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The V&E Report
Insights in Government Enforcement and Investigations

  • 02
  • October
  • 2019

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New SCOTUS Term Tackles Big Criminal Law Issues: Unanimous Juries, the Insanity Defense, and Public Corruption

On Monday, the Supreme Court begins a new term with several note-worthy criminal cases on its docket. The justices will be weighing constitutional and statutory questions that could have big consequences for future defendants and targets of government investigations. Below, we highlight three cases worth watching.

Insanity Defense

Kahler v. Kansas, No. 18-6135

Status: Argument on October 7, 2019

Issue: Do the Eighth and Fourteenth Amendments to the Constitution prohibit states from abolishing the common law insanity defense?

Commentary: In a case steeped in moral, philosophical, and religious questions, the Court is asked to determine whether the Eighth Amendment, incorporated against the states by the Fourteenth Amendment, prohibits the states from abolishing the common law defense of insanity in criminal cases.

Kraig Kahler was charged and convicted of capital and first degree murder for killing his wife and three of his children. Kahler contends that he was not in his right mind at the time of the killing, as he had been experiencing extreme depression, obsessive compulsions, and dissociative episodes. The jury, appeals court, and Kansas Supreme Court rejected Kahler’s insanity defense, finding that his insanity evidence did not negate his mens rea (intent) to commit the crimes.

Previously, Kansas had applied the so-called M’Naghten rule, a common law rule under which a defendant is excused from criminal responsibility where either he does not know the nature and quality of his wrongful act or he does not know right from wrong with respect to the act. The rule takes its name from a famous English case, in 1843, in which Daniel M’Naghten tried to shoot the English Prime Minister, but missed and killed his secretary, and was then later acquitted by reason of insanity. Numerous jurisdictions, including many states in the U.S. retain the M’Naghten rule in its original or some modified form. Kansas, and several other states, have limited the insanity defense in recent years. The current Kansas statute allows the defense of insanity only insofar as the “defendant, as a result of a mental disease or defect, lacked the mental state required as an element of the offense charged.” Kan. Stat. Ann § 22-3220 (2009). In other words, insanity is only a defense where it negates the element of mens rea that is required to prove a particular crime.

For the Due Process Clause to protect a right, it must be a “principle[] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 202 (1977). The parties spar over just how rooted in the common law, and therefore the traditions and conscience of our people, the M’Naghten rule, or some similar insanity defense, really is. Both parties cite the teachings of Plato, Edward Coke, and William Blackstone–arguing that their approach, Kansas’s mens rea approach versus Kahler’s M’Naghten approach, respectively, as the approach most historically rooted in the development of the common law.

It is likely, however, that Kahler’s path to victory treads a steep slope. The Court ruled as recently as 2006 that a state may limit the use of expert evidence regarding a defendant’s mental state when making an insanity defense, holding that “no particular formulation has evolved into a baseline for due process, and that the insanity rule . . . is substantially open to state choice.” Clark v. Arizona, 548 U.S. 735, 752 (2006). Given the backdrop, Kahler must show that a strictly mens rea approach falls below any baseline standard of justice or fairness.

Right to Unanimous Jury Verdict

Ramos v. Louisiana, No. 18-5924

Status: Argument on October 7, 2019

Issue: Whether the Sixth Amendment is fully incorporated by the Fourteenth Amendment and therefore requires states to require unanimous guilty verdicts for convictions in criminal jury trials.

Commentary: The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury.” This case seeks to resolve a precarious issue that has existed since a divided opinion was issued in Apodaca v. Oregon in 1972: whether the Fourteenth Amendment fully incorporates the rights guaranteed in the Sixth Amendment against the states.

Apodaca was a case that generated no majority opinion. The petitioners were criminal defendants convicted by non-unanimous jury verdicts in Oregon. The petitioners argued that the Sixth Amendment requires unanimous jury verdicts for criminal defendants, and that the Fourteenth Amendment incorporated this requirement and applied it to the states, making this portion of the Oregon Constitution invalid. The Court split 4-1-4. The plurality opinion wrote that the Sixth Amendment did not require unanimous jury verdicts in criminal cases, and so state courts need not require unanimous verdicts either. The dissent took the opposite approach, arguing that the Sixth Amendment does require unanimous jury verdicts, and that the Fourteenth Amendment incorporates this requirement against the states. Justice Powell, concurring separately, concluded that the Sixth Amendment does require unanimous jury verdicts, but that this requirement is not incorporated against the states, so they may allow non-unanimous guilty verdicts. Because Justice Powell’s concurrence gave a fifth vote to the view that state jury verdicts need not be unanimous, this became the law.

