Buzynski v. Oliver

• Citation: 538 F.2d 6
• Decision Date: 14 July 1976
• Docket Number: No. 76-1091,76-1091
• Parties: Peter J. BUZYNSKI, Petitioner, v. Richard M. OLIVER, Warden, Maine State Prison, et al., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 6

538 F.2d 6

Peter J. BUZYNSKI, Petitioner, v. Richard M. OLIVER, Warden, Maine State Prison, et al., Respondents.

No. 76-1091.

United States Court of Appeals, First Circuit.

Argued May 4, 1976.

Decided July 14, 1976.

David C. Pomeroy, Portland, Maine, by appointment of the Court, for petitioner.

William J. Kelleher, Asst. Atty. Gen., Augusta, Maine, for respondent.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

This appeal presents the question whether the due process clause of the Fourteenth Amendment prohibits a state from requiring a criminal defendant, who pleads legal insanity, to carry the burden of persuasion on that issue. Maine is one of a substantial number of states which require a criminal defendant who raises the defense of legal insanity not only to produce evidence on that issue ¹ but also to persuade the jury of his insanity by a preponderance of the evidence. In the instant case, defendant failed to satisfy this burden. In the first stage of his bifurcated trial, the jury found, beyond a reasonable doubt, that each of the essential elements of the crimes with which he was charged robbery and arson were present. At the second stage, the parties presented evidence on the issue of defendant's legal sanity, but the jury concluded that he had not established his insanity by a preponderance of the evidence. ² The Maine Supreme Judicial Court affirmed this conviction. State v. Buzynski, 330 A.2d 422 (1974). On habeas corpus, the federal district court agreed. We granted a certificate of probable cause.

Our task is Janus-like, compelling us to look backward and forward, to be both analytical and predictive in an area of law which has seen recent significant movement by the Supreme Court. Two older cases, Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), deal with the insanity defense, in different contexts and with opposite results. In Davis the Court held that in federal courts the prosecution must prove sanity beyond a reasonable doubt. In Leland the Court held that a state could, consistent with due process, require a defendant to prove his insanity not merely by a preponderance of the evidence but beyond a reasonable doubt. ³ Two recent cases, although not dealing specifically with the insanity defense, have nevertheless developed an analytical approach which throws doubt on the continued viability of Leland. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which relied on Davis, held that, because of the criminal defendant's interest in his liberty and reputation and the societal interest in the reliability of jury verdicts in criminal cases, due process requires that a state establish every element of a crime beyond a reasonable doubt. Wilbur v. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), extended the Winship rule to place on the prosecution the burden of overcoming the mitigating defense of heat of passion on sudden provocation beyond a reasonable doubt. Like sanity under Maine law, the absence of suddenly provoked passion is not defined as an element of the crime but is labelled an affirmative defense. We must therefore attempt to determine whether these more recent decisions foreclose any continued reliance on Leland.

In arguing that Leland has been overruled, appellant bears a heavy burden. Although there are circumstances in which it is appropriate for a court of appeals to disregard the teachings of earlier Supreme Court decisions, cf. Women's Liberation Union v. Israel, 512 F.2d 106, 109 (1st Cir. 1975), generally the Supreme Court has the exclusive authority to overrule its own decisions. We believe that we are obliged to follow Leland unless Winship and Wilbur have created "a near certainty that only the occasion is needed for (Supreme Court's) pronouncement of (Leland's ) doom", Salerno v. American League of Prof. Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970) (Friendly, J.). See also In re Korman, 449 F.2d 32, 39 (7th Cir. 1971); United States v. Girouard, 149 F.2d 760, 764-67 (1st Cir. 1945) (Woodbury, J., dissenting), rev'd, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). It is in the light of this narrow scope of predictive analysis afforded the lower courts that we approach our task.

