US v. Meader, Criminal No. 95-25-B-H.

• Decision Date: 12 February 1996
• Docket Number: Criminal No. 95-25-B-H.
• Parties: UNITED STATES of America, v. Kenneth MEADER, Defendant.
• Court: U.S. District Court — District of Maine

914 F. Supp. 656

UNITED STATES of America, v. Kenneth MEADER, Defendant.

Criminal No. 95-25-B-H.

United States District Court, D. Maine.

February 12, 1996.

Gail Fiske Malone, Assistant United States Attorney, Bangor, ME, for Government.

David M. Sanders, Livermore Falls, ME, for Defendant.

ORDER

HORNBY, District Judge.

The Government has moved in limine to exclude the defendant's insanity defense and other evidence of his mental condition. On February 1, 1996, I conducted a hearing with the defendant Kenneth Meader present. At the hearing, the defendant proffered the testimony of psychologist Dr. Brian Rines who has interviewed, examined and tested Meader and examined discovery materials concerning the incidents that led to the various federal and state charges against Meader.

The Government attacked Dr. Rines's testimonial conclusions on several grounds, among them the limitations on his examination and testing of Meader; the fact that he did not interview or evaluate Meader till long after the incidents; his acceptance of various statements Meader made; the more limited statements Dr. Rines made in his earlier letter to Meader's lawyer (the Government considers it a report, but Dr. Rines disagrees); and his apparent discounting of certain other evidence.

All of these, I conclude, go to the weight of Dr. Rines's testimony and are matters for the jury, assuming that Dr. Rines's proposed testimony is otherwise admissible and, together with other evidence, raises a legitimate issue for the jury. I examine, therefore, whether Dr. Rines's testimony is inadmissible on other grounds.

INSANITY DEFENSE

Meader has given notice, see Fed. R.Crim.P. 12.2, that he relies upon the defense of insanity. Federal law is clear that a defendant must prove his insanity defense by "clear and convincing evidence." 18 U.S.C. § 17(b). The elements of the defense are

that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

18 U.S.C. § 17(a). Although Dr. Rines arguably has expressed various positions in his letter and his testimonial proffer and may accordingly be open to effective cross-examination, I am satisfied that he is prepared to testify that at the time of the offenses in question,¹ Meader suffered from one (and only one) mental disease or defect that was severe, specifically what Dr. Rines calls a transient psychosis, brief psychotic episode or brief reactive psychosis. Dr. Rines bases his conclusion on acceptable professional techniques, evaluations and measuring devices. Dr. Rines characterizes the strength of this conclusion as a "very high probability" — which, I am satisfied, is sufficient to get to the jury on the clear and convincing evidence standard. See, e.g., United States v. Owens, 854 F.2d 432, 435-36 & n. 8 (11th Cir.1988) (clear and convincing evidence means "convincing clarity," an "intermediate" standard satisfied by a "high probability"); United States v. Barton, 992 F.2d 66, 69 n. 6 (5th Cir.1993) ("clear conviction").

It is also Dr. Rines's professional opinion, however, that this brief psychotic episode did not prevent Meader from understanding the nature and quality of his acts. The psychologist's opinion about Meader's ability to appreciate the wrongfulness of his acts is more difficult to characterize within the statutory framework. Specifically, Dr. Rines testified that if someone had asked Meader during the events whether what he was doing was wrong, Meader would have replied yes; but that Meader's needs at the time were such that he could not stop to consider this issue and that he could not therefore "appreciate" the wrongfulness of his acts.²

In this context, I consider the impact of Fed.R.Evid. 704(b), which provides:

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

In other words, by rule of evidence (actually enacted by Congress) Dr. Rines is not permitted to give the jury his opinion on Meader's ability to appreciate the nature and quality or wrongfulness of his acts. United States v. Hiebert, 30 F.3d 1005, 1008 n. 2 (8th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 606, 130 L.Ed.2d 516 (1994) (bench trial); United States v. Dubray, 854 F.2d 1099 (8th Cir.1988). Thus, the question before me is whether to permit Dr. Rines to testify that Meader had a severe mental disease or defect, thereby perhaps allowing the jury to conclude that as a result Meader could not appreciate the nature and quality or the wrongfulness of his acts when, in fact, Dr. Rines's professional opinion is that the psychosis did not affect Meader's appreciation of the nature and quality of his acts and is at least ambiguous on the wrongfulness issue.

The Seventh Circuit has ruled that that is exactly what a trial judge must do. United States v. West, 962 F.2d 1243 (7th Cir.1992); United States v. Salava, 978 F.2d 320, 322-23 (7th Cir.1992). The three judges in West expressed many misgivings, and two of them suggested ways to circumvent what seemed to them an unsatisfactory conclusion. The First Circuit has never directly ruled on the issue; two recent decisions suggest very divergent views. Compare United States v. Valle, 72 F.3d 210, 215 (1st Cir.1995) (expert may not testify on the ultimate issue of state of mind), with United States v. Cartagena-Carrasquillo, 70 F.3d 706, 712 (1st Cir.1995) (faulting the psychiatrist's report because there was nothing in it "which suggests that the defendant did not know or could not appreciate that selling cocaine was wrong").

I conclude, however, that the dilemma is not as severe as the Seventh Circuit makes out. The "pernicious" result that the court feared in West occurs from focussing solely on the expert psychiatrist's or psychologist's testimony. To be sure, Dr. Rines may not testify on whether Meader could appreciate the nature and quality or wrongfulness of his acts, but that does not prevent Meader from testifying. Meader may take the stand and testify that at the time he did not in fact understand the nature and quality or wrongfulness of what he was doing. The jury may disbelieve or believe that testimony. Dr. Rines could also be asked, after hearing Meader's testimony, whether what Meader described could, if believed, be explainable by the psychosis. If Dr. Rines then testified that it could not be caused by the psychosis (and no other doctor testified to the contrary) I would exclude the insanity defense because it was not medically supportable. Dr. Rines would still not have testified as to whether Meader at the time did or did not appreciate the nature and quality or wrongfulness of his acts. If, on the other hand, Dr. Rines testified that it could be caused by the psychosis, the insanity defense would go to the jury.

This outcome seems consistent with Congress's goal in preventing expert testimony on the ultimate issue — i.e., to preserve the jury's common sense role. This procedure lets the experts testify about what is a mental disease or defect and what is severe, matters not within the experience of ordinary jurors and thus deserving expert opinion. It prevents the experts from testifying about the ultimate issue the jury must decide — did this defendant in fact appreciate the nature and quality or wrongfulness of his acts at the time in question? — and lets the jury use its collective common sense and wisdom on this issue. Finally it allows expert testimony on the "causation" factor, i.e....