METRISH v. LANCASTER
On April 23, 1993, Burt Lancaster, a former Detroit police officer with a history of mental health problems, shot and killed his girlfriend. He was charged with first-degree murder and possession of a firearm in the commission of a felony. At his trial in state court, Lancaster admitted to the killing but argued he was not guilty by reason of insanity and diminished capacity. The jury convicted Lancaster on both counts.
After exhausting his appeals in state courts, Lancaster filed a petition for a writ of habeas corpus in federal district court and argued that the state had improperly excluded a black juror based on his race. The district court granted the writ of habeas corpus, and Lancaster received a new trial in 2005. At the new trial, Lancaster waived his right to a jury and limited his defense to diminished capacity. Since Lancaster’s first trial, the Michigan Supreme Court had held that diminished capacity defense was no longer valid. The trial court held that the Michigan Supreme Court ruling applied retroactively and that Lancaster could not use the diminished capacity defense. The Michigan Court of Appeals and the Michigan Supreme Court declined to hear the case, and Lancaster was again convicted on both counts.
Lancaster filed a petition for a writ of habeas corpus. He argued that the abolition of the diminished capacity defense was a substantive change in the law and that the trial court violated his Fifth and Fourteenth Amendment rights by retroactively applying the change to his case. The district court denied his petition and held that the abolition of the diminished capacity defense was a reasonable change because the defense was not well established under Michigan law. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the retroactive application of the new ruling denied Lancaster his right to due process.
Was the Michigan Supreme Court’s abolition of the diminished capacity defense an “unexpected and indefensible” change?
Did the Michigan Court of Appeals err in retroactively applying the change to Lancaster’s case?
Legal provision: Antiterrorism and Effective Death Penalty Act of 1996
No, no. Justice Ruth Bader Ginsburg delivered the opinion for the unanimous Court. The Supreme Court held that the Michigan Supreme Court ruling eliminating the diminished capacity defense was reasonable as the defense had limited standing in Michigan’s jurisprudence and was not encompassed in the legislature’s statutory scheme. The Court also held that the retroactive application of the ruling to this case did not violate due process because it represented a foreseeable interpretation of statutory language by the Michigan Supreme Court.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
LINDA METRISH, WARDEN, PETITIONER v. BURT LANCASTER
on writ of certiorari to the united states court of appeals for the sixth circuit
[May 20, 2013]
Justice Ginsburg delivered the opinion of the Court.
Burt Lancaster was convicted in Michigan state court of first-degree murder and a related firearm offense. At the time the crime was committed, Michigan’s intermediate appellate court had repeatedly recognized “diminished capacity” as a defense negating the mens rea element of first-degree murder. By the time of Lancaster’s trial and conviction, however, the Michigan Supreme Court in People v. Carpenter, 464 Mich. 223, 627 N. W. 2d 276 (2001), had rejected the defense. Lancaster asserts that retroactive application of the Michigan Supreme Court’s decision in Carpenter denied him due process of law. On habeas review, a federal court must assess a claim for relief under the demanding standard set by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under that standard, Lancaster may gain relief only if the state-court decision he assails “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court.” 28 U. S. C. §2254(d)(1). We hold that Lancaster’s petition does not meet AEDPA’s requirement and that the United States Court of Appeals for the Sixth Circuit erred in granting him federal habeas relief.I
On April 23, 1993, Lancaster, a former police officer with a long history of severe mental-health problems, shot and killed his girlfriend in a shopping-plaza parking lot. At his 1994 jury trial in Michigan state court, Lancaster admitted that he had killed his girlfriend but asserted insanity and diminished-capacity defenses. Under then-prevailing Michigan Court of Appeals precedent, a defendant who pleaded diminished capacity, although he was legally sane, could “offer evidence of some mental abnormality to negate the specific intent required to commit a particular crime.” Carpenter, 464 Mich., at 232, 627 N. W. 2d, at 280. If a defendant succeeded in showing that mental illness prevented him from “form[ing] the specific state of mind required as an essential element of a crime,” he could “be convicted only of a lower grade of the offense not requiring that particular mental element.” Ibid. (internal quotation marks omitted).
Apparently unpersuaded by Lancaster’s defenses, the jury convicted him of first-degree murder, in violation of Mich. Comp. Laws Ann. §750.316 (West 1991), 1 and possessing a firearm in the commission of a felony, in violation of §750.227b (West Cum. Supp. 2004). Lancaster later obtained federal habeas relief from these convictions, however, because, in conflict with Batson v. Kentucky, 476 U. S. 79 (1986) , the prosecutor had exercised a race-based peremptory challenge to remove a potential juror. See Lancaster v. Adams, 324 F. 3d 423 (CA6 2003).
Lancaster was retried in 2005. By that time, the Michigan Supreme Court had disapproved the “series of [Michigan Court of Appeals] decisions” recognizing the diminished-capacity defense. Carpenter, 464 Mich., at 235, 627 N. W. 2d, at 282. In rejecting the defense, Michigan’s high court observed that, in 1975, the Michigan Legislature had enacted “a comprehensive statutory scheme concerning defenses based on either mental illness or mental retardation.” Id., at 236, 627 N. W. 2d, at 282. That scheme, the Michigan Supreme Court concluded, “demonstrate[d] the Legislature’s intent to preclude the use of any evidence of a defendant’s lack of mental capacity short of legal insanity to avoid or reduce criminal responsibility.” Ibid.
Although the murder with which Lancaster was charged occurred several years before the Michigan Supreme Court’s decision in Carpenter, the judge presiding at Lancaster’s second trial applied Carpenter’s holding and therefore disallowed renewal of Lancaster’s diminished-capacity defense. Following a bench trial, Lancaster was again convicted. The trial court imposed a sentence of life imprisonment for the first-degree murder conviction and a consecutive two-year sentence for the related firearm offense.
Lancaster appealed, unsuccessfully, to the Michigan Court of Appeals. See App. to Pet. for Cert. 76a–78a. The appeals court rejected Lancaster’s argument that retroactive application of Carpenter to his case violated his right to due process. “[D]ue process concerns prevent retroactive application [of judicial decisions] in some cases,” the court acknowledged, “especially . . . where the decision is unforeseeable and has the effect of changing existing law.” App. to Pet. for Cert. 77a. But Carpenter “did not involve a change in the law,” the Court of Appeals reasoned, “because it concerned an unambiguous statute that was interpreted by the [Michigan] Supreme Court for the first time.” App. to Pet. for Cert. 77a.
After the Michigan Supreme Court declined review, Lancaster reasserted his due process claim in a federal habeas petition filed under 28 U. S. C. §2254. The District Court denied the petition, 735 F. Supp. 2d 750 (ED Mich. 2010), but it granted a certificate of appealability, see 28 U. S. C. §2253(c).
A divided panel of the Sixth Circuit reversed. 683 F. 3d 740 (2012). The Michigan Supreme Court’s decision in Carpenter was unforeseeable, the Court of Appeals majority concluded, given (1) the Michigan Court of Appeals’ consistent recognition of the diminished-capacity defense; (2) the Michigan Supreme Court’s repeated references to the defense without casting a shadow of doubt on it; and (3) the inclusion of the diminished-capacity defense in the Michigan State Bar’s pattern jury instructions. 683 F. 3d, at 745–749. These considerations persuaded the Sixth Circuit majority that, in rejecting Lancaster’s due process claim, the Michigan Court of Appeals had unreasonably applied clearly established federal law. Id., at 752–753. Accordingly, the Sixth Circuit ruled that Lancaster was entitled to a new trial at which he could present his diminished-capacity defense. Id., at 754. Dissenting, Chief Judge Batchelder concluded that the “Michigan Court of Appeals[’] denial of Lancaster’s due process claim was reasonable . . . because the diminished-capacity defense was not well-established in Michigan and its elimination was, therefore, foreseeable.” Id., at 755.
This Court granted certiorari. 568 U. S. ___ (2013).II
To obtain federal habeas relief under AEDPA’s strictures, Lancaster must establish that, in rejecting his due process claim, the Michigan Court of Appeals unreasonably applied federal law clearly established in our decisions. See 28 U. S. C. §2254(d)(1). 2 This standard, we have explained, is “difficult to meet”: To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12–13). To determine whether Lancaster has satisfied that demanding standard, we consider first two of this Court’s key decisions: Bouie v. City of Columbia, 378 U. S. 347 (1964) , and Rogers v. Tennessee, 532 U. S. 451 (2001) . We then consider whether the Michigan Court of Appeals’ decision qualifies as an unreasonable application of those decisions to the particular circumstances of Lancaster’s case. 3A
In Bouie, the African-American petitioners were convicted of trespass under South Carolina law after they refused to comply with orders to leave a drug store’s restaurant department, a facility reserved for white customers. 378 U. S., at 348–349. This Court held that the convictions violated the due process requirement that “a criminal statute give fair warning of the conduct which it prohibits.” Id., at 350. The state statute under which the petitioners were convicted, the Court emphasized, prohibited “entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry.” Id., at 349–350 (emphasis added and internal quotation marks omitted). It was undisputed that the petitioners were invited to enter the store and had received no notice that they were barred from the restaurant area before they occupied booth seats. Id., at 350. Nevertheless, the South Carolina Supreme Court affirmed the petitioners’ convictions based on its prior decision in Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 512 (1961). Bouie, 378 U. S., at 350, n. 2. The Mitchell decision, which the South Carolina Supreme Court found dispositive, was rendered 21 months after the petitioners’ arrest. 378 U. S., at 348, 350, n. 2. Mitchell held that the trespass statute under which the petitioners were convicted reached not only unauthorized entries; it proscribed as well “the act of remaining on the premises of another after receiving notice to leave.” 378 U. S., at 350.
We held that the Due Process Clause prohibited Mitchell’s retroactive application to the Bouie petitioners. In so ruling, we stressed that Mitchell’s interpretation of the South Carolina trespass statute was “clearly at variance with the statutory language” and “ha[d] not the slightest support in prior South Carolina decisions.” 378 U. S., at 356. Due process, we said, does not countenance an “unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Id., at 352.
