U.S. v. Torniero

• Decision Date: 24 May 1984
• Docket Number: D,No. 1082,1082
• Citation: 735 F.2d 725
• Parties: 15 Fed. R. Evid. Serv. 1214 UNITED STATES of America, Appellee, v. John J. TORNIERO, Appellant. ocket 83-1459.
• Court: U.S. Court of Appeals — Second Circuit

Page 725

735 F.2d 725

15 Fed. R. Evid. Serv. 1214

UNITED STATES of America, Appellee, v. John J. TORNIERO, Appellant.

No. 1082, Docket 83-1459.

United States Court of Appeals, Second Circuit.

Argued April 23, 1984.

Decided May 24, 1984.

Michael Hartmere, Asst. U.S. Atty., D. Conn., New Haven, Conn. (Alan H. Nevas, U.S. Atty., District of Connecticut, New Haven, Conn., of counsel), for appellee.

John J. Keefe, Jr., Lynch, Traub, Keefe & Snow, New Haven, Conn. (Hugh F. Keefe, Charles E. Tiernan III, New Haven, Conn., of counsel), for appellant.

Before KAUFMAN, MESKILL and NEWMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Once again we are called upon to consider an issue related to the insanity defense presenting a basic question fundamental to the very notion of criminal justice. See United States v. Freeman, 357 F.2d 606, 607 (2d Cir.1966). We decide today whether a trial judge can exclude an insanity defense based on compulsive gambling. Any issue involving insanity evokes extraordinary interest and, indeed, passion. Although the insanity defense is infrequently raised and rarely successful, ¹ it remains of profound symbolic and philosophical importance as a reflection of society's conception of the nature of criminal responsibility and our understanding, however, imperfect, of the mysteries of the human mind.

Impetus for a variegated movement to change the law of insanity came from the controversial 1982 jury verdict acquitting, on insanity grounds, John W. Hinckley, the man accused of attempting to assassinate President Reagan. In the wake of the Hinckley decision, Congress has proposed legislative changes in the largely judge-made law of insanity in the federal courts; ² state legislatures have revised or even eliminated the affirmative defense of insanity; ³ and professional groups, both medical and legal, have called for a new approach to the insanity defense. ⁴ For purposes of this appeal, we note that the definition of insanity we adopted in Freeman, see Part II infra, remains the law of this circuit and furnishes the basis of our conclusion that the trial court was not required to permit a defense such as the one proposed here. Before proceeding with our legal analysis, we briefly recapitulate the relevant facts.

I.

In September 1982, John J. Torniero, a jewelry store manager, was indicted for interstate transportation of jewelry allegedly stolen from his employer. When Torniero's disclosure of psychological reports pursuant to Fed.R.Crim.P. 16(b)(1)(B) indicated he would attempt to argue that a compulsion to gamble rendered him legally insane, the Government, admittedly motivated by the adverse reaction to the recently-conducted Hinckley trial, sought an unprecedented judicial ruling. The United States asked the district judge to reverse centuries of legal tradition and institute change so radical that only two states have so far adopted it: abolition of the insanity defense. In the alternative, the prosecution sought more limited relief, seeking a ruling excluding any evidence related to compulsive gambling.

At a pretrial hearing, the court heard five days of testimony from psychiatrists and psychologists who took opposing views of the efficacy of any insanity defense. ⁵ Testimony was also adduced on the specific question of the propriety of a compulsive gambling basis for insanity. ⁶ In an opinion reported at 570 F.Supp. 721 (1983), Judge Cabranes rejected the Government's suggestion that the insanity defense be abolished, but he did grant the prosecution's request to exclude a compulsive gambling defense. The trial judge noted that admitting the gambling defense would expose the jury to extensive, technical, and contradictory expert evidence. Id. at 723; we discuss this rationale in Part III D infra. Judge Cabranes also ruled that the relationship between a putative compulsion to gamble and an urge to steal was simply "too tenuous to warrant the introduction of expert witnesses," 570 F.Supp. at 733, and he concluded that the proffered evidence was irrelevant to the issue of insanity. Id. at 734.

