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Argument recap: Who makes law?


A close student of the criminal law who did not sit in on Wednesday’s Supreme Court argument in a Michigan murder case missed a fascinating — and far from conclusive — seminar on who makes criminal law: courts that rule, legislatures that write laws, lawyers who try to assert defenses, prosecutors who don’t object to such defenses, or a force that might be called “The Great Mentioner”?  One lawyer said only legislators, but the other said all of the above.

Hearing the case of Metrish v. Lancaster (docket 12-547), the Supreme Court was trying to figure out when, if ever, an individual accused in Michigan of committing a crime could make a claim that a “diminished capacity” mentally made him do it.   While the lawyer for the state of Michigan insisted, repeatedly, that it was an easy case, his opposing counsel made a persistent effort to show that it was anything but.

The exploration ranged so far that Justice Anthony M. Kennedy suggested at one point that. if the Court were to rule for the lawyer pressing the long list of law-givers, that would change the whole “dynamic” of how state courts rule on developing issues in the criminal law.  Not at all, the lawyer seemed to say in response.

At times, though, the argument did come down from its philosophical heights to a mere counting of numbers, was the score “1 to 0” or was it “37 to 0”?  At that point, though, the Justices seemed to be just fumbling, not dealing in legal principle, and that might have reflected the potential difficulty in deciding the case.

This case is centered on the “diminished capacity” defense — a claim, short of an assertion of complete insanity, that an accused person might make to show that some mental incapacity was behind criminal behavior, preventing that person from forming the intent to break the law.  A former Detroit police officer prosecuted for murdering his girlfriend tried twice to make that defense, but the jury didn’t accept it in his first trial, and the judge would not let him even put it forth in the second trial.  The Sixth Circuit Court, however, has come to his rescue, and ordered the state to try him again, and allow him to make that claim.

Two things about the recognition of that defense in Michigan seemed, on Wednesday, to be clear: it did exist, under a 1973 state court decision, and it definitely ceased to exist in a Michigan Supreme Court decision in 2001.  But it was what happened in between that occupied the two lawyers and the Justices in the Lancaster case.

Michigan’s state solicitor general, John J. Bursch, told the Court that, as a “code state,” whatever the legislature writes into law about criminal defenses is totally binding, and no state court can add a defense not explicitly included in a statute.  The 1973 decision acknowledging the defense, Bursch said, ceases to exist two years later when the legislature drafted new criminal laws and left out that defense.

It was totally unsurprising, and not at all unfair, the state’s lawyer contended, when the state’s highest court in 2001 ruled that the defense did not exist, and applied that retroactively to Lancaster’s case, so that he was not entitled to claim that defense at either of his trials — even at the first of his trials six years before, in 1995.  It was neither unexpected nor indefensible, Bursch said.

Beginning with Justice Ruth Bader Ginsburg, the Court wanted to know what the law in Michigan was between 1973 and 2001.  Bursch said over and over again that not a single case in any court, in that period, based the final outcome of the case on that defense.  That, he suggested, is part of why the case was so easy, for the state.

The truly interesting aspect of a number of those exchanges over Michigan history was that some members of the Court — like Justice Samuel A. Alito, Jr. — said that the federal courts have to take the law as it is pronounced by state courts, and not second-guess state courts, while others — like Justice Sonia Sotomayor — said that that is not necessarily so, that maybe a state court might get it wrong.  That prompted Justice Antonin Scalia to move in to help the state’s lawyer, by suggesting that his primary argument should be that the law as it came from the legislature was perfectly clear — no “diminished capacity” defense.  “It’s clear because it’s clear,” Scalia said.

Bursch’s time at the lectern, though, was noticeably less challenging than would be the situation for his adversary, Lancaster’s lawyer, Kenneth M. Mogill of Lake Orion, Michigan.  Not easily perturbed, Mogill went through a dizzying array of questions about the development of criminal law in Michigan and held steadily to his argument that the “diminished capacity” defense was “firmly established.”