In Rogers, the petitioner contested the Tennessee Supreme Court’s retroactive abolition of the common-law “year and a day rule.” 532 U. S., at 453. That rule barred a murder conviction “unless [the] victim had died by the defendant’s act within a year and a day of the act.” Ibid. The victim in Rogers had died some 15 months after the petitioner stabbed him. Id., at 454. We held that the Tennessee Supreme Court’s refusal to adhere to the year and a day rule in the petitioner’s case did not violate due process. Id., at 466–467. The “due process limitations on the retroactive application of judicial decisions,” we explained, are not coextensive with the limitations placed on legislatures by the Constitution’s Ex Post Facto Clauses. Id., at 459. See also U. S. Const., Art. I, §9, cl. 3; id., §10, cl. 1; Calder v. Bull, 3 Dall. 386, 390 (1798) (seriatim opinion of Chase, J.) (describing four categories of laws prohibited by the Constitution’s Ex Post Facto Clauses). Strictly applying ex post facto principles to judicial decisionmaking, we recognized, “would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainty that marks any evolving legal system.” Rogers, 532 U. S., at 461. “[J]udicial alteration of a common law doctrine of criminal law,” we therefore held, “violates the principle of fair warning, and hence must not be given retroactive effect, only where [the alteration] is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Id., at 462 (quoting Bouie, 378 U. S., at 354).
Judged by this standard, we explained, the retroactive abolition of the year and a day rule encountered no constitutional impediment. First, the rule was “widely viewed as an outdated relic of the common law” and had been “legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue.” Rogers, 532 U. S., at 462–463. Second, the rule “had only the most tenuous foothold” in Tennessee, having been mentioned in reported Tennessee decisions “only three times, and each time in dicta.” Id., at 464. Abolishing the obsolete rule in Rogers’ case, we were satisfied, was not “the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect.” Id., at 466–467.B 1
Does the Michigan Court of Appeals’ rejection of Lancaster’s due process claim represent an unreasonable application of the law we declared in Bouie and Rogers? Addressing that question, we first summarize the history of the diminished-capacity defense in Michigan.
The Michigan Court of Appeals first recognized the defense in People v. Lynch, 47 Mich. App. 8, 208 N. W. 2d 656 (1973). See Carpenter, 464 Mich., at 233, 627 N. W. 2d, at 281. The defendant in Lynch was convicted of first-degree murder for starving her newborn daughter. 47 Mich. App., at 9, 208 N. W. 2d, at 656. On appeal, the defendant challenged the trial court’s exclusion of psychiatric testimony “bearing on [her] state of mind.” Id., at 14, 208 N. W. 2d, at 659. She sought to introduce this evidence not to show she was legally insane at the time of her child’s death. 4 Instead, her plea was that she lacked the mens rea necessary to commit first-degree murder. Ibid. Reversing the defendant’s conviction and remanding for a new trial, the Michigan Court of Appeals rejected the view “that mental capacity is an all or nothing matter and that only insanity . . . negates criminal intent.” Id., at 20, 208 N. W. 2d, at 662. Aligning itself with the “majority . . . view,” the court permitted defendants to present relevant psychiatric “testimony bearing on intent.” Id., at 20–21, 208 N. W. 2d, at 662–663. See also id., at 20, 208 N. W. 2d, at 662 (noting that “such medical proof” is “sometimes called proof of diminished or partial responsibility”).
In 1975, two years after the Michigan Court of Appeals’ decision in Lynch, the Michigan Legislature enacted “a comprehensive statutory scheme setting forth the requirements for and the effects of asserting a defense based on either mental illness or mental retardation.” Carpenter, 464 Mich., at 226, 627 N. W. 2d, at 277. See also 1975 Mich. Pub. Acts pp. 384–388. That legislation, which remained in effect at the time of the April 1993 shooting at issue here, provided that “[a] person is legally insane if, as a result of mental illness . . . or . . . mental retardation . . . that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Id., at 386 (codified as amended, Mich. Comp. Laws Ann. §768.21a(1) (West 2000)). The legislature required defendants in felony cases to notify the prosecution and the court at least 30 days before trial of their intent to assert an insanity defense. 1975 Mich. Pub. Acts p. 385 (codified as amended, §768.20a(1)). Defendants raising an insanity defense, the legislature further provided, must submit to a court-ordered psychiatric examination. Id., at 385 (codified as amended, §768.20a(2)).
The 1975 Act also introduced the verdict of “guilty but mentally ill” for defendants who suffer from mental illness but do not satisfy the legal definition of insanity. Id., at 387 (codified as amended, §768.36(1) (West Cum. Supp. 2013)). The legislature provided for the psychiatric evaluation and treatment of defendants found “guilty but mentally ill” but did not exempt them from the sentencing provisions applicable to defendants without mental illness. Id., at 387–388 (codified as amended, §§768.36(3)–(4)).
Although the 1975 Act did not specifically address the defense of diminished capacity, the Michigan Court of Appeals ruled in 1978 that the defense “comes within th[e] codified definition of legal insanity.” People v. Mangiapane, 85 Mich. App. 379, 395, 271 N. W. 2d 240, 249. Therefore, the court held, a defendant claiming that he lacked the “mental capacity to entertain the specific intent required as an element of the crime with which he [was] charged” had to comply with the statutory procedural requirements applicable to insanity defenses, including the requirements of pretrial notice and submission to court-ordered examination. Ibid.
Because the 1975 Act did not indicate which party bears the burden of proof on the issue of insanity, Michigan courts continued to apply the common-law burden-shifting framework in effect at the time of the insanity defense’s codification. See People v. McRunels, 237 Mich. App. 168, 172, 603 N. W. 2d 95, 98 (1999). Under that framework, a criminal defendant bore the initial burden of presenting some evidence of insanity, at which point the burden shifted to the prosecution to prove the defendant’s sanity beyond a reasonable doubt. See In re Certified Question, 425 Mich. 457, 465–466, 390 N. W. 2d 620, 623–624 (1986); People v. Savoie, 419 Mich. 118, 126, 349 N. W. 2d 139, 143 (1984). The Michigan Court of Appeals applied the same burden-shifting framework to the diminished-capacity defense. See People v. Denton, 138 Mich. App. 568, 571–572, 360 N. W. 2d 245, 247–248 (1984).
In 1994, however, the Michigan Legislature amended Mich. Comp. Laws Ann. §768.21a, the statute codifying the insanity defense, to provide that the defendant bears “the burden of proving the defense of insanity by a preponderance of the evidence.” 1994 Mich. Pub. Acts p. 252 (codified at §768.21a(3)). In Carpenter, the defendant argued that the trial court had erred by applying the 1994 Act to require him to establish his diminished-capacity defense by a preponderance of the evidence. 464 Mich., at 225–226, 235, 627 N. W. 2d, at 277, 282. Rejecting this contention, the Michigan Court of Appeals affirmed the defendant’s convictions. See People v. Carpenter, No. 204051, 1999 WL 33438799 (July 16, 1999) (per curiam). Consistent with its decision in Mangiapane, the court held that the 1994 statutory amendments applied to defendants raising the diminished-capacity defense, and it further held that requiring defendants to establish their diminished capacity by a preponderance of the evidence did not unconstitutionally relieve the prosecution of its burden to prove the mens rea elements of a crime beyond a reasonable doubt. Id., at *1–*2.
In turn, the Michigan Supreme Court also affirmed, but it did so on an entirely different ground. As earlier stated, see supra, at 2–3, the court concluded that in no case could criminal defendants invoke the diminished-capacity defense, for that defense was not encompassed within the “comprehensive statutory scheme” the Michigan Legislature had enacted to govern defenses based on mental illness or retardation. Carpenter, 464 Mich., at 236, 627 N. W. 2d, at 282. Noting that previously it had “acknowledged in passing the concept of the diminished capacity defense,” 5 Michigan’s high court emphasized that it had “never specifically authorized . . . use [of the defense] in Michigan courts.” Id., at 232–233, 627 N. W. 2d, at 281. Squarely addressing the issue for the first time, the court concluded that the diminished-capacity defense was incompatible with the Michigan Legislature’s “conclusiv[e] determin[ation]” of the circumstances under which “mental incapacity can serve as a basis for relieving [a defendant] from criminal responsibility.” Id., at 237, 627 N. W. 2d, at 283. The statutory scheme enacted by the Michigan Legislature, the court held, “created an all or nothing insanity defense.” Ibid. But cf. supra, at 9. A defendant who is “mentally ill or retarded yet not legally insane,” the court explained, “may be found ‘guilty but mentally ill,’ ” but the legislature had foreclosed the use of “evidence of mental incapacity short of insanity . . . to avoid or reduce criminal responsibility by negating specific intent.” 464 Mich., at 237, 627 N. W. 2d, at 283.2
The Michigan Court of Appeals concluded that applying Carpenter retroactively to Lancaster’s case did not violate due process, for Carpenter “concerned an unambiguous statute that was interpreted by the [Michigan] Supreme Court for the first time.” App. to Pet. for Cert. 77a. As earlier Michigan Court of Appeals decisions indicate, see supra, at 8–10, the bearing of the 1975 legislation on the diminished-capacity defense may not have been apparent pre-Carpenter. But in light of our precedent and the history recounted above, see Part II–B–1, supra, the Michigan Court of Appeals’ decision applying Carpenter retroactively does not warrant disapprobation as “an unreasonable application of . . . clearly established [f]ederal law.” 28 U. S. C. §2254(d)(1).
This case is a far cry from Bouie, where, unlike Rogers, the Court held that the retroactive application of a judicial decision violated due process. In Bouie, the South Carolina Supreme Court had unexpectedly expanded “narrow and precise statutory language” that, as written, did not reach the petitioners’ conduct. 378 U. S., at 352. In Carpenter, by contrast, the Michigan Supreme Court rejected a diminished-capacity defense that the court reasonably found to have no home in a comprehensive, on-point statute enacted by the Michigan Legislature. Carpenter thus presents the inverse of the situation this Court confronted in Bouie. Rather than broadening a statute that was narrow on its face, Carpenter disapproved lower court precedent recognizing a defense Michigan’s high court found, on close inspection, to lack statutory grounding. The situation we confronted in Bouie bears scant resemblance to this case, and our resolution of that controversy hardly makes disallowance of Lancaster’s diminished-capacity defense an unreasonable reading of this Court’s law.
On the other hand, as the Sixth Circuit recognized, see 683 F. 3d, at 749–751, Lancaster’s argument against applying Carpenter retroactively is arguably less weak than the argument opposing retroactivity we rejected in Rogers. Unlike the year and a day rule at issue in Rogers, the diminished-capacity defense is not an “outdated relic of the common law” widely rejected by modern courts and legislators. 532 U. S., at 462. To the contrary, the Model Penal Code sets out a version of the defense. See ALI, Model Penal Code §4.02(1), pp. 216–217 (1985) (“Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense.”). See also id., Comment 2, at 219 (“The Institute perceived no justification for a limitation on evidence that may bear significantly on a determination of the mental state of the defendant at the time of the commission of the crime.”). And not long before the 1993 shooting at issue here, the American Bar Association had approved criminal-justice guidelines that (1) favored the admissibility of mental-health evidence offered to negate mens rea, and (2) reported that a majority of States allowed presentation of such evidence in at least some circumstances. See ABA Criminal Justice Mental Health Standards §7–6.2, and Commentary, pp. 347–349, and n. 2 (1989). See also Clark v. Arizona, 548 U. S. 735, 800 (2006) (Kennedy, J., dissenting) (reporting that in 2006, “a substantial majority of the States” permitted the introduction of “mental-illness evidence to negate mens rea”).
