On Point: 15. Not guilty due to instanity

Kahler v. Kansas, USSC No. 18-6135, 2020 WL 1325817, 3/23/20, affirming State v. Kahler, 410 P.3d 105 (Kan. 2018); Scotusblog page (including links to briefs and commentary)

Kansas amended its insanity defense to limit to defendants whose mental illness prevents them from forming the required intent to commit a crime. A majority of the Supreme Court holds that does not violate due process.

State v. Corey R. Fugere, 2019 WI 33, 3/28/19, affirming a published court of appeals decision; case activity (including briefs)

Pretend you’re a defendant trying to decide whether to enter a plea. You know that maximum term of imprisonment you face. You also know that pleading NGI is one of your options. However, the circuit court doesn’t tell you (or perhaps misinforms you) about the nature and length of the commitment that will follow from pleading NGI. How can you make a knowing, intelligent, and voluntary NGI plea if you don’t know the consequences of it?

State v. Corey R. Fugere, 2016AP2258-CR, petition for review of a published court of appeals decision granted 9/4/18; case activity (including briefs)

Issue (composed by On Point):

When a person enters a guilty plea to a criminal charge coupled with the defense of not responsible due to mental disease or defect under § 971.15, is a circuit court required to advise the person of the maximum term of commitment under ¶ 971.17 in addition to the maximum penalties provided for the offense?

State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)

Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.

State v. James Elvin Lagrone, 2016 WI 26, 4/22/2016, affirming an unpublished court of appeals decision, majority opinion by Ziegler, dissent by A.W. Bradley (joined by Abrahamson); case activity (including briefs)

Lagrone wasn’t told he had the right to testify during the second, mental responsibility phase of his NGI trial. He alleged in his postconviction motion that he didn’t know he had any such right. The trial court denied the motion without a hearing. The supreme court now affirms that denial in an opinion that neither (1) decides whether Lagrone had a right to testify during the second phase, nor (2) explains how the denial of that right, if it exists, can be raised in postconviction proceedings.

State v. Corey R. Kucharski, 2013AP557-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)

The trial court correctly applied the elements of § 971.15, and the record supports the trial court’s finding that Kucharski failed to meet his burden of showing that he lacked mental responsibility when he killed his parents.

Review of an unpublished court of appeals decision; affirmed 2016 WI 26; case activity (including briefs)

Issues (composed by On Point)

Does a defendant have the right to testify at the mental responsibility phase of a bifurcated criminal proceeding?

If so, is an on-the-record colloquy regarding the waiver of the right to testify required?

State v. Corey R. Kucharski, 2015 WI 64, reversing an unpublished court of appeals decision; majority opinion by Crooks; dissent by Bradley (joined by Abrahamson);  case activity (including briefs)

If you thought defending a discretionary reversal in SCOW was tough before, it just got tougher. Kucharski pled “no contest” to killing his parents but claimed he was not guilty by reason of mental illness due to schizophrenia. Voices told him to commit the murders. He had not been diagnosed with schizophrenia, but 3 doctors supported his NGI defense. The State presented no witnesses, yet the circuit court found that Kucharski failed his burden of proof. The court of appeals granted a new trial in the interests of justice. In a split decision, SCOW reversed and changed the “discretionary reversal” standard.

State v. James Elvin Lagrone, 2013AP1424-CR, District 1, 4/7/15 (not recommended for publication), petition for review granted 9/9/15; affirmed 2016 WI 26; case activity (including briefs)

Does a defendant who has raised an NGI defense have the right to testify in the mental responsibility phase of the NGI proceeding? That’s the novel issue in this case. But the court of appeals doesn’t decide the question. Instead, the court ignores relevant binding case law and, relying on a case that doesn’t apply, concludes that if Lagrone had the right to testify, any error in denying it was harmless.

On review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

In granting Kucharski a new trial on the issue of mental responsiblity under the miscarriage of justice prong of § 752.35, did the court of appeals substitute its judgment for that of the trial court on issues that are within the sole province of the finder of fact, so that the appellate court’s decision conflicts with this court’s decision in State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979)?

Should a defendant be entitled to a new trial on the affirmative defense of mental disease or defect under the miscarriage of justice prong of § 752.35 where the court of appeals does not find any error or unfairness in the defendant’s trial, but determines there is a substantial probability of a different result on retrial only by substitution its judgment for that of the fact-finder on issues that are the province of the fact-finder alone?