Ramos was convicted of murder in Louisiana state court, by a 10-2 jury verdict. He has appealed the conviction, asking the Court to reopen the questions raised in Apodaca. Louisiana, for its part, has adopted the argument of the Apodaca plurality, that the Sixth Amendment does not require unanimity, and so there is no standard to be incorporated against the states. Ramos points out that Powell’s fifth vote for the view that the Sixth Amendment requires a unanimous verdict in federal jury trials is now Court precedent; and he is likely correct. The Supreme Court has subsequently held in numerous cases (see e.g., Descamps v. United States, 570 U.S. 254, 269 (2013)) that the Sixth Amendment requires unanimous guilty verdicts in Federal courts–so the real question is whether the Fourteenth Amendment only partially incorporated the Sixth Amendment to the states, or whether it did so completely. But the Supreme Court’s recent decisions in McDonald v. City of Chicago and Timbs v. Indiana, show the Court’s increasing reluctance to differentiate between rights guaranteed in the Bill of Rights and the Fourteenth Amendment, and increasingly disposed to rule that “if a Bill of Rights protection is incorporated” against the states, “there is no daylight between the federal and state conduct it prohibits or requires.” Timbs v. Indiana, 139 S. Ct. 682, 687 & n.1 (2019) (quoting McDonald v. City of Chicago, 561 U.S. 742, 766 n.14 (2010). If the Court follows this trend here, it may be a lopsided decision, and good news for Mr. Ramos.

Government Corruption

Kelly v. United States, No. 18-1059

Status: Argument not yet scheduled.

Issue: Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

Commentary: “Time for some traffic problems in Fort Lee.” So wrote Bridget Kelly, the petitioner in Kelly v. United States and the former deputy chief of staff to New Jersey Governor Chris Christie, shortly before she and her co-conspirators launched a scheme to change the traffic pattern on the George Washington Bridge in order to punish the mayor of Fort Lee, New Jersey, after he did not endorse Mr. Christie’s reelection campaign. After Kelly sent this email to William E. Baroni, Jr. the Deputy Executive Director of the Port Authority of New York and New Jersey, Baroni caused the Port Authority to realign the traffic lanes from Fort Lee, New Jersey into Manhattan, creating a “crippling gridlock” in Fort Lee. The stated purpose of the lane realignment was to produce data for a traffic-study, but the actual reason, as was later revealed by Baroni’s chief of staff, was to retaliate against Fort Lee’s mayor.

For their roles in this scheme, Kelly and Baroni were each indicted for wire fraud, civil rights violations, and conspiracy, and were convicted on all counts after a jury trial. On appeal, the Third Circuit upheld the convictions.

The question before the Supreme Court is whether a government official, performing activities they are permitted to perform, commits fraud if the proffered reason for undertaking these activities differs from the actual reason. There is no question that Baroni, as Deputy Executive Director of the Port Authority, had the authority to realign traffic lanes on the bridge. But the reason he gave for doing so was a lie. The fraud statute prosecutors relied upon requires that the defendant knowingly convert, misapply or obtain by fraud any property of an organization receiving federal benefits. The prosecutors’ theory of the case was that the traffic lanes, toll booths, and value of government workers’ time administering the traffic scheme were all government property, and that Baroni’s lie in order to allocate these resources amounted to fraud.

The petitioner argues that, while these actions were untoward, they do not rise to the level of criminal malfeasance. In so arguing, she attempts to draw a line to a number of cases in which the Supreme Court has narrowed prosecutors’ use of fraud statutes to address public corruption. Most recently, in McDonnell v. United States, the Court ruled that the former Governor of Virginia accepting payment to set up a meeting, hold an event, or speak to another official were not violations of the federal bribery statute because none of these events constituted an “official act” under the statute. The petitioner seeks to frame her case in a similar light–arguing that because Baroni could have legitimately altered the lanes for the purpose of a traffic study, it does not matter that his actual reasons were political. Moreover, Kelly argues, politicians routinely undertake actions designed to benefit certain segments of the electorate, while offering benign or contradictory reasons for doing so. Categorizing such routine pandering and political actions as fraud would open nearly every statement of every public official to potential criminal liability.

McDonnell was a unanimous decision. If Kelly can successfully persuade the court that Kelly and Baroni’s actions, though unseemly, were not flagrantly outside routine political give-and-take, she may find a sympathetic court.

The V&E Report will monitor these cases and update our readers when the Court issues its opinions. Stay tuned.

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Authors

Jennifer S. Freel

Jennifer S. Freel Counsel

Casey Downing

Casey Downing Associate