Furthermore, the year and a day rule was mentioned only three times in dicta in Tennessee reported decisions. Rogers, 532 U. S., at 464. The diminished-capacity defense, by contrast, had been adhered to repeatedly by the Michigan Court of Appeals. See supra, at 8–10. It had also been “ ‘acknowledged in passing’ ” in Michigan Supreme Court decisions and was reflected in the Michigan State Bar’s pattern jury instructions. 683 F. 3d, at 746–749 (quoting Carpenter, 464 Mich., at 232, 627 N. W. 2d, at 281).
These considerations, however, are hardly sufficient to warrant federal habeas relief under 28 U. S. C. §2254(d)(1)’s demanding standard. See Williams v. Taylor, 529 U. S. 362, 410 (2000) (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Rogers did not hold that a newly announced judicial rule may be applied retroactively only if the rule it replaces was an “outdated relic” rarely appearing in a jurisdiction’s case law. 532 U. S., at 462–467. Distinguishing Rogers, a case in which we rejected a due process claim, thus does little to bolster Lancaster’s argument that the Michigan Court of Appeals’ decision unreasonably applied clearly established federal law. See Williams, 529 U. S., at 412 (the phrase “clearly established [f]ederal law” in §2254(d)(1) “refers to the holdings . . . of this Court’s decisions as of the time of the relevant state-court decision” (emphasis added)).
This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fairminded jurists could conclude that a state supreme court decision of that order is not “unexpected and indefensible by reference to [existing] law.” Rogers, 532 U. S., at 462 (internal quotation marks omitted). Lancaster therefore is not entitled to federal habeas relief on his due process claim.* * *
For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is
1 As relevant here, a homicide constitutes first-degree murder under Mich. Comp. Laws Ann. §750.316 if it is “wil[l]ful, deliberate, and premeditated.”
2 Title 28 U. S. C. §2254(d) provides that where, as here, a state prisoner’s habeas claim “was adjudicated on the merits in State court,” a federal court may not grant relief with respect to that claim unless the state court’s adjudication of the claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Lancaster does not allege that the Michigan Court of Appeals’ decision “was based on an unreasonable determination of the facts” in his case, nor does he develop any ar-gument that the state court’s decision was “contrary to” this Court’s precedents. See Williams v. Taylor, 529 U. S. 362 –413 (2000) (a state-court decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts”). The only question in this case, therefore, is whether the Michigan Court of Appeals unreasonably applied “clearly established [f]ederal law, as determined by [this] Court.” 28 U. S. C. §2254(d)(1).
3 Lancaster does not argue that the Michigan Supreme Court’s rejection of the diminished-capacity defense in People v. Carpenter, 464 Mich. 223, 627 N. W. 2d 276 (2001), if applied only prospectively to defendants whose alleged offenses were committed after the decision was issued, would violate any constitutional provision. See Clark v. Arizona, 548 U. S. 735 –779 (2006) (rejecting due process challenge to Arizona’s restrictions on mental-disease and capacity evidence offered to negate mens rea). We therefore address only whether the Michigan Court of Appeals unreasonably applied clearly established federal law in upholding Carpenter’s retroactive application to Lancaster’s case.
4 At the time of Lynch, Michigan courts used a two-part test for insanity derived from the Michigan Supreme Court’s decision in People v. Durfee, 62 Mich. 487, 494, 29 N. W. 109, 112 (1886). The Durfee test asked “1) whether defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act?” People v. Martin, 386 Mich. 407, 418, 192 N. W. 2d 215, 220 (1971). See also Carpenter, 464 Mich., at 234, n. 7, 627 N. W. 2d, at 281, n. 7.
5 Carpenter cited three decisions in which the Michigan Supreme Court had previously mentioned the diminished-capacity defense: (1) People v. Lloyd, 459 Mich. 433, 450, 590 N. W. 2d 738, 745 (1999) (per curiam), which held that defense counsel was not constitutionally ineffective in presenting a diminished-capacity defense rather than an insanity defense; (2) People v. Pickens, 446 Mich. 298, 329–331, 521 N. W. 2d 797, 811–812 (1994), which rejected a defendant’s claim that his attorney rendered ineffective assistance by failing to pursue a diminished-capacity defense; and (3) People v. Griffin, 433 Mich. 860, 444 N. W. 2d 139, 140 (1989) (per curiam), a summary order remanding a case to the trial court for a hearing on the defendant’s claim that the defendant’s attorney was ineffective “for failing to explore defenses of diminished capacity and insanity.” See Carpenter, 464 Mich., at 232–233, 627 N. W. 2d, at 281. See also 683 F. 3d 740, 746–749, 751 (CA6 2012) (describing additional Michigan Supreme Court decisions that mention the diminished-capacity defense, but acknowledging that the Michigan Supreme Court “did not squarely address the validity of the defense until” its 2001 decision in Carpenter); App. to Brief for Respondent A–1, A–3 to A–4 (citing eight pre-Carpenter Michigan Supreme Court decisions mentioning the diminished-capacity defense).
ORAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-547, Metrish v. Lancaster.
John J. Bursch: Thank you, Mr. Chief Justice, and may it please the Court:
This is a Sixth Circuit habeas appeal involving AEDPA deference.
Harrington v. Richter holds that a Federal court may only overturn a State court conviction that is such an erroneous misapplication of this Court's clearly established precedent as to be beyond any possibility of fair-minded disagreement.
That is, an extreme malfunction.
Here, a fair-minded jurist could conclude that the Michigan Supreme Court's Carpenter decision was neither indefensible nor unexpected when it simply applied plain statutory language in accord with well-established Michigan interpretive principles.
Accordingly, the Michigan Court of Appeals application of Carpenter was not error, and the Sixth Circuit should be reversed.
I'd like to begin with the statutory text.
In 1975, the Michigan legislature passed a comprehensive mental capacity affirmative defense statute.
In it, the defenses are defined for mental illness and mental retardation, but it says nothing about diminished capacity.
And that silence is crucial here, because in Michigan, for over 200 years, it has been a code jurisdiction, which means that if the statutes address a particular area of criminal law, only that statute applies, and the Michigan courts are not allowed to either add to or subtract from that statutory text.
So only the Michigan legislature had the power to add a diminished capacity defense.
Justice Antonin Scalia: 200 years -- 200 years?
Did you say that?
John J. Bursch: Yes.
Actually, even before Michigan was a territory -- I'm -- before it was a State in 1810, it passed a law that abolished common law criminal principles when there was a statute that addressed the -- the subject matter.
Justice Ruth Bader Ginsburg: There was some law in effect in Michigan on this subject from the year 1973 till the year 2001.
There was no statute and there was no ancient common law.
But what -- what was it?
If I asked you the question, what was the law in Michigan on diminished capacity from 1973 to 2001, what would you respond?
John J. Bursch: It -- it changed one time.
In 1973, there was a Michigan Court of Appeals decision that recognized as a matter of common law the diminished capacity defense, but that was set aside by the 1975 statute which established all the comprehensive diminished capacity defenses available, and left out diminished capacity.
So in 1975, 1976, you know, 1978--
Justice Ruth Bader Ginsburg: How -- how was the Michigan Court of Appeals construing the defense?
Did it say -- it didn't say anything about the 1975 statute.
John J. Bursch: --Well, what the Michigan Court of Appeals did beginning in 1978 in the Mangiapane case was to ask, is diminished capacity part of the statutory code, and it never held expressly that it was.
What it did in Mangiapane and in subsequent cases, it assumed that the defense existed, but it never held that.
And that dicta could not override the plain language of the statute.
And, in fact, counsel on the other side has not pointed to a single Michigan decision where a conviction or an exoneration on acquittal, or even a finding of ineffective assistance was ever based on the diminished capacity defense.
Justice Anthony Kennedy: Was the 1973 case that you mentioned based on a statute or was it based on allegedly a vacuum that the statutory structure allowed the court to fill?
I mean, is that the way the 1973 case came about?
And was the 1973 case followed by other courts, or was it just an isolated precedent?
John J. Bursch: The 1973 case was a common law vacuum, Justice Kennedy, where the Michigan legislature had not yet spoken about mental incapacity defenses, and so it stood alone, as the court was able to do, as a common law decision.
There were no other cases that relied on it before the '75 statute was enacted.
And after that point, the Michigan appellate courts did not look to the '72 decision as the source of the doctrine.
They assumed that if it existed, it must be somewhere within the statute.
And then in Carpenter, in 2001, the Michigan Supreme Court, when finally the very first Michigan court to look at the question explicitly says, well, it's not in the statute, diminished capacity isn't there.
We've got mental retardation, we've got mental illness.
No diminished capacity.
As the Michigan judiciary, we lack the power to add the diminished capacity defense.
Justice Samuel Alito: Well, we don't -- well, we don't really have to reach this issue in this case, according to your submission, but what would happen if a State -- an intermediate State appellate court said the law is such-and-such, and then a -- a person is tried in the interim, is tried and subsequently, the State supreme court says that intermediate State court decision was incorrect, that never was the law of this State; the law was exactly the opposite.
John J. Bursch: I think you would apply the same principles to that hypothetical as you did in Rogers.
And -- and in Rogers, you had a nearly 100-year common law history of the year and a day rule in the Tennessee Supreme Court that the defense was available to use that term for nearly 100 years, and yet it didn't violate due process in Rogers for the Tennessee Supreme Court to abolish the rule because it was neither indefensible nor unexpected.
Now, this case is much easier than Rogers or your hypothetical for several reasons.
First, as I mentioned, it's a habeas case and so we've got the layer of AEDPA deference that wasn't there.
Second, we're not talking about the evolution of the common law like we were in Rogers.
We're talking about a statute and the statute meant what it said in '75, just like it did in '01, just like it does today.
And the last thing is that in the Rogers case even the Tennessee Supreme Court acknowledged there was a change.
And here the Michigan Supreme Court said there was no change because the statute said what it said in 1975 and that meant no diminished capacity.
