Tuesday, January 3, 2006
Court: Jurors Must Unanimously Reject Insanity Defense to Convict
By DAVID WATSON, Staff Writer
A criminal defendant who claims insanity cannot be convicted if jurors disagree about whether he or she is sane, the Ninth U.S. Circuit Court of Appeals ruled Friday.
Judge Alex Kozinski, writing for a three-judge panel, said neither the U.S. Supreme Court nor, as far as the panel could tell, any other federal court had previously ruled on the issue of whether unanimity is required for a jury to reject an affirmative defense in a criminal prosecution.
“Although some members of the Supreme Court have expressed opposing views, none commanded a majority of the Court,” Kozinski commented.
He noted that in 1990 Justice Antonin Scalia, in a dissent joined by then-Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, said that a jury “that has considered but not unanimously found an affirmative defense must return a verdict of guilty.” But Justice Harry A. Blackmun’s concurring opinion in the case, McKoy v. North Carolina, 494 U.S. 433, chided the dissenters for presuming that where the elements of an offense have been proven, a jury’s failure to agree about an affirmative defense should result in a conviction.
“[O]ur cases do not say that, and it is not at all clear that a conviction, rather than a hung jury, would be the outcome,” Blackmun wrote.
Kozinksi said that state courts considering the question, as well as both state and federal courts discussing affirmative defenses in civil cases, have uniformly reached the conclusion that unanimity with regard to rejection of an affirmative defense is required.
“If a juror finds that the government has proven each element of the offense beyond a reasonable doubt, and also finds that the defendant has not proven insanity by clear and convincing evidence, he must find the defendant guilty,” Kozinski reasoned. “If another juror finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven insanity by clear and convincing evidence, he must find the defendant not guilty by reason of insanity. Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury.”
The defendant in the case, Kenneth Southwell, was accused of starting a fire at a company in Fairfield, Wash. and charged with malicious use of a fire to damage property used in interstate commerce. He pled not guilty and, alternatively, not guilty by reason of insanity.
On the second day of deliberations, jurors sent then-Chief U.S. District Judge Fred L. Van Sickle of the Eastern District of Washington a note asking whether they could return a guilty verdict even though they were not in agreement about Southwell’s sanity. Van Sickle responded that they should rely on his previous instructions, which told them they had three verdict options: guilty, not guilty, and not guilty only by reason of insanity.
Those instructions said the guilty verdict was appropriate if jurors unanimously found each element of the offense proven beyond a reasonable doubt, and that a not guilty by reason of insanity verdict should be returned only if jurors unanimously agreed both that the elements of the offense had been established and “that the defendant has shown by clear and convincing evidence that he was insane as defined in these instructions.”
The next day the jury returned a guilty verdict.
Van Sickle’s instructions “were not a model of clarity,” Kozinski commented, adding in a footnote that they “failed to explain that a finding of not guilty by reason of insanity would supersede [the jury’s] finding of guilt.”
It was not necessary for the appellate panel to address the adequacy of the instructions themselves, Kozinski said, since Van Sickle’s response to the jurors’ query was inadequate.
The trial judge compounded the error, Kozinski said, by rejecting the defense request that jurors be polled on the insanity issue.
“The jurors asked the court whether they could convict Southwell if they were unanimous on guilt but divided as to sanity. For the reasons explained, the correct answer was ‘no.’ The district court’s failure to answer the jury’s question left open the possibility that they convicted Southwell even though they were divided as to sanity. Here, this is more than a theoretical possibility, because we can infer from the jury’s note that that’s where it stood at the time. It’s possible, of course, that, after further deliberations, the jury did reach unanimity on the question of sanity. But nothing in the court’s instructions required them to do so. It is therefore entirely possible that the jury, faced with instructions that left the issue open, interpreted them as permitting a guilty verdict even though they were not unanimous as to sanity. In these circumstances, we cannot say that the error was harmless beyond a reasonable doubt.”
Judge Andrew J. Kleinfeld and Senior Judge Arthur L. AlarcÛn joined in the opinion authored by Kozinski.
The case is United States v. Southwell, 04-30521.
Copyright 2006, Metropolitan News Company