-: SJC-13445, Commonwealth v. Jean Rezac.
-: Alright, Attorney Warren, whenever you are ready.
-: Good morning, and may it please the court,
John Warren on behalf of Jean Rezac,
who is present with me here, today, in the courtroom.
This case raises fundamental questions
about culpability and punishment.
It's about people with a mental illness
that is so severe that they're unable
to appreciate the moral wrongfulness of their conduct.
Whether our society, through the common law in Massachusetts
says that those people are culpable, are they blameworthy?
And is it right to punish those people?
-: Isn't really it about whether or not it's
substantial capacity to appreciate the criminality
or wrongfulness, or criminality and wrongfulness,
and that whatever you think of Goudreau,
the 2018 homicide instructions, made clear which one it is?
-: I think, it is, that is the question, Your Honor.
Is it both of these things, criminal appreciation
and moral appreciation, or can it be one or the other?
I think that's the question.
And I think when you look at the Goudreau instructions
that they're ambiguous, because in one sense,
it's saying it could be, it's an or.
-: But what I'm saying is I'm not sure they're ambiguous.
Although I realize that we say different things
at different points in the, but it was before 2018
and the homicide instructions clearly say,
or, which is how I always instructed on it,
because that's what I thought it was,
and that's what the two, not that that matters,
but that's what the 2000 homicide instructions say.
-: And I think, but I think there's an ambiguity in Goudreau-
-: Not in the Model Penal Code, which it's based on, right?
-: The Model Penal Code- Judge: It's brackets.
-: Brackets, right Your Honor, and-
-: Which gives you the option. John: Right
-: And some jurisdictions as we've adopted the MPC,
sometimes we've said, we've said both.
We've said moral and we said criminality.
John: Exactly. -: And we've said or, right?
-: So I think there is that ambiguity,
and I think the Model Penal Code,
it did have those brackets.
-: And then the model penal code,
they basically say it doesn't matter.
They're usually the same thing.
-: And that's the point that the dissent
in the Supreme Court made in the Kahler case,
a few years ago to say, oftentimes we're talking about
overlapping, these concepts are overlapping,
criminal and moral.
They often are overlapping.
-: Right, 'cause if it's so immoral, it's usually criminal.
-: Right, I think, and I think the evidence would be similar,
but I don't think they're the same.
And I think the distinction is important,
and that it's important for fact-finders
to be instructed on both,
and have to make a decision on both.
-: Are you talking about like, the command delusion paradigm?
-: That's one example.
-: Then why is it significant in this case?
Or, if that's just one example.
-: So I think it's significant in this case,
well, I think it's significant
and I think there's, when the Colorado Supreme Court
decided this specific issue in 1992,
I think their framing was, made a lot of sense to me,
in the way-
-: Was that Colorado case an MPC case,
or is it a McCool case?
I mean a, not McCool case, a right and wrong case?
-: So the, the Colorado case considered this exact question
and said that-
-: In a context of the MPC?
-: I don't know.
-: That's actually really important.
-: Yeah, right.
And also whether or not were conformed the conduct
to the requirements that the law is present in Colorado.
Judge: Right.
-: I don't have the answer to that question,
but if I could read this passage,
because I think it gets to the reasoning
why this court should include that moral component.
-: But you, the Justice Gaziano's question is,
why does it matter here?
That's, I'm really interested to hear the answer
to this question.
-: Right, and I think this frames it-
Judge: On the facts.
-: Oh, on the facts.
So turning to the facts, we have an interesting case here
because we have these two doctors
who are saying, they're using their language carefully,
and they're saying that during the attack
there was no moral appreciation.
But then during this 9-1-1 call,
there was a criminal appreciation.
And their language tracks those two sort of scenarios.
This was an episode that happened within minutes
of each other, within minutes of each other.
Someone who's severely mentally ill, clearly,
both doctors testified to that.
And I think the records from the hospital support that.
And what I would suggest is there was no
sort of break in clarity during,
within a few minutes there was no break in clarity,
where all of a sudden she gained this moral appreciation.
What I suggest Judge Sullivan was looking at was
what to do with the fact
that the 9-1-1 call incident showed
some sort of a criminal awareness.
That's what I think Judge Sullivan was wrestling with.
