United States v. Kowal

• Decision Date: 26 October 1984
• Docket Number: Crim. No. H-84-1 (PCD).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Douglas G. KOWAL.

596 F. Supp. 375

UNITED STATES of America v. Douglas G. KOWAL.

Crim. No. H-84-1 (PCD).

United States District Court, D. Connecticut.

October 26, 1984.

Peter D. Clark, Thomas F. McCarthy, Crim. Div., Fraud Section, Washington, D.C., for plaintiff.

Maxwell Heiman, Furey, Donovan & Heiman, Bristol, Conn., for defendant.

RULING ON GOVERNMENT'S MOTION TO REQUIRE DEFENDANT'S COMPLIANCE WITH THE INSANITY DEFENSE REFORM ACT OF 1984

DORSEY, District Judge.

The government has moved that the court require that defendant's duly-noticed insanity defense comport with the requirements of the Insanity Defense Reform Act of 1984 (Act) signed into law by the President on October 12, 1984. While the Act is in effect, its revised and curtailed grounds of insanity and reallocation of the burden of proof to the defendant may not be applied to defendant's trial. As the offenses charged were allegedly committed by defendant before the effective date of the legislation, application of the Act in these respects is prohibited by the ex post facto clause of the Constitution.

Facts

Defendant is charged with two counts of traveling in interstate commerce with intent to further an unlawful activity, in violation of 18 U.S.C. § 1952. The indictment, returned on January 12, 1984, charges that on or about December 6, 1982, and again on or about June 16, 1983, with intent to further an attempted extortion and an extortion of money from his former employer and principal, in violation of the law of the State of New York, the defendant traveled in interstate commerce and thereafter performed and attempted to perform the unlawful activity of extortion.

Originally scheduled to commence on May 22, 1984, trial was aborted by reason of defendant's then incompetence, since alleviated, and then continued for psychiatric testing and evaluation. On July 31, 1984, defendant filed notice of his reliance on the defense of insanity. Fed.R.Crim.P. 12.2(a). Trial is presently scheduled for October 29, 1984.

On October 12, 1984, the President signed the Comprehensive Crime Control Act of 1984, of which Sections 401 through 406 constitute a sweeping overhaul of the nature and presentation of the insanity defense in the federal courts.

Aimed at redressing "a glaring deficiency in our federal criminal justice system — the abuse of the insanity defense," 130 Cong.Rec. 13, H 381 (daily ed. 2/8/83) (Statement of Rep. Gekas), the Act is a multi-pronged attack on "a long-developing problem that we have permitted to confuse and misguide that sic fact finding process of criminal trials." Id. The Act substantially changes: the definition of insanity; the allocation of the burden of proof; the limits of expert testimony; the forms of verdict; and procedures for disposition of the mentally ill offender. The present motion provides a sufficiently clear record to consider the applicability of two principal provisions of the Act, the revised definition of insanity and the allocation of the burden of proving insanity.

Section 402 of the Act provides as follows:

(a) AFFIRMATIVE DEFENSE. — It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of 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.

(b) BURDEN OF PROOF. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Absent another provision, the Act is effective as of the signature of the President to the Law. 2 Sutherland's Statutory Construction § 33.06 (3d ed. Sands Rev.1973), citing Gardner v. Collector, 6 Wall 499, 18 L.Ed. 890 (1867).

Discussion

A.

Article I, § 9, clause 3 and Article I, § 10, clause 1 of the Constitution prohibit the enactment by Congress of ex post facto legislation. In Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1976), after observing that the Supreme Court's "cases have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law," the Court summarized the characteristics of an ex post facto law as set forth in Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925):

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Among the purposes of the prohibition are to "give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed" and to restrain "arbitrary and potentially vindictive legislation." Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1980) (citations omitted).

In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.

* * * * * *

We have also held that no ex post facto violation occurs if the change effected is merely procedural, and does "not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Hopt v. Utah, 110 U.S. 574, 590 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). See Dobbert v. Florida, 432 U.S. 282, 293 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form. Thompson v. Utah, 170 U.S. 343, 354-355 18 S.Ct. 620, 624, 42 L.Ed. 1061 (1898); Kring v. Missouri, supra 17 Otto 221 at 232 2 S.Ct. 443 at 452, 27 L.Ed. 506.

Weaver, 450 U.S. at 29 & n. 12, 101 S.Ct. at 964 n. 12 (citations omitted).

Perhaps due to difficulties inherent in applying the ex post facto prohibition to retroactive procedural changes lightening the prosecutorial burden, Supreme Court jurisprudence in this regard is not all of one piece. Compare, e.g., Kring v. Missouri, 17 Otto 221, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883) (invalidating retrospective abrogation of state rule treating conviction for lesser included offense as acquittal of greater offense) and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898) (invalidating retrospective application of state law requiring only eight jurors rather than twelve) with, e.g., Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (validating retrospective enlargement of class of competent witnesses); Duncan v. Missouri, 152 U.S. 377, 14 S.Ct. 570, 38 L.Ed. 485 (1894) (validating retrospective reduction in number of judges hearing appeals); Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896) (validating retrospective change in mode of grand jury selection); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898) (validating retrospective broadening of mode of authenticating and introducing handwriting samples): Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901) (validating retrospective granting of right of appeal by the state): Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (validating retrospective limitation on right of jointly-indicted defendants to receive separate trials). See also Murphy v. Kentucky, ___ U.S. ___, 104 S.Ct. 1427, 1428, 79 L.Ed.2d 751 (1984) (White, J. dissenting from denial of writ of certiorari where case provided opportunity to address "the evident confusion among lower courts concerning the application of the Ex Post Facto clause to changes in the rules of evidence and procedure").

While it has been suggested that the cases validating retroactive procedural changes "can hardly be distinguished in any functional way from those invalidated," L. Tribe, American Constitutional Law § 70-3 at 483-84 (1978), the Beazell Court suggests the cases trace an evolution toward the following distinction, concededly one of degree rather than kind:

Statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial way to his disadvantage are not prohibited ... whereas ... procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in ... a harsh and arbitrary manner ... fall within the constitutional prohibition.

269 U.S. at 170-71, 46 S.Ct. at 68-69 (citations omitted) (emphasis added).

B.

The standard for criminal responsibility first promulgated by the American Law Institute (ALI) and incorporated into the Model Penal Code has, during the last two decades, come to supplant the once dominant common law McNaughten test.

The ALI standard, approved...