735 F.2d 1033 (7th Cir. 1984), 83-2186, Morgan v. Israel

Docket Nº:83-2186.
Citation:735 F.2d 1033
Party Name:Robert James MORGAN, Petitioner-Appellant, v. Thomas R. ISRAEL and Bronson C. LaFollette, Respondents-Appellees.
Case Date:May 31, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1033

735 F.2d 1033 (7th Cir. 1984)

Robert James MORGAN, Petitioner-Appellant,


Thomas R. ISRAEL and Bronson C. LaFollette, Respondents-Appellees.

No. 83-2186.

United States Court of Appeals, Seventh Circuit

May 31, 1984

Argued Feb. 13, 1984.

Page 1034

Richard D. Martin, State Public Defender, Madison, Wis., for petitioner-appellant.

Stephen Kleinmaier, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for respondents-appellees.

Before PELL and POSNER, Circuit Judges, and PARSONS, Senior District Judge. [*]

POSNER, Circuit Judge.

This appeal from the denial of a petition for a writ of habeas corpus requires us to consider once again the federal constitutional implications of Wisconsin's procedure for determining whether a criminal defendant should be acquitted because he is insane. See Wis.Stat. Sec. 971.175; Muench v. Israel, 715 F.2d 1124, 1131-33 (7th Cir.1983); Weber v. Israel, 730 F.2d 499 (7th Cir.1984); MacBain, The Insanity Defense: Conceptual Confusion and the Erosion of Fairness, 67 Marq.L.Rev. 1 (1983). Robert Morgan was charged in 1975 with the first-degree murder (conviction of which in Wisconsin carries with it a mandatory sentence of life imprisonment) of George Mallason. He pleaded not guilty, then changed his plea to not guilty by reason of insanity. Under Wisconsin procedure such a plea is an admission of guilt subject to a reservation of the defense of insanity. Therefore, when a defendant pleads not guilty by reason of insanity his trial is confined to the issue of insanity, which he has the burden of proving by a preponderance of the evidence. Wis.Stat. Sec. 971.15(3). The test for insanity is that of the American Law Institute's Model Penal Code Sec. 4.01(1) (Proposed Official Draft 1962): "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacked substantial capacity either to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of law." Wis.Stat. Sec. 971.15(1). If a defendant wants to contest other issues as well as insanity, he should plead not guilty. The jury will hear the other issues first, will decide whether the defendant is guilty (without regard to his sanity), and then, if it decides he is, will proceed to consider whether he should nonetheless be acquitted because he was insane. Wis.Stat. Sec. 971.175. Psychiatric evidence is inadmissible in the first stage of the trial, even if the defendant's intent is in issue. Steele v. State, 97 Wis.2d 72, 81-85, 93, 294 N.W.2d 2, 7-8, 14 (1980). We upheld the constitutionality of this exclusion in Muench v. Israel, supra, 715 F.2d at 1137-44.

Morgan was found guilty, and after exhausting his state remedies brought this federal habeas corpus proceeding. He argues that he did not understand that by pleading not guilty by reason of insanity he was giving up his right to show that he did not have a criminal intent when he killed Mallason, and that therefore he did not knowingly waive his constitutional right to trial by jury and should be granted a new trial. The district court thought his allegations sufficiently substantial to warrant a hearing. Morgan, and his lawyer at the time of his prosecution, testified...

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