Justice Samuel Alito: Well, what I'm wondering is how we even get beyond the statement, the holding by a State supreme court regarding the -- the law of the State.
Don't we have to accept that as the -- as the law of the State?
Isn't that what our decision in Fiore says?
If the State supreme court says this is the law and it's always been the law, then how can we second-guess that?
John J. Bursch: Justice Alito, I would think about it in -- in two pieces.
And the first piece is can you second-guess the Michigan Supreme Court's interpretation of the statute, and I think the answer there everybody has to agree is no.
The State's interpretation of its own statute binds this Court, binds all Federal courts, just like the South Carolina Supreme Court decision in -- in Bouie did.
With respect to the Michigan Supreme Court's analysis of the retroactive effect, I agree that Fiore stands for that very proposition, and I think Indiana makes that case very forcefully in the -- the multi-State amici brief.
You don't have to reach that question here, however, because given the AEDPA standard and the fact that the Michigan Supreme Court decision was so clearly not a misapplication of Rogers and Bouie, it makes this a relatively easy case.
But I think you'd be fully within your right to follow the Fiore holding.
Justice Elena Kagan: You -- you suggested, General, that the -- the fact that this is statutory makes your position easier.
John J. Bursch: Yes.
Justice Elena Kagan: And I wonder if that's true.
I mean, you could see an -- an argument the exact other way, which suggests that we all understand that common law changes and evolves over time, but that it's rare for a court to reverse a decision on what a statute means, and that that's not foreseeable in the same way.
So -- now, especially if it were a single court saying the statute means A today, and then tomorrow it comes back and it says, no, it means B, whether that isn't actually -- whether that wouldn't cut against your position.
John J. Bursch: Justice Kagan, I think this is the easiest case, because it's not just statutory interpretation; it's statutory interpretation of a statute that is just plain on its face.
If you had an ambiguous statute, yes, then maybe there would be some more uncertainty.
But where you've got a statute that enumerates several defenses, does not include diminished capacity, and under Michigan law it's not enumerated, it's not there, and the courts can't add it, that does make this easier.
I think it was probably a -- a bigger challenge in Rogers, for example, to acknowledge that, one, Tennessee law had changed right out from underneath the defendant; and yet, even given that change, this Court was comfortable that it was not indefensible or unexpected.
I think when--
Justice Ruth Bader Ginsburg: Counsel, what about the Michigan Court of Appeals?
There's only one court of appeals, right?
John J. Bursch: --Correct, Justice Ginsburg.
Justice Ruth Bader Ginsburg: And so that court several times recognized diminished capacity as a defense.
John J. Bursch: Well, it -- it didn't recognize it as a defense in the sense that it analyzed the statute and said yes, the defense is available.
It in many instances assumed that it might exist and if it did then this is the result.
The closest it comes is this Mangiapane decision in 1978, and the court says very specifically there that the definition of mental illness in the statute, it's similar to diminished capacity, but the court says at page 247 of the North West Second Report the court was not prepared to say they are identical.
Justice Ruth Bader Ginsburg: The--
John J. Bursch: So--
Justice Ruth Bader Ginsburg: --Your colleague said that there were 130 appellate decisions -- I take it that's the court of appeals decisions -- recognizing diminished capacity as a defense.
John J. Bursch: --Recognizing it as a possible defense.
Again, in every single one of those cases, all of which would be contrary to the statutory language, incidentally, in not a single one of them did a conviction or an acquittal or a finding of ineffective assistance ever turn on that point.
And so in that sense, it's also again very much like Rogers, where this Court said that the year and a day rule had never been used for an acquittal or a conviction in any Tennessee case.
And so the question is, again through the AEDPA deference lens, which is very high, was the Carpenter decision defensible and expected?
And we would submit that any time that a State supreme court applies the plain language of the statute in accord with established principles of interpretation in that State, it could almost never be indefensible or unexpected.
Justice Sonia Sotomayor: This -- that seems a little strange for the following reason, just as I think this case presents an example.
You're claiming it's clear because the supreme court said it was clear, but the court of appeals in Mangiapane, whether or not it assumed it or not, did an analysis that clearly says that it believes that the definition of legal insanity includes diminished capacity.
Its holding didn't need that analysis, because it could have assumed it and then just said: But no notice was given, so the defense fails here.
It took the time to analyze just this question and came to a contrary conclusion.
Its contrary conclusion was that “ legal insanity ” was a broad enough term under Michigan law to encompass this defense.
The court of -- the State supreme court has now said no, it's not.
But I don't know that that makes the statute any less ambiguous merely because a court announces that it thin ks it's not.
John J. Bursch: Well, two responses to that, Justice Sotomayor.
First, I want to be again very careful about what Mangiapane actually held.
It did look at the statutory language and at page 247 said:
"We are not prepared to say they are identical. "
meaning the definition of mental illness and the concept of diminished capacity.
There the question was procedural because the defendant had not given the prosecutor notice of any defense based on mental capacity in the trial court, and so the court said, well, you know, assuming that the -- the defense exists, we are not prepared to decide that today--
Justice Antonin Scalia: Well, I--
John J. Bursch: --because you would have to give statutory notice.
Justice Antonin Scalia: --I -- I would have thought your -- you can get to your second one, but I would have thought your first response to -- to the question would have been to deny that you say it's clear because the Supreme Court of Michigan has said so.
I thought your argument is it's clear because it's clear.
John J. Bursch: --Justice Scalia, that was my second point.
Justice Antonin Scalia: Ah, okay.
It should have been your first point.
The premise is simply wrong.
You're saying it was clear because the statute's clear.
John J. Bursch: It was clear.
And if any Michigan court had had the opportunity to actually decide it on the merits in light of this 200-year history of Michigan being a criminal code State, it was clear.
And so this is the point when a State court decision is most defensible and most expected, applying the plain language of a clear statute in accord with State principles.
Justice Anthony Kennedy: Are there any States with a statute identical or -- or close to the Michigan statute that have interpreted the statute to say it does include diminished capacity?
John J. Bursch: Justice Kennedy, I'm not aware of--
Justice Anthony Kennedy: This statute is -- fairly well tracks the common law tradition, which indicates that diminished capacity is not a defense.
John J. Bursch: --Right.
Justice Anthony Kennedy: I'm just curious to know if any State courts have reached an opposite conclusion under a statute like that.
John J. Bursch: I'm not aware of any other States that have the same statute and have addressed the question one way or the other.
I do know that the language of the Michigan statute is fairly unique.
If you look in the criminal law treatises, we're kind of in a category of only a very few States that, you know, on the one hand, define mental illness and mental retardation, do not define or mention diminished capacity, and yet still have this guilty but insane option, which is something that Michigan common law did not have, but then that was added in the '75 statute.
So it's a little bit unique.
I think it's also unique to Michigan that we have this 200-year criminal code history, which if you're interested you can read all about it in the In Re Lamphere case that we cite on page 4 to 5 of our reply brief.
But it's when you put those things together that really make this such an easy case.
Justice Elena Kagan: Well, General, I guess I wonder whether it's relevant what the statute really says as opposed to what courts said it says.
I mean, sometimes judges make errors and our law is dotted with places where courts have made errors and said that things mean what they don't mean or don't mean what they do mean, and, you know, we expect people to follow what the court says is the law even if there's really a better reading out there.
And also, we think that people should rely on what the court says is the law, even though there's really a better reading out there.
And so, you know, what does it matter if we come out and said -- and say, you know, what were these crazy Michigan courts doing?
If that's what they were doing, it seems as though people had a right to rely on that.
John J. Bursch: Well, the expectation certainly is that people would rely on Michigan statutory law.
And I concede that this would be a more difficult case if the Michigan Supreme Court in, say, 1990 had come out in a published opinion and and said the exact opposite of what it said in 2001.
Obviously, that's not what happened here.
But -- but ultimately, you know, the question that would have been on Mr. Lancaster's mind back in 1993 when he shot and killed Toni King was, does Michigan law prohibit me, will it punish me if I -- I kill someone?
And -- and clearly, he had to know that.
And if he had looked at the 1975 statute, he would have seen that diminished capacity was not mentioned there.
So to the extent that he -- he wanted to rely on that defense, he wouldn't have found it in Michigan's codified law.
Now, I know the argument on the other side is, well, we have these other cases which, you know, mention the doctrine, kind of assume without deciding that -- that it's out there.
And he wants to assume that he has all the knowledge of that, but not the knowledge of the background principle that Michigan won't add affirmative defenses to a statute through a judicial action.
And if you're going to impute any knowledge to him, and -- and we submit that you probably shouldn't, then you've got to impute all the knowledge of Michigan law, the plain language of the statute and the interpretive principles that should guide what that statute means.
He knew that killing someone was wrong.
Unquestionably, he was on fair notice of that.
And -- and just like in Rogers, this diminished capacity defense after 1975 was never relied on by any Michigan court to either hold someone guilty or to acquit them or to find that there was ineffective assistance.
It just was not the kind of well-established principle that could possibly make the Carpenter decision either indefensible or unexpected.
And then when you layer that on top with AEDPA deference, you know, really, this is about as simple as it gets.
There is no decision of -- of this Court, not Rogers, not Bouie, not Fiore, not Bunkley, any Court decision that is contrary to or misapplied in this Michigan Court of Appeals opinion.
Unless the Court has any further questions, I'll reserve the balance of my time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF KENNETH M. MOGILL ON BEHALF OF THE RESPONDENT
Kenneth M. Mogill: Mr. Chief Justice -- excuse me -- and may it please the Court:
At the time of his offense in this matter, Respondent had a well-established uncontested right to present evidence of diminished capacity in order to negate the elements of premeditation and deliberation in the first-degree murder charge against him, and he did assert that defense at his first trial.
That trial was rendered unfair by the prosecutor's Batson error.
Respondent was not allowed to present the same defense at his retrial, however, because 8 years after his offense, the Michigan Supreme Court unexpectedly changed the rules in midstream, holding in Carpenter that a statute that had been enacted 26 years before and that did not use the words “ diminished capacity ”, did not express an intent to abolish any defense of diminished capacity, but the Supreme Court held that it had been abolished.
That was fundamentally unfair to Respondent, all the more so, because if the Michigan courts had ruled correctly on the Batson issue, retrial would have occurred before 2001, and there's no question but that Respondent would have been able to raise the diminished capacity as--
Justice Antonin Scalia: He would have been able to raise it.
There's a lot of question about whether it would have been successful, because if it had gone up to the Michigan Supreme Court -- the statute was in effect during his first trial?
Kenneth M. Mogill: --That's correct.
Justice Antonin Scalia: He could have raised it, but if it went up to the Michigan Supreme Court, it would have had the same result as here.
