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Argument preview: Taking away a defense to crime

At 10 a.m. tomorrow, on the final scheduled day of oral argument in this Term, the Supreme Court will hold a one-hour hearing on when it is unconstitutional for government to abolish a legal defense to a criminal charge.  At issue in the case of Metrish v. Lancaster (docket 12-547) is the “diminished capacity” defense.  Arguing for the state of Michigan will be its state Solicitor General, John H. Bursch of Lansing.  Arguing for a Detroit man, Burt Lancaster, will be Kenneth Mogill of the Lake Orion, Michigan, law firm of Mogill, Posner & Cohen.


For more than three decades, a controversy has persisted over the right of an individual on trial to claim that the crime was a result of a “diminished capacity” to control behavior.  That claim was an alternative to one about actual insanity, because the alternative focused on an impairment — perhaps quite short in duration — of the capacity to form criminal intent.

The controversy actually can be traced to a flawed beginning: the news media’s choice of an incorrect phrase, the “Twinkie defense,” to describe how lawyers used a “diminished capacity” argument in a well-known San Francisco murder trial.  Whatever the defense may be called popularly, the Supreme Court is now facing a test of whether that defense can be abolished without violating the Constitution.

In the 1979 trial of San Francisco City Supervisor Dan White, for the murder of the city’s mayor and other city supervisor, White’s lawyers argued that the crime was a result of serious depression.  As part of their efforts to convince the jury of that, his lawyers contended that the depression had led the once health-conscious White to eat a lot of junk food, including the super-sweet Hostess Twinkies.

The argument worked: the jury opted to convict White, not of murder, but of voluntary manslaughter, leading to a much lower prison term.  But the news media quickly gave the defense a name, reflecting a misperception that White had claimed that his mental capacity was diminished by eating Twinkies.  His lawyers had argued, rather, that eating junk food was a symptom of depression, and it was the depression that was the reason he killed.  (After serving five years in prison, White committed suicide.)

The uproar over White’s conviction for the lesser crime led the voters of California in 1982 to abolish that defense, and replace it with a defense that was more difficult to claim.   California reportedly was the first state to allow the defense, beginning in 1949.

The “diminished capacity” defense was abolished in Michigan in 2001 in less dramatic fashion:  the Michigan Supreme Court ruled that the legislature, in revising the state’s mental capacity defense law, had twice made no mention of this particular version of the defense.  Thus, the state court concluded, it simply no longer existed in the state.

That ruling had a direct impact on a former Detroit police officer who faced a murder charge for murdering his girlfriend in 1993.   The former officer, who had a history of mental problems, was named Burt Lancaster (no relation to the famous movie star of the same name, who died in 1994).

Lancaster allegedly told his mother that his girlfriend, Toni King, had lied to him and that she needed to die.   He took a gun from a hallway closet, and followed in his car as his girlfriend went to a Southfield, Michigan, restaurant for lunch with a friend.  Police later charged that Lancaster shot his girlfriend dead outside the restaurant.

His lawyers had claimed “diminished capacity” at his trial in 1994, but the jury rejected the defense and found him guilty of murder and of using a gun for the crime.   That conviction was overturned over a flaw in jury selection, but prosecutors put him on trial again in 2005.  His lawyers were going to use the “diminished capacity” defense again but they could not, because of the Michigan Supreme Court decision four years earlier finding that the defense no longer existed.  He was convicted and was sentenced to a life-plus-two-years sentence.

Lancaster’s lawyers ultimately claimed, in a federal habeas challenge to his conviction, that the defense had been available to him at his first trial, and that its abolition for his second trial violated his right to due process.  He claimed that the defense did exist at the time of his first trial, and the law at the time of the trial should govern his case at the retrial in 2005.  By finding in 2001 that the defense no longer existed, Lancaster asserted, the state court had retroactively abolished a defense he should have had when put on trial anew.

That argument failed in the district court, but a divided Sixth Circuit Court accepted it.  The state either had to begin a new trial, at which Lancaster could use the defense, or else release him, the Circuit Court ruled.   The Sixth Circuit majority said that the Supreme Court had often recognized the due process principle that a criminal law must give fair warning of what conduct is a crime.   The precedents, the majority said, are based on the status of the law at the time of the crime.

A state, that opinion added, is allowed to abolish a defense that previously existed, but it may not do so retroactively if that is done unexpectedly — that is, in a way that could not be foreseen.  The defense had existed in Michigan since 1973, the Circuit Court found, and had been recognized repeatedly by state courts, giving it a strong “foothold” in the state’s law.  Thus, it violated due process for the Michigan court to take it away, and deny it retroactively to Lancaster, the ruling said.

Petition for certiorari

State officials in Michigan took the case on to the Supreme Court last October.  They raised two questions: whether the abolition of the defense by a state court ruling was “unexpected and indefensible” under prior Supreme Court rulings on retroactivity, and whether the retroactive application of the state court ruling was an error that justified a court victory for Lancaster.

Supported by nine other states, Michigan contended that the “diminished capacity” defense has been seriously criticized in recent years, and so it could hardly come as a surprise when a state opted to take it away.  Mentioning the controversy over the so-called “Twinkie defense,” the state argued that the “diminished capacity” was in decline in states long before Lancaster’s trials.