What do I do with that fact?
Because it does show perhaps,
that she knew that the police were coming.
And I think the danger is that that gets fact-finders a way
of what the question really ought to be, which is,
is this mental illness so significant
that it's impairing someone's ability to do
that moral weighing of right versus wrong?
And that's what Justice Cardozo was-
-: Right, but what I think you're,
what you give short shrift to,
which I want to hear you or give you opportunity
to address, is the volitional prong.
Because if someone's under command delusion,
or if someone, as you just said,
can't control themselves, then they get,
then the government doesn't satisfy the volitional prong.
So when you use the right and wrong test,
which doesn't have the volitional prong,
it's apples and oranges, and frankly inapplicable.
So I want to hear under the McCool test, the MPC,
how this affects the volitional prong.
-: Well, I just think it's, it's a separate question.
I mean, these two prongs to-
-: Yeah, but what you're saying is that it's unfair
because this person is so mentally ill,
they can't control themselves.
And my answer to you is, well, perhaps then
they won't satisfy the volitional prong
and it won't be unfair.
-: Because if they know it's criminal,
but they can't get their arms around the moral implications
and deal with that in a way that's going
to allow them to be able to stop,
then you can address that issue with,
or conform the conduct to the requirements of the law.
-: And I just think it's a, I would just suggest,
it's, those two prongs is a reason we have those two prongs,
and the Commonwealth has to approve both of them.
Judge: Right.
-: And one of them is tailored towards
controlling your actions.
The other is tailored towards your understanding.
And that moral understanding
of right versus wrong is wrapped up into that.
And that's what-
-: But what we've given you, the MPC says,
it could be either/or, or it could be and,
it depends on how the common law has treated it.
And perhaps this court has not been
as clear as it should be.
'Cause we've said, we've used it interchangeably.
Sometimes we say it's wrong, sometimes we say it's criminal.
-: But to this court's credit,
it's never confronted the issue head on.
-: Oh, no, you're right.
But, but when you raise the issue
and say this is a matter of unfairness
because someone who's harboring under these delusional,
command delusions, you have to strike
your child because God is commanding it,
you know it's illegal, but you think it's moral, right?
So therefore government doesn't prove
the morality part of it.
But then you get into the volitional prong
and then they say they couldn't stop themselves
because they're commanded by this deity.
-: I do think the question's slightly different
because it's controlling your conduct.
And so I think-
-: Yeah, I can't control my conduct.
My conduct is to strike my child, and-
-: But I guess what I'm saying is you could have a situation
where you could control the conduct.
And this is, I think this is pretty much that case
because Dr. Saleh says during the attack,
she couldn't control her conduct during that one moment.
But Dr. Murray says this is not a,
there's no issue with that prong,
controlling the conduct on the this case.
-: Right, so then we have a fact-finder
who chooses between two very good experts, essentially.
-: Well, no, no, no, Your Honor.
No, because the case wasn't decided on that,
or that prong, the Commonwealth has
to prove both of these prongs.
-: Yeah, I know.
Judge: That's your argument.
-: Right, right, and well, no, I'm, to back up,
I'm talking about both prongs
of the criminal responsibility test.
Judge: Right.
-: I'm not talking about within the specific
wrongfulness.
-: Can we simplify this for a minute?
What you're talking about?
There's no issue in this case at all about
a mental disease or defect.
John: Right.
-: And the issue here is whether or not,
as it relates to the second prong,
I usually call it, I would call that the third prong
because, but let's call it the way you set it up
in your brief.
Prong one is, is there a mental disease or defect?
Part two is, and part three,
I'll skip part two for a minute,
is can you conform your conduct
to the requirements of the law?
So the way you formulated McCool,
is it appreciate the criminality
or wrongfulness of the conduct,
or criminality and wrongfulness of the conduct.
And you say it's, and, and you say it matters
because when she found not guilty
of the most serious charges,
and as it relates to the child endangerment
and the intimidation, she knows it's criminal.
That's why she takes the phone away and everything.
But to her, it's not, she doesn't appreciate the morality,
the wrongfulness of it.
So you are saying the disjunctive
or conjunctive matters in this case.
-: Exactly. -: So if that's the case,
that's the the simple issue that we're looking at.
