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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

An Appellate Lawyer Goes to Trial . . . That Sounds Mental (and it is)

Updated: Nov 22, 2022

Today I second-chaired a criminal trial.  Why was an appellate lawyer doing real lawyer work?  Well, primarily because in this case (and in a related case that will be tried in about 2 months) there was initially a concern that there would be a significant appellate issue.  As it turned out today, we never even reached that issue and got an appropriate result. For reasons of confidentiality (although this was a public trial, I do not wish to bring any more attention to the case than is warranted), I won’t go into to details.  However, the issue we thought might need to be preserved for appeal was whether Virginia’s new “mental health evidence” law has opened the door, if just a crack, for obtaining an acquittal or a reduced offense based on the defendant’s diminished capacity/culpability.

For those not in the know, until July 1, 2021, in Virginia you could not introduce evidence of the defendant having a mental disease, mental defect, or developmental delay during the guilt determination of the trial unless you were seeking an acquittal by reason of insanity.  In Virginia, an insanity defense is applicable only if at the time of the offense(s) the defendant was “incapable of understanding the wrongfulness of his act,” which is often called the M’naughten Rule, or the defendant was acting under an “irresistible impulse.”

The M’naughten rule was formulated as a reaction to the acquittal in 1843 of Daniel M’naghten on the charge of murdering Edwaed Drummond. M’naghten had shot Drummond after mistakenly identifying him as UK Prime Minister Robert Peel, who was the intended target. The House of Lords asked a panel of judges, presided over by Sir Nicolas Conyngham Tindal, Chief Justice of the Common Pleas, a series of hypothetical questions about the defense of insanity. The principles expounded by this panel have come to be known as the “M’Naghten Rules”, though they have gained any status only by usage in the common law and M’Naghten himself would have been found guilty if they had been applied at his trial.

Although the panel offered several rules, the one that has received the most widespread use relates specifically to whether a defendant can be held liable for an action that he did not perceive to be wrong.  The judges said that “the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” For much the remainder of the 19th century and through the first half of the 20th century, this standard for insanity became the rule in almost all courts that derive their procedures from English common law, including most states in the US.

A second test, somewhat more recent in origin, is the “irresistible impulse test” in which the defendant, while aware that what he is doing is criminal, is compelled to commit the offense.  This test is sometimes called the “cop at the elbow” scenario, essentially maintaining that the defendant would have committed the crime even if the police were standing right beside him telling him it was a crime.

Apart from these two circumstances, mental illness was not a basis for exculpating a defendant of criminal liability, but could only be used to mitigate his punishment.  Indeed, in four US states and in many other criminal justice systems, the concept of using insanity as a defense is rejected flat out, allowing only for consideration of the punishment.

By the latter half of the 20th century, criminal justice reform had started to allow for consideration of mental illness to mitigate, or even exculpate, a defendant even when the defendant understood the wrongfulness of the act and was not action under an irresistible impulse.  Though known by various names, this practice has generally been referred to as the “diminished capacity” defense.  In very simple terms, its presents the argument that the defendant’s mental illness kept him from forming a rational intent to commit the crime, even while knowing that it was a crime.

Virginia has never adopted a diminished capacity defense, but this did not stop defense attorneys from trying to bring in evidence of a defendant’s mental illness even where an insanity defense was not being offered. So in 1985, the Supreme Court of Virginia was asked to decide whether such evidence was admissible in the guilt phase of a criminal trial. In Stamper v. Commonwealth, the Court held that such evidence was not relevant to proving the guilt or innocence in absence of a claim of insanity.  As the Court put it, “there is no sliding scale of insanity.”

And so the law remained until the 2021 Special Session of the General Assembly.  Taking up a bill that had been continued from the regular session, the legislature “overruled” Stamper by creating a specific statutory authorization under Code § 19.2-271.6 to admit evidence of a mental disease or defect or a developmental disability if such evidence tended to show that the defendant “did not have the intent required for offense charged.”  The evidence has to be otherwise admissible, and it must be established that the defendant has the disease, defect or delay, although the manner for doing so is not clearly set out in the law. The law also does not clearly require a court to conduct a commitment proceeding if the defendant is acquitted, though it makes reference to the court being permitted (or rather not being limited in its authority) to enter an emergency custody order and schedule such proceeding.

