

Justice Stevens: May I ask--

Mr. Clement: --Souter's example--

Justice Stevens: --this question?

Supposing the evidence is equally divided on the question of whether he thought it was a Martian who he had a right to kill.

Could he be convicted of murder, constitutionally?

Mr. Clement: --I think he could, Justice Stevens.

As I understand--

Justice Stevens: Because then--

Mr. Clement: --the hypothetical, we're--

Justice Stevens: --there would be--

Mr. Clement: --basically--

Justice Stevens: --not proof beyond a reasonable doubt that he knew he was killing a human being, and it was wrong to do so.

Mr. Clement: --Well, I think it would... it might depend on exactly what the statutory definition of "murder" in the State was.

Justice Stevens: Well, I don't... I don't... I'm just wondering, as a constitutional matter, forgetting all the... as a constitutional matter, can a man be convicted of murder if the evidence is equally balanced on the question of whether he knew it... he did anything wrong and... or knew that he was killing a human being?

Mr. Clement: Maybe not, Justice Stevens.

It just depends on the way that the statute deals with it.

Because, in my view of the statute, if somebody really thought... if they had to kill a human being, and they thought,

"I wasn't doing it. "

"I was killing an alien. "

maybe that could come in, on mens rea, but if--

Justice Scalia: Have we ever held that an insanity defense is required, that a State cannot simply abolish insanity defenses?

Mr. Clement: --No, Justice Scalia, you have not held--

Justice Scalia: I didn't we had.

Mr. Clement: --that.

And I think... but, equally, I don't think a State would... is required to have a diminished capacity defense.

And--

Justice Alito: Well, is a State required to adopt any particular mens rea for murder?

Is there a constitutional requirement as to the minimum mens rea that can be... can be set for the offense of murder?

Mr. Clement: --I don't think so.

I mean, I think it's very difficult to find, in the Due Process Clause, the tools necessary to superintend those kind--

Justice Ginsburg: But here, there--

Mr. Clement: --of decisions.

Justice Ginsburg: --was a charge,

"intended to kill a police officer. "

It could have been just "intended to kill".

And I think Mr. Goldberg conceded that "intended to kill" would have been a proper conviction, but not

"intended to kill a police officer-- "

Mr. Clement: Well--

Justice Ginsburg: --unless he's allowed to counter that add on.

Mr. Clement: --With respect, Justice Ginsburg, I think that starts to confuse the hypotheticals with the real case, because I don't think Petitioner's argument was that they had no idea that this person was a police officer, and he thought he was killing an alien.

I think their argument was much more one for insanity, and that maybe there were other explanations for the conduct.

But the psychological testimony here suggests that maybe he sometimes thought that his mother was also an alien, but he kind of knew it was his mother, as well.

And so, I don't really think that maps up with the argument they've made.

The one point I want to leave you with, though, is, as Justice Souter said, everybody agrees that there's no due process requirement that Arizona have a diminished capacity defense.

Well, it doesn't make any sense to say that they have to have that implicitly with the burden on the State at the same time.

Thank you.

Rebuttal of David I. Goldberg

Chief Justice Roberts: Thank you, General.

Mr. Goldberg, you have 4 minutes remaining.

Mr. Goldberg: There is a due process guarantee that the defendant can present evidence in his own defense.

No matter how the chambers line in the cases reviewed by the court, this Court made clear, in Montana v. Egelhoff, that in the absence of any valid State justification... and I'm quoting now, from the plurality decision...

"exclusion of exculpatory evidence deprives the defendant... it's very basic to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing. "

And that--

Chief Justice Roberts: But that certainly doesn't include the right to present any evidence you want.

Mr. Goldberg: --It's the difference between--

Chief Justice Roberts: You couldn't have presented evidence that this person was, in fact, a Martian.

Mr. Goldberg: --That's correct, Mr. Chief Justice.

And it's not that we're asking to... this Court to affirmatively rule that all of this evidence comes in, just that all of it cannot be excluded, per se, and that the trial judge is, just as in any other type of evidence, any other fact or opinion evidence, serves as the gatekeeper under the rules of evidence to decide whether it's more prejudicial or it's more probative.

But Arizona has decided, only for this purpose, that this evidence is inherently unreliable.

And then they've taken it to the point where they have proven somebody guilty of murder in the first degree of killing a police officer without allowing him to raise a reasonable doubt as to whether he knew he was killing a police officer.

And that specific argument was made, contrary to what the Solicitor just stated, in my motion for directed verdict that I made in this case.

Justice Alito: Was it a reason of... question whether he knew it was a police officer or whether he knew it was a human being?

Mr. Goldberg: Whether it was a police officer.

I moved the court for a directed verdict at the close of the State's evidence, and argued to the court that if he found... the judge, as the factfinder... that, in his delusional mind... and again reurged this at the close of our evidence... that he believed he was killing a police officer, then the court could find him guilty of second degree murder or manslaughter.

And I asked the court to do that, and the court refused to do that.

So, the--

Justice Breyer: In the--

Mr. Goldberg: --court precluded any consideration of this evidence.

Justice Breyer: --Yes, I... the best I can find in that Court of Appeals opinion, at the moment, is that they do reject the idea of diminished responsibility, on Mott... on the ground of Mott.

That's true.

They say, "Don't even consider it".

But I didn't think diminished responsibility went to the question of whether he had the requisite intent.

I thought insanity went to that, as they use those words.

What is "diminished responsibility", if it isn't,

"We admit the intent... we admit that he intended to kill the individual, knew it was wrong, but he isn't as responsible as an ordinary person would be? "

What is--

Mr. Goldberg: It's not--

Justice Breyer: --it, if it isn't that?

Mr. Goldberg: --It's a fact that... a fact that he did not know he was killing a police officer.

Justice Breyer: He thought he was killing another individual.

Mr. Goldberg: Correct.

Justice Breyer: Does that--

Mr. Goldberg: Or an alien.

Justice Breyer: --Does the State have to... does the Constitution have to let you off if that's the situation?

Mr. Goldberg: It's not "let you off", with all due respect.

It's "judge somebody based on"--

Justice Breyer: Yes, you--

Mr. Goldberg: --"# their personal"--

Justice Breyer: --All right, but--

Mr. Goldberg: --"# culpability".

Justice Breyer: --but does the State have to say,

"We are going to convict you of a lesser offense. "

in the Constitution?

Mr. Goldberg: The State... the State has to allow the defendant to present his evidence and have it considered, if it's relevant, nonprivileged, and reliable, for a proper purpose.

And here, it was offered for a proper purpose, just as in Chambers and in Rock, and in all the cases that have been before this Court, where this Court has held so.

I wanted to add... answer one question that was raised earlier about whether a State could define "murder" without a requisite mens rea, essentially, which is... or a specific intent, as the State seems to suggest that Arizona has done, inferentially, under the Mott decision.

This Court held, in 1895, in Davis versus United States, that, "No one"... and I'm quoting here...

"No one, we assume, would wish either the courts or juries, when trying a case of murder, to disregard the main principle existing at common law and recognized in all cases tending to support the charge below to make a complete crime cognizable by human laws, which includes mens rea and an actus rea. "

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.