And you're saying that, your words not mine,
you're saying we've been sort of all over the place on that.
-: Not all over the place.
I just don't think the court has dealt
with it head on in the way that other states have,
and the way that Justice Cardozo did head-on
in Schmidt in 1916, where he really tackled that question
and looked at the history of the common law
and came to the conclusion that really,
what we want to be talking about here,
is moral right versus moral wrong.
That's ultimately the most important question.
-: Well, again, was it, was that a right,
that was a right and wrong case,
it wasn't a McCool case, correct?
-: I guess I'm missing the distinction, Your Honor.
-: Because it doesn't have the volitional prong,
-: There's a safety net here in your scenario-
-: I understand.
-: That protects defendants when the Commonwealth has
to prove the case beyond a reasonable doubt,
because the Commonwealth can't just prove criminal
or wrong, it also has to prove beyond a reasonable doubt
that they lack capacity, the substantial capacity
to conform their conduct to the requirements of the law.
-: Understood, and but I think same analysis applies,
regardless of whether there's a second prong.
I think that under this prong of wrongfulness,
it is important to clarify that
we require the moral component of that.
And I think turning to why it matters in this case,
what the, I think Judge Sullivan's instruction was clear
that it was an or.
So what's, why does it matter here?
What's the prejudice here?
I mentioned that we have both these doctors using
that different language during the attack versus
during the 9-1-1 call, we have Ms. Rezac's conduct.
-: I think your remedy is clear.
I mean, you, you laid out that it goes back
to him to apply the right test, right?
-: Right, and we're not asking for-
-: If he, using our language, our fault not his,
if he misinstructed himself,
then he should have the opportunity to correct
his instructions with better guidance from this court.
-: Exactly, and I think Your Honor's question
in the prior case was interesting
because we also have a case
where a judge laid out what he was thinking.
And I think there is some danger in reading
too much into that because out of sort of respect
for the fact-finder.
So I think if this court's, wants to know
what Judge Sullivan would've done
under a different instruction, it should err on the side
of remanding it back to him.
But I do think his language of making that switch,
why that switch with Ms. Rezac towards appreciation,
his reliance on the fact of the ramifications
of the nine 9-1-1 call is really revealing
because you can sort of see how he was dealing with,
well, doesn't that show this criminal appreciation
in the sense that the police might be coming.
But again, I think that's going back to
what Justice Cardozo was talking about.
It's a different, it's slightly different question
than moral right versus moral wrong.
And if I could briefly turn to the second issue in the case,
if that's all right with Your Honor-
-: You don't have a whole lot of time to do that.
-: If there are any questions on the second issue, I suppose.
Judge: Okay, thank you so much.
-: Thank you.
-: I'm sorry, Attorney Hanson.
-: Good morning Arne Hanson for the Commonwealth,
if it pleases the court.
With respect to the criminal responsibility issue,
I don't believe there is any ambiguity.
I believe the case law is very clear.
The model jury instructions are very clear.
It uses the word or, but if you go back
and look at the seminal case,
United States versus Freeman, on page 623,
again, they use the words appreciation,
understanding of the moral or legal import of behavior.
So they use the or word as well.
That seminal case also recognized that someone might be able
to understand the criminal implications but not the moral,
and vice versa.
-: What about the way it's, we phrased it
in Commonwealth versus Dunphy with the either,
and does the either go to the first prong
or the second prong?
Is that a little confusing?
-: I think it's important to establish
that someone understood that their actions were wrong.
And there's two ways that the court
has allowed us to do that.
One by demonstrating that they understand
that the police are coming,
or two, more basic along the lines
of this is good versus evil,
-: But Dunphy cites the model homicide instructions
that have a more clear part of that-
-: But I'm not sure I understand the question.
-: No, Dunphy does cite the model homicide instructions,
which has the delineation so that it implies
that the either refers to prong two and three,
not the sub prongs, I guess, of two.
I'm talking just to Justice Lowy, I apologize, I apologize.
-: So I think it's important to look
at Commonwealth vs. Loya, and that's a recent case
out of this court from 2019,
which I think is a perfect illustration of why it's or,
and why it should remain or, and shouldn't change to and.
And now briefly, in Loya, the victim
and the defendant were coworkers in the Coast Guard.