We therefore undertake a clinical scrutiny of Wilbur to determine its implications for the question before us. ⁴ In Wilbur, the issue was whether Maine could require a criminal defendant accused of felonious homicide to prove, by a preponderance of the evidence, that he acted in the heat of provoked passion and thereby qualified for the lesser punishment of manslaughter.

The court first looked to history and found that "the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact." 421 U.S. at 696, 95 S.Ct. at 1888. Here, while there is no such clear trend on the part of the states as that concerning the burden of proof in crimes committed in the passion of sudden provocation, the federal courts and about half the states today require the prosecution to prove mental responsibility beyond a reasonable doubt. See W. LaFave & A. Scott, Criminal Law, 313 (1972). The Court in Wilbur indicated no specific casual connection between its historical review and its analysis on the merits. But to the extent that contemporary consensus is relevant, there seems to be a more balanced diversity of approach to the insanity issue among the states than was present on the issue in Wilbur.

Addressing the merits, the Court in Wilbur rejected the argument that Winship applied only to facts which, if not proven, would wholly exonerate the defendant. It observed that the defendant's liberty and reputation interests are equally implicated by findings determining the degree of criminal liability, and concluded that Winship applies to facts which are determinative of the extent of criminal culpability. 421 U.S. at 696-99, 95 S.Ct. 1881.

This analysis obviously applies when the fact in issue is legal sanity rather than the existence of provocation. The fact of "legal sanity" is determinative not simply of the degree of criminal liability but of criminal culpability vel non. A criminal defendant who is found not guilty by reason of insanity is not criminally responsible. He is free of the stigma of being a criminal and will not be criminally confined. Although civil commitment is a substantial certainty, it is for the purpose of treatment and generally entails a far lesser or qualitatively different interference with the defendant's liberty. And the societal interest, here as in Wilbur, is in the reliability of jury verdicts, it being "critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." 421 U.S. at 700, 95 S.Ct. at 1890, quoting Winship, 397 U.S. at 364, 90 S.Ct. 1068.

Appellant, therefore, has made a preliminary showing that the fact of sanity like the absence of provocation should be proved beyond a reasonable doubt. Therefore, we must proceed, as did the Court in Wilbur, to consider the operation and effect of the Maine burden of persuasion rule and the proper interests of the state and the defendant as they are affected by the allocation of the burden of proof. See 421 U.S. at 699, 95 S.Ct. 1881. The foregoing discussion indicates that the private and public interests favoring the requirement of proof of sanity beyond a reasonable doubt are as strong as, if not stronger than, those in either Wilbur or Winship. Defendant's interest in his liberty and his reputation are, at least, comparable, and the societal interest in the reliability of jury verdicts is identical. The difficult question is whether there might be a state interest sufficient to justify shifting the burden of persuasion to the criminal defendant. ⁵ See 421 U.S. at 701-02 & n. 31, 95 S.Ct. 1881.

In Wilbur, the Court felt obligated to consider the difficulties a state would face in proving an absence of provocation and whether they were sufficient to require giving serious consideration to excusing the prosecution from having to bear the "traditional burden" of proof beyond a reasonable doubt. The court noted that the overwhelming majority of states accepted that burden on the factual issue of provocation, see id. at 696 & 701, 95 S.Ct. 1881, that the fact in issue there "is largely an 'objective, rather than a subjective, behavioral criterion'. . . .", id. at 702, 95 S.Ct. at 1891, that Maine required the state to prove similar facts e. g., intent and the absence of self defense id., and concluded that it "discern(ed) no unique hardship on the prosecution that would justify requiring the defendant (to prove) a fact so critical to criminal culpability." Id.

To the extent that this discussion in Wilbur suggests that whether the prosecution is under a "unique hardship" is critical and, at the same time, sets forth the criteria a court should apply in making such a determination, it possibly provides a basis for concluding that Maine's rule is valid. Since roughly half the states require the defendant to prove his insanity, see W. LaFave & A. Scott, supra at 313, the general practice in the country is far from conclusive on the extent of the prosecution's difficulty. And although it is difficult to conceive of the issue of...