Kenneth M. Mogill: With all due respect--
Justice Antonin Scalia: And your only -- your only defense would have been, oh, it's a great surprise.
But I don't see how it's a surprise if the Michigan law has been, as -- as the Solicitor General of Michigan has described it, that -- that there's a clear tradition.
If -- if the statute addresses the area, the courts will not -- will not supplement it by -- by common law additions.
Did he not know that?
Kenneth M. Mogill: --With all due respect to opposing counsel, I -- the view -- our view of the law is -- is entirely different.
Michigan recognizes the common law in its Constitution.
Michigan law has -- was firmly established that the diminished capacity defense existed.
Justice Antonin Scalia: Why do you say it was firmly -- do you -- do you contest the -- the assertion by the solicitor general that there is no case which -- which acknowledged and held the defense of diminished capacity?
Kenneth M. Mogill: --I disagree.
Justice Antonin Scalia: Is that wrong?
Kenneth M. Mogill: Yes.
Justice Antonin Scalia: What -- what case--
Kenneth M. Mogill: Well, first of all -- I'm sorry, Justice Scalia.
Justice Antonin Scalia: --lets the defendant off on the basis of diminished capacity?
Kenneth M. Mogill: The -- let somebody off?
Well, first of all, we're not talking about--
Justice Antonin Scalia: What case has a holding, a holding that diminished capacity excuses the crime or mitigates the crime.
Kenneth M. Mogill: --Mitigates.
Justice Scalia, in Lynch itself in 1973, Ms. Lynch was charged with first-degree murder for the starvation -- in relation to the starvation death of her infant.
The trial judge declined to permit -- declined to permit her to offer psychiatric testimony to mitigate to second degree.
The court of appeals reversed, indicating that evidence, mental health evidence of the kind she wanted to offer, was admissible to establish diminished capacity, that is, to negate the element of premeditation and deliberation.
Once that case was decided, there is one direction only in Michigan law from 1973 until Carpenter by surprise in 2001.
Yes, the statute was passed in 1975, and just 3 years later in 1978, Mangiapane decided that diminished capacity comes within the definition of legal insanity.
The phrasing in the -- in the court's opinion is very significant and it's much more than opposing counsel suggests.
The court stated explicitly:
"We find that the -- the defense known as diminished capacity is codified within the definition of legal insanity. "
Once that happened, then that required an accused who wanted to raise a diminished capacity partial defense to comply with the procedural requirements of the new statute.
From that point forward, it was clear that diminished capacity -- and -- and these are published court of appeals decisions, so they are binding precedent statewide in Michigan unless or until reversed or modified by the State supreme court, the legislature, or a constitutional amendment.
Once that happened, there is not a case, including in Carpenter itself, where the prosecution objected to the admissibility of diminished capacity evidence.
It was so well-established, it was beyond question.
It was so well--
Justice Ruth Bader Ginsburg: I think the question that was asked was, as a bottom line at the end of the day--
Kenneth M. Mogill: --Yes.
Justice Ruth Bader Ginsburg: --did anybody get sentenced less?
Did it affect the outcome?
You gave a case where a defendant was allowed to raise diminished capacity, but was -- are there cases where the defense was successful on the merits?
Kenneth M. Mogill: Justice Ginsburg, I think that's a very important question.
The -- the closest I can come, the first part of my answer is in the Griffin case in 1989, in an order which was a dispositive order and therefore was precedent, the Michigan Supreme Court disposed of an application for leave to appeal by vacating and remanding a case for an ineffective assistance hearing because of defense counsel's failure, inter alia, to consider a diminished capacity defense.
That order could not have occurred unless the supreme court had determined that diminished capacity was a valid defense.
The second part--
Justice Antonin Scalia: Or -- is that correct?
Wouldn't -- wouldn't the supreme court have done that if it -- if it thought that at least -- at least it was arguable?
Kenneth M. Mogill: --I -- I respectfully submit that under Strickland analysis, no.
If it -- if it's not an established defense, if it's not something that would arguably come within the Strickland framework, there would not have been a remand.
That would have been a -- a question of a lawyer trying to be creative, but it wouldn't implicate Strickland principles.
Justice Anthony Kennedy: Well, I'm -- I'm a little surprised at your answer and Justice Scalia's question indicates the same.
If the law was as well settled as you say it was in the appellate courts, then it seems to me certainly counsel should raise it and is arguably deficient for not doing so.
Whether or not he'll prevail at the end of the day is something quite different.
Kenneth M. Mogill: Well, Justice Kennedy, I believe that the basis for a remand in a case like this, and this is not an unusual kind of a situation in practice, is where the law is clear, then the remand is to determine the factual basis for the defendant's claim, were the facts such that a reasonably competent attorney should have been expected to investigate and -- and raise it.
Chief Justice John G. Roberts: You said your view of the law was, you know, so well-established--
Kenneth M. Mogill: Yes.
Chief Justice John G. Roberts: --as to be beyond question.
That is the standard under AEDPA, right?
Kenneth M. Mogill: Well -- I'm sorry.
Chief Justice John G. Roberts: You have to be -- you have to be -- you have to be that right to prevail, right?
Kenneth M. Mogill: What I have to establish is that the decision of the Michigan Court of Appeals here was objectively unreasonable.
And whether it's beyond question, I think we certainly have objectively unreasonable ruling for the reasons that it was without -- not only was it well-established -- and I want to weave into this the second part of what I'd like to answer of Justice Ginsburg's question.
I think it's very important in understanding the question of reversals or not what the lay of the land was, because where you have a framework that allows a defense to be raised and prosecutors aren't objecting, the -- the application's going to be a factual matter for a jury to decide.
So it's not going to be something that's going to percolate up into appellate legal issues.
It's going to be successful sometimes, it's not going to be successful sometimes, and there are no statistics on that.
But it doesn't -- it won't present a legal issue, and that's in no small part why the question of, well, what about a reversal--
Justice Samuel Alito: In Griffin -- you describe Griffin in your brief as follows:
"The court vacated, reversed, and remanded the decision below based on. "
"defendant's claim that trial counsel was ineffective for failing to explore defenses of diminished capacity and insanity. "
Kenneth M. Mogill: --Yes.
Justice Samuel Alito: “ And insanity ”.
So it wasn't specifically -- wasn't limited to diminished capacity.
Kenneth M. Mogill: And that's why in my--
Justice Samuel Alito: It was insanity in general.
Kenneth M. Mogill: --No, it was both.
The -- the insanity defense is separate from diminished capacity, which is a partial defense; in fact, in Respondent's first trial, prior counsel had raised both.
At retrial I only wished to raise the diminished capacity defense.
The law recognizes the difference between the two in Michigan.
Had diminished capacity not been a recognized defense, the court's order, I respectfully submit, would have been worded just with respect to insanity.
There would have been no legal basis for arguing -- or, excuse me, for including the -- the reference to diminished capacity.
Justice Antonin Scalia: Mr. Mogill, as -- as I understand your burden here, it's -- it's not enough to show that Michigan law seemed to be what you -- what you say it was; but it has to have been--
Kenneth M. Mogill: Yes.
Justice Antonin Scalia: --what you say it was.
Kenneth M. Mogill: Yes.
Justice Antonin Scalia: And it -- there was an evulsive change by the supreme court.
Kenneth M. Mogill: I agree with that, Justice Scalia.
And I think that's what we have.
We have, from--
Justice Antonin Scalia: It's -- it's hard to believe that, given -- given the clear text of the statute.
Kenneth M. Mogill: --The problem, I -- I respectfully submit, is that nobody in Michigan until Carpenter -- and -- and I -- it -- that sounds like an extreme statement, but again the record is clear.
Prosecutor's weren't objecting.
There is a State bar committee on criminal jury instructions whose responsibility it is to come up with standard jury instructions on areas of law that are agreed upon and -- and routinely enough raised in court to warrant a standard instruction.
That committee is comprised of judges, prosecutors, and defense attorneys.
In 1989, that committee promulgated a diminished capacity instruction.
That's how well established it is.
Justice Antonin Scalia: Now, if -- if a prosecutor raised that objection knowing that the court of appeals would -- would reverse the exclusion, right -- I mean, it's clear what the court of appeals would have done, right?
Kenneth M. Mogill: Yes.
Justice Antonin Scalia: And once the court of appeals reversed it and said the trial was infected with that error, could -- could the defendant be retried?
Kenneth M. Mogill: The -- what would happen--
Justice Antonin Scalia: Because he's -- he's convicted and the -- I'm sorry -- he's -- he's--
Kenneth M. Mogill: --Convicted, convicted of second instead of first; could he be tried on first?
Justice Antonin Scalia: --That's right.
Kenneth M. Mogill: No.
But that's the question.
Justice Antonin Scalia: Could he be retried?
Kenneth M. Mogill: On first, no.
Justice Antonin Scalia: Well, then -- then you would be crazy to raise it as a prosecutor.
Kenneth M. Mogill: --No.
What I -- but I -- Justice Scalia, the answer to your question is -- is encompassed by the statutory scheme which requires advanced notice.
The -- a defendant can't offer diminished capacity evidence in the middle of trial.
A defendant has to give 30 days or whatever other time set by the judge notice, or it had to at the time.
If the prosecutor, in any case, believed that such evidence wasn't admissible, the prosecutor had plenty of time prior to trial to seek an in limine ruling from the trial court, to seek an interlocutory appeal from the Michigan Court of Appeals.
Justice Antonin Scalia: He could get an -- an interlocutory appeal on that?
Kenneth M. Mogill: Absolutely.
Justice Antonin Scalia: Okay.
Kenneth M. Mogill: And -- and I will tell you the prosecutors in Michigan are aggressive in -- in seeking interlocutory appeals.
We have -- again, it is so well established, there is not a contrary decision, there is not a question raised in any opinion or any decision.
Justice Stephen G. Breyer: How many holdings are there?
Kenneth M. Mogill: There are many mentions with the -- the holdings--
Justice Stephen G. Breyer: I take it the answer is zero, right?
I mean, I--
Kenneth M. Mogill: --No.
Justice Stephen G. Breyer: --I looked at your brief and then I looked at their brief and they say the answer is zero.
Kenneth M. Mogill: Lynch is a holding.
Justice Stephen G. Breyer: And the -- the holding is that -- the pure holding would be if the trial court judge says no, you cannot raise it.
The defendant is convicted and appeals.
Kenneth M. Mogill: Yes.
Justice Stephen G. Breyer: And then he says to the appellate court: They wouldn't let me raise it.
And the appellate court says: You have a right to raise it.