What was his evidence for that?  It started with the state court ruling in 1973, but then in the years after that, leading up to 2001, defense lawyers repeatedly pressed the defense (obviously believing that it existed), prosecutors did not object (seemingly conceding that it existed), the state courts “mentioned” the defense 130 times, and a state bar committee wrote model jury instructions that recognized its existence.

Therefore, Mogill argued, it was “fundamentally unfair” to Lancaster for the Michigan Supreme Court to take the defense away from him retroactively in 2001, eight years after the crime to which he wanted to assert the defense.

Justice Scalia promptly commented, though, that “there is a lot of question whether it would’ve been successful…Do you contest that there’s no case that holds [that the defense exists], that let somebody walk?”  Mogill said that had happened in the 1973 case, when a state appeals court ruled that a mother accused of starving her infant to death could bring in evidence of “diminished capacity.”  It also happened again in a state supreme court order in 1989, he said.

The lawyer also said that the issue would not be likely to go up on appeal very often, because a defense lawyer would raise it, a prosecutor would not object, and then it was up to the jury to accept or reject the defense.   But, he contrasted that with the list of 130 incidents in which a state appeals court did mention the defense, as if it did exist.

That list set off Justice Stephen G. Breyer into counting numbers.  He concluded that Mogill had just one on his side, the 1973 decision, “exactly one case on point,” so it’s “one for you, zero for them” — because there was no decision that expressly upheld the exclusion of the defense.

Justice Sotomayor suggested that, “if everybody agrees” that the defense existed,trial judges are not going to bar it.  But Mogill countered that its existence was so widely assumed to exist that prosecutors did not contest it.  Again, he mentioned the number of mentions in appeals court opinions, leading Justice Breyer to give that phenomenon a label: “The Great Mentioner.”   If mention was common, Breyer said, it was no surprise that lawyers would try to apply it.

Shortly after that, Justice Kennedy stepped in with a cautionary comment.  If Mogill wins the case, “it will change the dynamic of state supreme courts.  Like us, they wait for court of appeals decisions, they wait for applications of a law, they wait for scholarly commentary.  If you prevail, even if they don’t want to rush in, they will have to, because if they don’t, the issue is going to be foreclosed.  It will be a dynamic of the federal courts intruding on how state courts decide the law.”

Mogill said “I disagree.”  The Michigan Supreme Court, he allowed, is entitled to decide the law as it wants, but that then has to be judged on whether the result was “consistent with fundamental fairness.”  That is a constitutional issue, when a state court applied a denial of a defense retroactively.”

But, Justice Samuel A. Alito, Jr., asked: “What is the unfairness here?”   Lancaster’s lawyer said that by eliminating the defense retroactively for Lancaster, his crime was expanded into premeditated murder.  It “aggravated the offense; that was fundamental unfairness.”

Well, Alito followed up, “what is the constitutional principle?”  The lawyer said that his client had a right to assert the defense at the time of the offense, and the Michigan state court took that away after the fact — a due process violation.  The defense, he said, relying upon his version of the litigation history over the defense, “was thoroughly established, and he had a right to rely on it.”

Justice Breyer stepped in with a final challenge.  If the courts allow the bar associations, in drafting jury instructions, to decide what the law is, that is worrisome, Breyer said, “when you try to create a coherent system of law.”   Mogill said Michigan had not turned the issue over to bar associations, but the jury instructions that were crafted by lawyers were evidence that the defense was available and suspects could seek to rely upon it.

The state’s lawyer, Bursch, had left thirteen minutes for rebuttal (an indication of his easy time in the first part of his argument), but much of the time was used up with exploring the numbers of mentions of the defense by state courts, and what that did, or did not, signify.  Before sitting down, Bursch also aimed a general complaint about the Sixth Circuit Court, saying “the problem here” is that the Sixth Circuit “yet again has signified” its disdain for state courts.

Justice Scalia had the last word: “You want us to write ‘yet again’ in the opinion?”  There was no doubt that Bursch would be happy to have that.

Recommended Citation: Lyle Denniston, Argument recap: Who makes law?, SCOTUSblog (Apr. 24, 2013, 2:43 PM),