Morgan v. Israel, 83-2186

Decision Date31 May 1984
Docket NumberNo. 83-2186,83-2186
PartiesRobert James MORGAN, Petitioner-Appellant, v. Thomas R. ISRAEL and Bronson C. LaFollette, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

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. The district court concluded that Morgan had knowingly waived his right to a trial of the issue of intent, and therefore denied the petition for habeas corpus.

Morgan argues, not without considerable force, that the reason he pleaded not guilty by reason of insanity is that, knowing he had killed Mallason and supposing therefore that his only hope was to negate the element of intent that makes killing murder, he figured that a plea of not guilty by reason of insanity was the appropriate plea to put the issue of intent before the jury; a simple plea of not guilty, he thought, would be tantamount to a denial that he had killed Mallason, an untenable position. The state's answer, which the district court found convincing, is that the trial judge explained to Morgan that by pleading not guilty by reason of insanity he was giving up his right to insist that the state prove all of the elements of first-degree murder, one of which is homicidal intent, beyond a reasonable doubt. Morgan replies that he thought the defense of insanity subsumed all aspects of criminal intent, and did not know that by pleading not guilty he could have forced the state to bear the burden of proving his criminal intent beyond a reasonable doubt, rather than having himself to shoulder the burden of proving that even though he had the required criminal intent he should be acquitted because insane.

If Morgan was confused, it would be entirely understandable. The proposition that you can be insane yet be able to form the intent required for an utterly deliberate criminal act such as first-degree murder smacks of paradox. We can resolve the paradox, however, by attending carefully to the difference between knowing what one is doing, on the one hand, and, on the other, knowing that what one is doing is wrongful and having the capacity to resist doing it. The first mental state is the one required to form the criminal intent for a specific-intent offense such as first-degree murder; the second is the mental state of being sane (in the legal sense of the word). Negating the first mental state usually leads to conviction of some lesser included offense, such as manslaughter, that does not require proof of specific intent (in first-degree murder, the intent, without lawful justification, to kill a human being, see Wis.Stat. Sec. 940.01). Negating the second leads to a complete acquittal. Concerning these distinctions see Morris, Madness and the Criminal Law 54-76 (1982); United States v. Brawner, 471 F.2d 969, 998-1002 (D.C.Cir.1972) (en banc); Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum.L.Rev. 827, 831-36 (1977); Morris, Psychiatry and the Dangerous Criminal, 41 So.Cal.L.Rev. 514, 520-21 (1968); American Bar Association, Criminal Justice Mental Health Standards: First Tentative Draft pp. 7-274 to 7-276 (1983); Comment, The Relevance of Innocence: Proposition 8 and the Diminished Capacity Defense, 71 Calif.L.Rev. 1197, 1198-99 (1983).

Suppose that Morgan had been so deranged at the time of the killing that he thought Mallason not a human being but a toad, or that he thought Mallason a convicted murderer and himself the public executioner, appointed to execute Mallason on the spot. In neither case would Morgan have harbored the intent required to convict one of first-degree murder, so the trier of fact would have had to acquit him of that charge without reaching the issue of insanity, defined for these purposes as either inability to tell right from wrong or inability to resist the impulse to commit the crime. Under Wisconsin law that issue comes into play only after the defendant has been found guilty without consideration of his sanity--has, in other words, been found to have the...

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7 cases
  • State v. Morgan, 93-2611-CR
    • United States
    • Wisconsin Court of Appeals
    • 20 Junio 1995
    ...murder, so the trier of fact would have had to acquit him of that charge without reaching the issue of insanity. Morgan v. Israel, 735 F.2d 1033, 1035 (1984) (but noting that the defendant would likely be found guilty of a lesser-included offense in such situations), cert. denied, 469 U.S. ......
  • Milner v. Apfel, 97-3156
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 30 Junio 1998
    ...liable. See 720 ILCS 5/6-2(e); Jones v. United States, 463 U.S. 354, 363, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983); Morgan v. Israel, 735 F.2d 1033, 1034 (7th Cir.1984). The disability benefits of the guilty but insane having been suspended, it was illogical to allow the acquitted but insane, ......
  • Morgan v. Krenke
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 9 Noviembre 1999
    ...borrowed a line of reasoning from Chief Judge Posner that was offered as dicta in a Seventh Circuit decision. See Morgan v. Israel, 735 F.2d 1033, 1035-36 (7th Cir.1984). Judge Posner distinguished between two types of mental states that would impact differently on a defendant's capacity to......
  • Grosvenor v. State
    • United States
    • Florida Supreme Court
    • 25 Marzo 2004
    ...of an acquittal to enable us to infer that [she] would not have changed [her] plea to not guilty." Id. at 375 (quoting Morgan v. Israel, 735 F.2d 1033, 1036 (7th Cir.1984)).5 I therefore concur with the majority's analysis of Hill v. Lockhart, but I dissent from the decision to remand the c......
  • Request a trial to view additional results

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