The petition argued that the Sixth Circuit ruling conflicted with Supreme Court precedent on retroactivity (especially Rogers v. Tennessee in 2001), and that the Sixth Circuit had violated the federal habeas law from 1996 sharply limiting the capacity of federal courts to second-guess state courts’ decisions.

Abolishing this defense, the petition contended, was not so far out of bounds as to be beyond fair disagreement, and thus there was no justification for the Circuit Court to reject the state courts’ choice to apply the abolition retroactively.

Lancaster’s lawyers urged the Supreme Court not to hear the case.  There is no split in the federal appeals courts on the issue, the brief in opposition argued, and there is no credible argument that the Sixth Circuit misapplied the Supreme Court’s precedents.  Furthermore, it contended, this case is a “poor vehicle” for considering the issues posed by the state, because it is bounded by its special facts.

Relying upon the same principal rulings by the Justices on retroactivity doctrine, the opposition brief said they work in Lancaster’s favor, because they demonstrate that the issues the state was seeking to raise had long since been settled.

It quarreled with the substance of the Michigan Supreme Court decision, especially how it interpreted the state legislature’s criminal law revisions without mentioning the “diminished capacity” defense.

The Court granted review of the Michigan petition on January 18.

Briefs on the merits

The state’s brief on the merits urged the Court to focus on three aspects of retroactivity principles: “notice, foreseeability, and fair warnings.”

On the notice issue, it contended that the key date on abolition of the “diminished capacity” defense in Michigan was criminal law revisions legislation passed by the state legislature in 1975, eighteen years before Lancaster’s crime, and not the Michigan Supreme Court ruling in 2001. While some state courts after 1975 had assumed that the defense still existed, the brief argued, it was never codified and it never served as a basis for a decision in any murder case.

On the foreseeability and fair warnings issues, the brief again relied on what it deemed the loss of “credibility” of this defense across the nation, and asserted that this showed that it was no surprise that the Michigan court would join in the developing trend.

Finally, on the habeas law’s limitation on federal courts’ review of state court decisions on criminal law, the state brief asserted again, as in its petition, that the Michigan abolition of the defense did not amount to a clear error of law that was “beyond any possibility for fairminded disagreement.”

Lancaster’s lawyers interpreted the state’s history on the issue in a markedly different way, pointing to the defense’ original recognition in a 1973 state appeals court ruling, that the defense was “recognized and accepted in over 130 published and unpublished Michigan appellate decisions,” was never questioned by members of the state’s highest courts, and was so widely in use that it became a part of the state’s standard jury instructions — eight years before the crime Lancaster was convicted of committing.

In the face of that account of history, the Lancaster merits brief said that the Michigan Supreme Court’s decision in 2001 was “unreasonable.”  Even in that case, the brief said, state prosecutors had conceded in lower courts that the defense was available, and only challenged it before the Michigan Supreme Court when that tribunal had agreed to hear an entirely different issue.

The state court decision also was “indefensible,” the Lancaster filing contended, because the “diminished capacity” defense is “well-grounded in modern medical and psychological science and helps to produce fairer and more just results.”  It has even come into use, the brief added, for soldiers returning from battle zones with post-traumatic stress ailments and for women who are the victims of battering.

The grouping of states in support of Michigan rose to fifteen at the merits stage.  The amici states relied heavily upon an argument that those who commit crimes do not have a claim that they lacked fair warning about the change in a legal defense, because they do not carry out their crimes based on an understanding of the defenses that they will be able to bring forth once they are prosecuted. The state also picked up the support of prosecutors in Wayne County, Michigan.

Lancaster has drawn the support of the National Association of Criminal Defense Lawyers, contending that both defense lawyers and prosecutors need to know what legal rules govern criminal cases, so that they understand how to make “charging decisions, negotiating pleas, and planning for trial.”   They should not be put in the position, the brief contended, of having to guess what changes are likely to be made in criminal law.


The Court’s task in this case may be made more difficult by the deep contradiction in the way the two sides interpret the history of the “diminished capacity” defense in Michigan.  Those two histories simply cannot be reconciled: one of them has to have it right on when the defense actually went out of existence, because that is crucial to the timing issue — and therefore to the question of retroactivity.

If the defense was abolished by the legislature in 1975, that should be the end of Lancaster’s claim that he was entitled to use the defense at his trial years later, and can have no grievance about the state court’s decision in 2001.   If, however, the defense was viable across Michigan right up until the 2001 decision of its highest court, then the retroactivity issue is front-and-center before the Court.

The Justices are not fond of, nor very good at, reconstructing facts on their own, and that is close to what they might have to do to pick one of the histories as the controlling narrative.

Since both sides are relying primarily upon the same Supreme Court precedents, sorting out which version to accept may be the easiest thing for the Court to do: it is very good at parsing its own past work.  One of those interpretations of cases like Rogers v. Tennessee has to be more compelling than the other.

If there is a “sleeper” issue in the case, it is the issue the state raised in its second question at the petition stage: has the Sixth Circuit shown a sufficient respect for the judgments of Michigan state courts as they worked their way toward abolition of the defense in the 2001 decision.   The state has not relied as heavily upon that argument as on the retroactivity contentions, but that may be its most useful contention.   It has felt a need a few times in recent years to correct the Sixth Circuit in its interpretations of habeas doctrine, and so may look with somewhat greater skepticism at this ruling.


Recommended Citation: Lyle Denniston, Argument preview: Taking away a defense to crime, SCOTUSblog (Apr. 23, 2013, 9:11 PM),