They were good friends.
One day the victim tried to seduce the defendant,
which took the defendant aback.
He, there's no sexual contact,
but he labeled it as the rape of the mind.
The defendant was then transferred
to a different Coast Guard base.
And when he arrived there, he was reprimanded
for his actions during that incident with the victim,
which took him by surprise, which turned into anger.
Now at this point, the defendant's life deteriorated
and he blamed the victim for what ensued.
Over the next couple of years, he became depressed
and his life completely fell apart.
He became suicidal and was certainly someone
who dealt with a mental condition.
He resolved to die, but before he did so,
he would take revenge upon the person who ruined his life.
So in this case, he was certainly, from his perspective,
he certainly felt that he was morally justified.
So what he did is he went to the victim's home to kill her.
He knew that these actions were wrong
and we know that because he knew the police would come
and his plan was to die by suicide, by police officer.
Kill the victim and then get into a to shoot out
and be killed with the police.
But he needed enough time to kill the victim.
So he put his car in the middle of the road, lit it on fire,
and he set up numerous booby traps
and decoys around the house to buy himself more time.
So certainly he is, he understands
and appreciates the criminality of his actions,
but his delusions, in his eyes, he's justified.
So this is clearly someone who can distinguish
between the two prongs.
And that conviction was affirmed, illustrating the point
that it's not both, it's one or the other.
Now, if we were to change the law
and the Commonwealth would have to prove both,
it would be impossible to convict this person
because all the defendant, I understand the burden is
on the Commonwealth, but all the defendant
in his affirmative defense would have
to do is present evidence that he believed
he was morally justified.
This person ruined my life, everything fell apart.
I became suicidal as a result of their conduct.
I was justified in doing this despite
the fact that I knew it was wrong,
I cannot be convicted if the Commonwealth has to prove both.
And I think that opens a very dangerous door
because you're, by definition, when we're dealing
with criminal responsibility cases,
we're dealing with people with mental disease
and defects who have delusional and irrational thoughts.
They're going to think differently
and they're going to spurn revenge based
on something that a normal person wouldn't conceive
as a threat.
So to open the door for them to say,
"I have a mental disease or defect.
"I am suffering from depression,
"I'm bipolar schizophrenic,
"all I need to do to get away
with this crime is show that I believed
"in my delusions and therefore was justified
"in the actions, irrespective of any evidence
"that I knew was criminally wrong."
So right now, the Commonwealth can use consciousness
of guilt evidence to overcome the defense.
If you demonstrate that you took actions
to avoid capture, to say that it wasn't you,
or to diminish your role, or to cover up the crime entirely,
that can be used as evidence
to overcome the criminal responsibility defense.
That wouldn't happen anymore.
I think we would be opening Pandora's Box
if this law is changed.
I think I've made my point with regards
to criminal responsibility.
Are there any questions regarding any other portions
or further questions on criminal responsibility?
-: I guess my question is, do you think
our case law is clear that as it,
the criminality of wrong wrongfulness,
that it's clear that that's disjunctive?
-: Yes, so Freeman cites that, so what happened,
I looked at Goudreau again in preparation
for today's argument, and I think the defendant is trying
to take advantage of what I perceive,
not to be ambiguity, but the and comment comes
from page 738 of Goudreau.
There's a paragraph there that defines
what it means to appreciate.
And the first portion of that paragraph states,
"Appreciate the criminality or wrongfulness
"of his or her conduct."
So it defines the test clearly.
The second portion defines what it means to appreciate,
at which point, and I'm quoting from the case,
"Meaningful understanding and intelligent comprehension
"of the legal and moral import of his or her conduct."
What the court is doing, they use the word and there,
but I believe what the court is saying is
that it applies to both the meaningful understanding
and intelligent comprehension applies to both the legal
understanding as well as the moral understanding
of the consequences of your actions.
It's saying it applies to both of those prongs,
rather than if you use or, it might suggest it might
only apply to one or the other.
-: Because when we use, we have to be careful
because that was, that was the situation in Alemany,
'cause when we state what the government has to prove,
it switches around, right?
-: Right, I do think that the case law is clear,
and I think Loya is a perfect example of how the law works.
Because if it was both, Loya would not be convicted.