Kenneth M. Mogill: And that's exactly Lynch, Justice Breyer.
Justice Stephen G. Breyer: That is Lynch.
And Lynch is what year?
Kenneth M. Mogill: 1973.
Justice Stephen G. Breyer: In 1973.
So we have one.
Kenneth M. Mogill: And -- I'm sorry.
Justice Stephen G. Breyer: And -- and was there any other case in 1973 -- this is 10 years before.
Was there any other case in which the same pattern of facts and they said the same thing as Lynch?
Kenneth M. Mogill: I -- I'm not aware--
Justice Stephen G. Breyer: No, but we -- we have Lynch on one side.
Is there any case -- this is an intermediate appeals court -- is there any case in which the defendant says, I would like to raise it, the judge says no, convicted, appeal, and the intermediate court of appeals says: Defendant, you are wrong?
Kenneth M. Mogill: --The answer to your question, Justice Breyer, is there is no such case.
And the reason--
Justice Stephen G. Breyer: Okay.
And so all this period from 1973 until 1995 or whatever--
Kenneth M. Mogill: --'93 was the offense.
Justice Stephen G. Breyer: --Carpenter.
Kenneth M. Mogill: No, 2001 was Carpenter--
Justice Stephen G. Breyer: 2001.
Kenneth M. Mogill: --The offense was '93.
Justice Stephen G. Breyer: There is exactly one case on point which does favor you, and there are zero cases that favor them; is that right?
Kenneth M. Mogill: If you talk holding only and if you discount Mangiapane.
Justice Stephen G. Breyer: Well, Mangiapane was a -- a lot of words, but the holding was not notice; isn't that right?
Kenneth M. Mogill: The holding was he didn't -- but there was no reason for the court--
Justice Stephen G. Breyer: Okay.
Kenneth M. Mogill: --to reach that question unless diminished capacity exists.
Justice Stephen G. Breyer: So we've got one.
That's -- I'm trying to find out what the state of the art.
Kenneth M. Mogill: Thank you.
Justice Stephen G. Breyer: The state of the art is one for you, zero for them.
Kenneth M. Mogill: If I can supplement that, Justice Breyer.
Justice Stephen G. Breyer: Yes.
Kenneth M. Mogill: One of the things -- one of the points this Court looked to in Rogers was how many times the year-and-a-day rule had been “ mentioned ”, and that -- this is -- that's this Court's word -- in Tennessee decisions.
And so one of the things we did, and that's the addendum in our red brief, is look at how many times there are mentions -- all of which are favorable, not one of which raises even a question, of diminished capacity in Michigan.
Justice Antonin Scalia: Was that -- how often was it mentioned in intermediate court opinions?
Kenneth M. Mogill: --We have 4 mentions in the Michigan Supreme Court and 33 in the Michigan Court of Appeals between 1975 and 1993, and we have over 100 -- about 100--
Justice Antonin Scalia: Four mentions in the supreme court that say what?
Kenneth M. Mogill: --Well, Griffin is one of them.
And then you have--
Justice Antonin Scalia: Yes.
Kenneth M. Mogill: --Yes.
Justice Antonin Scalia: Have we ever held that a State law has been determined to be X simply because intermediate State courts have uniformly held it to be X?
Never mind assumed it to be X; have held it to be X?
Kenneth M. Mogill: I don't know of a particular case.
But to answer your question, Justice Scalia, the law in Michigan is clear, as stated by the Michigan Supreme Court, that a published court of appeals decision is precedentially binding statewide unless and until reversed by the Supreme Court.
So the fact that--
Justice Antonin Scalia: It doesn't mean it's right.
Kenneth M. Mogill: --No.
But in terms of it--
Justice Antonin Scalia: You have to show it's right.
Kenneth M. Mogill: --No, I have to show that it is the law of the--
Justice Antonin Scalia: That it's the law.
Kenneth M. Mogill: --I have to show that it is the law of the State.
And it was the law of the State from 1973 forward.
And I would like to supplement that, if I might.
Chief Justice John G. Roberts: Could you -- I'm sorry.
Kenneth M. Mogill: When -- when Lynch was decided, it wasn't acting on something new.
The court of appeals opinion indicates that what we're doing is nothing novel because the diminished -- the right to present diminished capacity evidence to rebut an -- the elements of premeditation and deliberation, grows out of a 100-year history in Michigan.
Chief Justice John G. Roberts: Well, but the Lynch -- the Lynch case was 2 years before the Michigan legislature adopted--
Kenneth M. Mogill: Yes.
Chief Justice John G. Roberts: --the statute that we are dealing with here, right?
Kenneth M. Mogill: Yes.
Chief Justice John G. Roberts: And that's where you are putting, if not all of your eggs, most of your eggs, right?
Kenneth M. Mogill: No, I'm -- that -- that is -- that's an egg, and I think I've got a pretty full basket.
Chief Justice John G. Roberts: Well, that's the -- that's the whole case.
The whole -- the whole point is that the law made that moot because the law under Michigan did not specify diminished capacity and it's a code State, so you only get what they specified.
Kenneth M. Mogill: I disagree with that statement by brother counsel.
The -- and that's why I quoted Article 3, Section 7.
Chief Justice John G. Roberts: Well, but you'll at least -- well, maybe not.
I mean, would -- would you acknowledge that the force of Lynch was arguably diminished by the fact that Michigan passed a statute that did not mention the diminished capacity defense 2 years after it?
Kenneth M. Mogill: I would if the facts of the subsequent litigation supported that interpretation of the statute.
To the contrary, every case -- Mangiapane wasn't--
Chief Justice John G. Roberts: I'm talking about Lynch.
Justice Stephen G. Breyer: There were no others, and now I've reduced your one to nothing to like.01 to nothing, because it favors you, Lynch, yes, as the Chief Justice just pointed out, and now you've already said there were no other cases.
Kenneth M. Mogill: --No other holdings.
But we have many, many mentions, we have on-the-ground consistent reliance by prosecutors, defense attorneys, and judges.
Justice Sonia Sotomayor: That's -- that's your whole point, isn't it?
Kenneth M. Mogill: Yes.
Justice Sonia Sotomayor: You can't prove a negative, because if everybody accepts after Mangiapane that the defense exists then trial courts are not going to be excluding it on the basis that the statute excludes it.
Kenneth M. Mogill: Absolutely.
Justice Sonia Sotomayor: That's the whole point you are making.
Kenneth M. Mogill: And which gets me to -- to Rogers, and -- and we turn to the questions of fundamental fairness.
Justice Sonia Sotomayor: Do you have any -- is there any evidence of a trial court holding an exclusion?
Kenneth M. Mogill: There is nothing.
Justice Sonia Sotomayor: Or even suggesting one?
Kenneth M. Mogill: It -- it is so extreme, Justice Sotomayor, that even in Carpenter itself, the prosecution did not contest the admissibility of diminished capacity evidence as a trial court--
Justice Stephen G. Breyer: But that's because -- everybody agrees with you, I think -- I agree with you on this anyway.
I agree the bar puts it in the instructions, and if the bar puts it in the instructions, people tend to follow it.
So it's not surprising that a lot of people tend to follow it.
But as far as court decisions are concerned, we have no -- what I'm trying to think of is a pre-statute.
I give you a little credit on that.
Pre-statute, and we have what I might sort of exaggeratedly refer to as the great mentioner.
We've noticed the great mentioner is often wrong, and -- and here, even though there are judicial mentioners, they get something.
I don't know how much in the scale to -- to give them.
Kenneth M. Mogill: --Well, with all due respect, the standard that this Court set in Rogers is whether the -- the decision of Carpenter, in this case, would have been unforeseeable and indefensible by reference to the law as previously expressed so that it could be applied retroactively.
Justice Stephen G. Breyer: Can you think of a Federal case where -- I see what we have.
I'm now adding up the something for Lynch, the something for the bar, which is a -- which is a something, and -- and then the fact that some courts have quite, not surprisingly, tended to follow it and there were others that mentioned it favorably, but not the Michigan Supreme Court.
Kenneth M. Mogill: No, the Michigan Supreme Court did mention it favorably as well.
Justice Stephen G. Breyer: Okay.
So -- so we've got that.
Now, actually, that Kentucky case, was it?
Kenneth M. Mogill: Rogers?
Justice Stephen G. Breyer: Yeah, Rogers.
That went against you.
Kenneth M. Mogill: I think the principle that the Court established there was very much--
Justice Stephen G. Breyer: All right.
But can you think of any Federal precedent on this issue that's come even close to that being sufficient?
What's your best?
Kenneth M. Mogill: --I think the closest point, and it's important, and it goes, Justice Scalia, to respond to your point about lower court -- reliance on lower court opinions, is in Lanier, when the question concerned what's the scope of the statute that's at issue here.
And this Court very explicitly stated that its permissible for the world outside of court to look at lower court decisions, court of appeals decisions, in terms of what had been reasonably expressed.
Justice Anthony Kennedy: If you -- if you prevail here, it may well change the dynamic for State supreme courts.
State supreme courts, much like us, they wait until courts of appeals have issued their opinions.
They wait to see how the practical application of those works insofar as of the fairness of the trial.
They wait to see about scholarly commentaries, and then they -- and then they take the case.
If you prevail, State supreme courts are -- are going to say, you know, if we don't take this case, even if though it's -- does not present the issue as clearly as some other case might, we don't rush in, then we're going to be foreclosed.
I think you're proposing a -- a dynamic which makes the Federal courts intrude on the way in which State courts choose to develop their law.
Kenneth M. Mogill: --Justice Kennedy, thank you for that question, but I respectfully disagree.
The relief we are requesting here is simply that while the Michigan Supreme Court was entirely free to interpret this statute any way it wanted to prospectively, so long as it didn't conflict with some other decision of this Court, the question is: What about applying it retroactively?
And this Court in Bouie and Rogers has set out clear principles for when a court that wants to reverse ground can do that or not, consistent with fundamental fairness, principles of notice, foreseeability, et cetera, all of which go in our direction here.
An -- an interesting contrast, and I think a useful contrast--
Justice Samuel Alito: Well, what is the unfairness--
Kenneth M. Mogill: --I'm sorry?
Justice Samuel Alito: --What is the unfairness here?
Do you think there's a reliance?
Kenneth M. Mogill: There's not a reliance, nor is that an element--
Justice Samuel Alito: What is the -- so what is the unfairness here?
Kenneth M. Mogill: --In both -- in both Bouie and Rogers, this Court made it clear that reliance is not an issue.