So what is the significance of this new law?  No one really knows, and that is why an appellate lawyer was second chairing a felony trial today, because there was a real possibility that the issue was going to come up.  As it turned out, it didn’t, because the trial court found that the evidence was sufficient to find that defendant was legally insane at the time of the offenses under the M’naughten rule.  While the court expressed some concern about one of the charges, it ultimately ruled that while the defendant had the burden of establishing insanity, the Commonwealth still retained the burden of proving guilt beyond a reasonable doubt, and in this instance the evidence that the defendant was mentally ill was sufficient to raise a doubt as to whether, absent that illness, he would have acted as he did, the court concluded that in his mental state it was not shown that he did understand the wrongfulness of his act, and as one witness opined that he did not, the defense prevailed.

So for the moment, we will not have a case on the application of Code § 19.2-271.6 to take up on appeal.  But there will have to be one, eventually.  The best possible interpretation (from the defense perspective) would be to treat the evidence as admissible to establish a “but for” principle. That is, “but for the mental illness, the defendant would not have committed the crime.”

For example, suppose the defendant “John Doe” believes himself to be Willie Sutton, the bank robber who when asked why he robbed banks, famously replied “Because that’s where the money is.” (Sutton denied having said it, saying that the reporter who attributed it to him made it up, but later said that had he been asked the question he might have said that, but would more likely have replied, “Because I enjoyed it.”).  Now Sutton knew that robbing banks was a criminal offense, and so does the defendant.  He commits the crimes because he enjoys it, or perhaps because that’s where the money is.  But he is not Willie Sutton, and if he wasn’t mentally ill, he wouldn’t ever dream of robbing a bank.

Under the M’naughten rule, an expert would have to opine that John Doe didn’t appreciate the wrongfulness of his acts when he believed that he was Willie Sutton and it was Sutton, not Doe, who was robbing banks.  The defense might find an expert willing to make this very fine distinction — i.e. that while John Doe as Willie Sutton knew robbing banks was a crime, he wasn’t able to appreciate that it was John Doe committing the crime, so Doe didn’t know that Doe was doing something wrong. That may be a hard sell to a judge or jury, especially as the Commonwealth will find an expert who will say “Hogwash.”

Similarly, an expert might be willing to say that John Does was acting under an irresistible impulse to commit bank robberies because “Willie Sutton” was in effect compelling him to do so.  Again, this will be a hard sell.

But no expert would have any difficulty in opining that John Doe wouldn’t commit bank robberies if he were not mentally ill — provided they were certain it was true and his belief that he was Sutton not merely an act. Therein lies the difficulty in convincing a court, especially an appellate court, to adopt a “but for” standard — it make mental health evidence too tempting for the defendant to suddenly realize that he must have been crazy.

I think a more likely outcome will be that the Court takes the legislature at its word and decides that the evidence must show that because of the mental illness “the defendant did not have the intent required for the offense charged.”  In other words, the evidence will most likely be used to reduce, rather than eliminate, culpability for an offense.  This is sometimes called “diminished responsibility.” This is most often applied to reduce a charge of murder to manslaughter as, for example, where the defendant believed that the victim was someone who had committed a horrible crime and “deserved” to die, even while knowing that vigilante justice was wrong.  If it was simply a case of mistaken identity, the crime would still be murder; but if the defendant’s mental illness caused him to believe incorrectly that his neighbor was secretly a pedophile or rapist, it might warrant a reduction in the charge and possible a suspended sentence with a civil commitment for treatment.

To reach this point, the law will probably be used by a reform-minded prosecutor to strike a plea bargain with a defendant, and may never reach an appellate court for imprimatur if the trial court is willing to accept the plea and, perhaps an agreed sentence that includes mental health treatment.  I think a trial court will be far less likely to permit a defendant to make such an argument to a jury, and it might reach the appellate courts that way.  Time will tell.

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