A four-day trial on the interstate transportation charges was conducted in November, 1983. The Government's evidence of the jewel thefts included inculpatory statements and confessions Torniero made to private investigators and the FBI. According to the trial testimony, jewelry valued at approximately $750,000 was purloined by Torniero and transported from New Haven to the Diamond District in Manhattan, where the defendant sold the loot for cash. In his defense, Torniero presented two psychiatrists who testified that the defendant suffered from paranoia, depression, and a narcissistic personality, rendering him insane under the prevailing test established in Freeman. See Part II infra. Other witnesses testified to Torniero's good character. A psychiatrist took the stand for the Government in rebuttal, contradicting Torniero's experts and stating the defendant was sane at the time the crimes were committed.

The jury deliberated for less than an hour before convicting Torniero on eight counts of interstate transportation of stolen goods, 18 U.S.C. Sec. 2314. Torniero is now serving a three-year prison term, to be followed by five years' probation and an ongoing duty to pay restitution to his victim. The trial judge also recommended that Torniero undergo treatment for his compulsive gambling affliction.

The Government does not attempt to cross-appeal Judge Cabranes's refusal to "abolish" the insanity defense. The sole issue raised on appeal, therefore, is Torniero's contention that the trial judge erred by refusing to permit the compulsive gambling defense to be presented to the jury.

II

Because our affirmance of the district court's decision to exclude the compulsive gambling defense is based on application of the prevailing definition of insanity in this Circuit, we believe it necessary to review the process by which the standard evolved. Even at a time when the existence of witches and demons was received truth, our system of justice recognized that no purpose is served by criminally punishing certain offenders who cannot be considered responsible for their actions; the first recorded insanity acquittal occurred in 1505. Robitscher and Haynes, In Defense of the Insanity Defense, 31 Emory L.J. 9, 11 (1982). The current reappraisal of the law of insanity began with the Hinckley verdict. The modern law of insanity has its genesis in an equally celebrated attempted assasination and acquittal of the perpetrator.

In 1843, Daniel M'Naghten killed British Prime Minister Robert Peel's secretary while attempting to shoot Peel. At a lengthy trial, M'Naghten presented evidence that he suffered from what today would be diagnosed as insane delusions of persecution, and the jury acquitted him on the basis of insanity. Reaction in British society was fierce and immediate, with Queen Victoria bringing the prestige of the monarchy to bear on an attempt to rectify the perceived injustice of the verdict. The judges of the common law courts were summoned into extraordinary session, where they formulated the familiar M'Naghten Rule defining the criminally insane individual as one who "was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." 8 Eng.Rep. 718, 722, 10 Clark & Fin. 200, 210 (1843). See generally Platt & Diamond, The Origins of the "Right and Wrong" Test of Criminal Responsibility and its Subsequent Development in the United States: An Historical Survey, 54 Cal.L.Rev. 1227 (1966). The M'Naghten, or "right-wrong" test, was the prevailing rule for more than a century after its formation, and remains the sole test for insanity in a minority of the states.

The M'Naghten Rule was supplemented in several jurisdictions by a test permitting acquittal when the defendant was driven by an irresistible impulse to commit the offense. See LaFave & Scott, Criminal Law Sec. 37 (1972). Another attempt to modernize the M'Naghten rules was the Durham standard, which states that a defendant is not criminally responsible if his unlawful act was the product of a mental disease or defect. Durham v. United States, 214 F.2d 862, 874 (D.C.Cir.1954). Although Durham swept away the intellectual debris of a century, United States v. Freeman, supra, 357 F.2d at 621, it was never widely adopted and application of its test proved troublesome. See, e.g., Blocker v. United States, 288 F.2d 853, 860 (D.C.Cir.1961) (Burger, J., concurring). From a legal standpoint, the suggestion that insanity could be the product of sociopathic behavior or a personality disorder, see, e.g., McDonald v. United States, 312 F.2d 847, 851 (D.C.Cir.1962), raised the possibility that virtually any anti-social conduct, including substance abuse, recidivism, or so-called impulse disorders such as kleptomania, would be a basis for an insanity defense to an offense unrelated to the specific compulsion. A Durham -type test carried to its logical conclusion could therefore lead to the exculpation of a wide range of criminal behavior.

The American Law Institute test we adopted in Freeman states that a "person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Model Penal Code Sec. 4.01(1) (proposed Official Draft 1962). The "wrongfulness of his conduct" test is often referred to as the "cognitive" prong of the standard; the "conform his conduct" alternative test is known as the "volitional" prong. The cognitive prong is a modern refinement of the M'Naghten right-wrong test, while the volitional prong has as its antecedents the irresistible impulse and Durham standards.

The ALI test conclusively...