The unfairness, and that's a very important point, Justice Alito, is that by eliminating the right to present this category of evidence, the mental health evidence that would show, if accepted by a jury, that the Respondent was guilty of second-degree murder instead of first-degree murder, what the court was doing was expanding the -- the scope of premeditation and deliberation; they were aggravating the offense.
That is a fundamental unfairness.
Justice Ruth Bader Ginsburg: But this -- the case is -- is very different from Bouie which you -- which you rely on.
In -- in Bouie, it was the question of a rule that is governing conduct.
People come on to premises; they have no reason to think that they are committing an offense if they don't leave when somebody asks them to if they came onto the premise lawfully.
So what the Court said in Bouie was that this is a regulation of primary conduct, and at the time these people acted, they had no reason to believe that what they did was unlawful.
That's quite a different--
Kenneth M. Mogill: Yeah, I agree with that, Justice Ginsburg, except that at footnote 5 in Bouie, this Court explicitly rejected the notion that subjective reliance by the accused is -- is even an aspect of the test for determining--
Justice Ruth Bader Ginsburg: --It -- it isn't subjective reliance, it's -- it's what was the law.
Kenneth M. Mogill: --And--
Justice Ruth Bader Ginsburg: The Court said that the State supreme court interpretation of the statute was quite a surprise.
Kenneth M. Mogill: --Yes.
And what the Court did in both Bouie and in Rogers was look at the underlying State law.
In Bouie, the Court looked at the history of South Carolina law regarding trespass and found that until a year and a half later, it hadn't been construed to apply to a failure to leave as opposed to an entry.
In Rogers, the Court surveyed the very -- a very sparse Tennessee authority on the year and a day rule.
That same analysis here will -- must lead to a conclusion that all of the law in Michigan -- and again, there are minimal holdings for the reasons Justice Sotomayor indicated -- the minimal holdings, but all the mentions and the holding go in the direction of this existed.
It was relied on, it wasn't contested--
Justice Samuel Alito: I -- I don't see how the question can be whether there was a change in Michigan law, because we can't second-guess the Michigan Supreme Court about what Michigan law was.
Michigan law is whatever the State supreme court says it was.
We might agree, we might disagree.
So I think we have to start from the proposition that the law didn't change, because that's what the Michigan Supreme Court said.
So there must be some other ex post facto principle that applies when there's a certain type of unfairness.
And I wonder if you could articulate what that principle is.
Kenneth M. Mogill: --I would be happy to, Justice Alito, but first I want to address your point about having to rely on Michigan Supreme Court's determination of Michigan law, because this Court has made it very clear that you can't let a State court relabel something in a way that avoids Federal constitutional review.
Chief Justice Rehnquist spoke to that point in Collins v. Youngblood.
Justice Kennedy, you spoke to that in your dissent in Clark.
Justice Scalia, in your dissent in Rogers, you spoke to the point, I think, in an apt phrasing, that this Court will rely on a State court's reasonable determination of State law.
Chief Justice John G. Roberts: So two -- two dissents is what you're relying on?
Kenneth M. Mogill: --I'm sorry?
The majority -- the opinion of the Court in Collins, but it's also a well-established principle, and I also wanted to note that the two other mentions, but it's not a principle that's been in dispute.
The -- the Court's analysis in both Bouie and Rogers also supports what I'm saying, because the Court independently looked at South Carolina law in Bouie.
The Court independently looked at Tennessee law in Rogers and--
Justice Samuel Alito: Well, I think you're -- what you're arguing is that under certain -- in evaluating certain constitutional claims, the -- the question of what State law is is not dispositive.
I don't think you're arguing that a Federal court has a right to tell a State court what State law is.
Kenneth M. Mogill: --This Court certainly does not have a right to tell the Michigan Supreme Court going forward what State law is with respect to diminished capacity.
Justice Samuel Alito: Well, I mean, suppose this were a diversity case.
Can -- can a Federal court say, you know, we -- we think that the -- the decisions of the intermediate State supreme court were correct and this new decision by the State supreme court is incorrect, so we're not going to follow that?
Kenneth M. Mogill: --No.
But this is not -- that's not this case.
This case involves reliance--
Justice Samuel Alito: It's not -- it's not this case, because there, you're trying to figure out what State law is.
Here you're applying a constitutional principle.
Kenneth M. Mogill: --We're trying -- we're applying a constitutional principle--
Justice Samuel Alito: So what is that -- that gets me to the second part of my question.
Kenneth M. Mogill: --Yes, exactly.
Justice Samuel Alito: What is the -- the constitutional principle that doesn't depend on what State law was?
Kenneth M. Mogill: The constitutional principle is that Respondent had a right to present a defense that existed at the time of his offense, unless it was clearly unforeseeable -- excuse me -- unless it was unforeseeable and -- and indefensible by reference to law that had been expressed prior to the time of the conduct, that that law might change, which we don't have here.
And Justice Breyer, I think that the phrasing also goes to respond to your question.
The -- the formulation in -- in Rogers that confines looking to the law as of the time that the conduct occurred, and -- and even if you go forward, there was nothing to suggest an alternate interpretation of the statute, a questioning opinion, nothing that would suggest that the law in Michigan was about to change.
We also have the fact that, unlike the year-and-a-day rule, diminished capacity as -- as a doctrine is well-supported and increasingly supported by medical and mental health evidence.
It's the -- the exact opposite of the year-and-a-day rule in that regard.
It also furthers--
Justice Samuel Alito: This is -- this is the due process issue, right?
Kenneth M. Mogill: --It's -- that's exactly--
Justice Samuel Alito: So why is it unfair?
Why is there an entitlement under due process to assert what appears under the law of the State's intermediate court decisions to be a valid defense, but is later determined never to have been or not to have been at the time a valid defense?
What is the unfairness involved there?
Kenneth M. Mogill: --The unfairness is because it was sufficiently well-established, it was thoroughly well-established as a matter of Michigan law, so Respondent and everybody else in Michigan had a right to rely on it.
In fact, if this Court were to reverse the Sixth Circuit, Respondent would be the only person in Michigan charged with a crime prior to Carpenter who would not be allowed to present a diminished capacity defense at a fair trial.
That's how extreme the violation was.
Justice Stephen G. Breyer: The alternative is you are going to allow the bar associations, helpful as they are, by writing instructions to determine issues that courts themselves have never determined, or at least not authoritative supreme courts.
And that's a worrying matter where you are trying to create coherent systems of law.
Kenneth M. Mogill: If I can briefly -- quickly respond, Justice Breyer, the -- I disagree that we're -- that I'm in any way suggesting turning anything over to the Bar Association.
The fact of that instruction is I think strong evidence of the reasonableness of reliance of the bench and bar in Michigan, but not looking to turn authority over to anybody.
Chief Justice John G. Roberts: Thank you, counsel.
Kenneth M. Mogill: Thank you very much.
Chief Justice John G. Roberts: Mr. Bursch, you have 13 minutes remaining.
REBUTTAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER
John J. Bursch: Thank you, Mr. Chief Justice.
I -- I think we actually have a lot of areas of agreement after 45 minutes of oral argument.
Number one, Justice Breyer, is that there really is only one case in Michigan that reaches the holding that Mr. Carpenter would like that you can assert this defense, and that was the Lynch case in 1973, which preceded the 1975 statute.
So under well-established Michigan law, again, you know, In re Lamphier, Reese, which was their 2012 decision reapplying In re Lamphier, that code occupies the field, and at that point, the common law decision no longer existed.
Justice Antonin Scalia: I think he contested that.
I think he never went further into it, but he seemed to disagree with the proposition that where there is a Michigan statute it can't be supplemented by the common law.
John J. Bursch: I did not hear him say that.
And if you go back and you read Reese and In re Lamphier, I don't know how anyone could possibly disagree with that.
There are certainly areas--
Chief Justice John G. Roberts: I hate just to interrupt you.
John J. Bursch: --Sure.
Chief Justice John G. Roberts: He did challenge my premise when I presented that to him.
John J. Bursch: Okay.
Chief Justice John G. Roberts: So I do think he disagrees with it.
John J. Bursch: Well, then I disagree with that.
If you look at In re Lamphier and Reese, it's well-settled in Michigan that when the Michigan legislature speaks to a particular subject matter in criminal law that the code controls and the common law cannot supplement it.
The words of the Michigan Supreme Court in Reese itself were:
"The courts have no power to add an affirmative defense that the legislature did not create. "
And -- and I really don't think there can be a dispute about that.
Justice Ruth Bader Ginsburg: Is this -- is this a one of a kind, in that, whatever the law was, it's clear from 2001 on?
Are -- are there any other people who were similarly situated, who committed a crime before 2001 but were tried after?
John J. Bursch: I'm -- I'm not aware of any, Justice Ginsburg, and -- and the reason for that -- that quirk is because his habeas process by coincidence happened to take such a long time.
It's pretty rare that we're up here on a case where the murder actually took place 20 years ago and the trial is shortly after that.
But -- but quirks in how long litigation happens don't determine whether the people get the benefit of changes in law or not.
What matters is the standard that this Court applied in Rogers and Bouie, was the change -- if there was a change -- indefensible and not expected.
Justice Elena Kagan: But was there anyone prior to 2001 who couldn't raise a defense like this, who was precluded from doing so because a court thought, oh, you know, the -- the statute really clears the field, and -- and this defense is not available?
Was it -- can you point to anything?
John J. Bursch: We can't point to anything, just like they can't point to anything.
You've got a -- you know, in 1975--
Justice Elena Kagan: I guess they can point to just a lot of people who were raising this defense.
John J. Bursch: --Right.
And they can point to cases that assume without deciding that the defense might exist.
And then it wasn't until 2001, when the Michigan Supreme Court became the first Michigan court to look at it -- and I forget now who mentioned this; I think it was Justice Kennedy -- that the Michigan Supreme Court did what this Court often does: It waited for the right case to present itself.
And when it did, it applied the plain statutory language in accordance with Michigan interpretive law.
Justice Ruth Bader Ginsburg: Why -- why was it--
Justice Elena Kagan: This is -- I'm sorry.
Justice Ruth Bader Ginsburg: --why was it the right case?
The parties didn't even raise it, did they?
John J. Bursch: Well, you know, it could be because the Michigan Supreme Court thought, you know, there's enough confusion, because of the mentions in the lower court, that it's time that -- that we address this.
I don't know why the Michigan Supreme Court took it up in Carpenter.
What I do know is that fair-minded jurists, which is the habeas standard, could agree that Carpenter was neither indefensible nor unexpected.
And, you know, it's not a head-counting business, but I would note that the Michigan Court of Appeals here was unanimous.
Previously, the Michigan Court of Appeals in Talton, decided the year after Carpenter, reached the exact same conclusion with respect to the due process question.
So we've got six Michigan appellate judges looking at this.
You know, going back to -- to what the Michigan law said, I -- I also heard my friend mention the Griffin case.
This is the three-paragraph order where they -- they remand for ineffective assistance.
Well, Griffin is one of the cases that the Michigan Supreme Court discusses in Carpenter, and in the very next sentence, the Supreme Court says:
"However, we have never specifically authorized the defense's use in Michigan courts. "
You know, it just wasn't there.
What you have are these mentions, and then, as Justice Breyer mentioned, he's got jury instructions which are promulgated by the State bar, not the State supreme court, or by any court for that matter.
And what you have to ask yourself, is it objectively unreasonable, is it beyond any possibility of fair-minded disagreement that a Michigan Court of Appeals panel could conclude that Carpenter was both indefensible and unexpected.
Justice Stephen G. Breyer: Do you have any idea, a rough estimate, how many cases there were between, say, '75 and '93 where this defense was raised?
John J. Bursch: --Well, all we have are the mentions in the appellate courts.
Justice Stephen G. Breyer: You do know about how many?
John J. Bursch: About 37, I believe.
It was four Michigan Supreme Court opinions and 33 Court of Appeals.
So it was 37.
Now, of those the Michigan Supreme Court itself said their four decisions didn't say one way or the other.
Of the other 33, 32 of them weren't even binding in other Michigan Court of Appeals panels.
As we explained in our brief, the Michigan Court of Appeals wasn't bound to follow any panel decision prior to November 1st, 1990.
So those weren't even binding on the court of appeals itself.
If you are thinking about what's firmly established, you know, there were no roots at all to these mentions.
It would be like walking past your neighbor's yard, and if there is an oak tree there, you expect it to be there the next day.
You know, but if there is a small weed, you expect it to be pulled up and rooted out.
And that's exactly what happened here when the Michigan Supreme Court finally addressed the question.
Justice Antonin Scalia: You -- you rely on Reese as establishing the principle that you cannot supplement the defenses in a criminal statute, but Reese was a 2012 case.
John J. Bursch: Right.
I mentioned Reese because it's the most recent application.
It cites In re Lamphier, which is an 1886 decision, which itself references the 1810 Territorial Act which abolished common law criminal principles -- if you have the statute--
Justice Elena Kagan: Do you have something like in the middle?
John J. Bursch: --There are many cases in the middle.
There is at least a 1990 case, although I can't recall the name.
If you just key cite or shepherdize In re Lamphier, you -- you will find scores of cases that rely on this proposition.
It's -- it's not in dispute.
Justice Sonia Sotomayor: I'm sorry.
Then you were arguing that Lynch was wrong to begin with, because what you are arguing is that it created a common law defense that the courts say you can't under Michigan law.
John J. Bursch: Right.
You've got Lynch, which was the common law.
Justice Sonia Sotomayor: No, no, but you're saying to me it was wrongly decided under this general Michigan--
John J. Bursch: Oh, no, no, no.
To be perfectly clear, what In re Lamphier and Reese and everything else say is that when the legislature has spoken to a particular area, then the courts cannot supplement.
They had never spoken about mental capacity defenses prior to 1975, and so the slate was free for the courts to do what they wanted.
So there's nothing wrong with Lynch in '73.
The problem is continuing to assume that there was a defense that wasn't in the '75 statute.
Chief Justice John G. Roberts: If you were representing a defendant in this position, you certainly would have raised the diminished capacity defense prior to Carpenter, wouldn't you?
John J. Bursch: Undoubtedly.
But I don't think it means that fair-minded jurists could not possibly conclude that Carpenter was both indefensible and not expected.
Justice Elena Kagan: And if you were a prosecutor, you would not have objected to that defense, would you have?
John J. Bursch: Well, I don't know.
If I was a prosecutor, I would have looked at the plain language of the statute--
Justice Elena Kagan: Do you have any--
John J. Bursch: --and I probably would have--
Justice Elena Kagan: --have any reason to think that any prosecutor ever objected to such a defense?
John J. Bursch: --I don't know one way or the other.
We -- we just don't have the data for that.
So ultimately, what we are talking about here--
Justice Antonin Scalia: I assume you'd need a case in which the prosecutor was pretty, pretty clear that a diminished capacity defense would prevail.
Otherwise, it wouldn't -- the game wouldn't be worth the camel, right?
John J. Bursch: --That's exactly right.
Justice Stephen G. Breyer: --But what's in the 37 cases then?
I -- they got up there.
I assume the defendant must have brought them.
They must have brought them.
He must have wanted to -- to raise the defense and somebody said no.
John J. Bursch: No, I don't believe that there was a single case in those 37 where someone tried to raise the defense and the court said no.
Nor was there a case where the prosecutor said you can't raise the defense and the court said yes.
It was just a number of cases.
And, you know, Mangiapane is really the paradigm example.
Justice Stephen G. Breyer: Yeah.
John J. Bursch: But the question was, did they give notice?
If the defense exists, is it part of the statute?
And -- and all the Michigan courts agree that that has to be the case.
But it's not till Carpenter where the court finally says, is it part of the statute and says no.
Justice Elena Kagan: Just to go back to Justice Breyer's question.
I mean, there may be no way you can answer this, but are we talking about, you know, do five people a year -- did five people a year raise this or -- or 20 or 100?
I mean, what kind of numbers?
John J. Bursch: You know, all we've got are the appellate decisions referencing it.
Justice Elena Kagan: Right.
John J. Bursch: So if we've got 37 cases--
Justice Elena Kagan: You can't really tell because nobody was objecting to anything--
John J. Bursch: --Correct.
Justice Elena Kagan: --right?
John J. Bursch: So you've got 37 cases over a course of 18 years, '75 to -- to '93.
Now, that -- that tells us maybe two cases a year in a system that processes thousands of criminal cases.
You know, there was nothing here that would make the Supreme Court's application of the plain language so indefensible, so unexpected that no reasonable jurist could possibly have reached the same conclusion as now two unanimous Michigan Court of Appeals panels have.
I wanted to touch briefly on the unfairness point.
And Justice Ginsburg, I -- I believe brought up Bouie.
And Bouie is really the perfect analogy, because, again, under the AEDPA standard, it's Lancaster's burden to show that the court of appeals decision here was contrary to our misapplication.
And, to the contrary, it was the exact application of Bouie.
In Bouie, you had a clear statute that was very narrow, and the State court expanded it in a very unexpected way.
And this Court found that was indefensible and unexpected.
The exact opposite happened here.
You had the Michigan Supreme Court applying very narrow statutory language exactly the way it was written in accord with 200 years of interpretive principles.
So -- so really, the problem here is not any unfairness, the problem is the Sixth Circuit yet again not applying habeas deference under the statute or this Court's precedent and disregarding another Michigan State court decision where reasonable jurists could have reached different conclusions on this.
It's not our burden to -- to demonstrate what the law was or wasn't.
All we have to show is that a reasonable jurist could have reached the conclusion the Michigan Court of Appeals did here, and there doesn't appear to be any question that's the case.
Justice Antonin Scalia: You want us to say “ yet again ” when we write our opinion?
John J. Bursch: Yes, Justice Scalia.
If there are no further questions, thank you very much.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Ginsburg has our opinion this morning in case 12-547, Metrich versus Lancaster.
Justice Ruth Bader Ginsburg: Respondent Burt Lancaster is a former police officer with a long history of severe mental-health problems.
In April 1993, he shot and killed his girlfriend in the parking lot of a shopping-plaza.
Lancaster was convicted in Michigan state court of first-degree murder and a related firearm offense.
At the time of the shooting, the Michigan Court of Appeals, which is Michigan's intermediate appellate court, had repeatedly approved the defense of diminished-capacity.
The defendant invoking that defense would present the evidence of his mental illness, not to establish that he was legally insane, but instead to suggest that he lacked the specific intent, the mens rea, required to find the defendant guilty of the crime with which he was charged. By the time of Lancaster's 2005 trial, however, in a case decided in 2001, People v. Carpenter, the Michigan Supreme Court had rejected the diminished-capacity defense.
Michigan's Legislature, the Michigan Supreme Court held, had foreclosed use of the defense by failing to incorporate it into the state's comprehensive statutory scheme, codified in 1975, governing mental illness defenses.
Based on Carpenter's holding, the judge presiding at Lancaster's trial barred him from asserting a diminished-capacity defense.
The Michigan Court of Appeals affirmed, rejecting Lancaster's argument that the trial court's retroactive application of Carpenter violated due process.
After the Michigan Supreme Court declined review, Lancaster reasserted his due process claim in a federal habeas petition.
The District Court denied the petition, but a divided the panel of the United States Court of Appeals for the Sixth Circuit reversed.
The Michigan high court's decision in Carpenter was unforeseeable, the Sixth Circuit majority concluded, for three reasons: First, as previously mentioned the Michigan Court of Appeals had consistently approved the diminished-capacity defense.
Second, before Carpenter, the Michigan Supreme Court had several times mentioned the defense without casting a shadow of doubt on it.
Finally, the Michigan State Bar had included the defense in its pattern jury instructions.
These considerations persuaded the Sixth Circuit majority that by rejecting Lancaster's due process claim, the Michigan Court of Appeals had unreasonably applied clearly established federal law.
The Sixth Circuit, therefore, ruled that Lancaster was entitled to a new trial at which he could present his diminished-capacity defense.
We granted review and now reverse.
Lancaster's habeas claim is subject to the demanding standards set by the Antiterrorism and Effective Death Penalty Act of 1996.
Under that standard, Lancaster may gain relief only if the state court decision he assails unreasonably applied clearly established federal law as determined by this Court.
Lancaster has not satisfied that exacting standard.
When the judiciary alters a common law doctrine of criminal law, we have held, the Due Process Clause prohibits retroactive application of the alteration only if the rule change is unexpected and indefensible by reference to the law expressed prior to the conduct at issue.
In Carpenter, the Michigan Supreme Court, for the first time, squarely addressed the validity of the diminished-capacity defense.
Rejecting several lower court decisions that had approved the defense Michigan's high court rested its judgment on a reasonable interpretation of controlling statutory language.
This Court has never found a due process violation in circumstances even remotely resembling Lancaster's case.
Fair-minded jurist, no doubt, could conclude that the decision of the Michigan Supreme Court -- the decisions of that Court reached in Carpenter was not unexpected nor was it indefensible.
Lancaster, therefore, is not entitled to federal habeas relief.
The Court's decision is unanimous.