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<v ->SJC-13445, Commonwealth v. Jean Rezac.</v>

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<v ->Alright, Attorney Warren, whenever you are ready.</v>

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<v ->Good morning, and may it please the court,</v>

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John Warren on behalf of Jean Rezac,

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who is present with me here, today, in the courtroom.

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This case raises fundamental questions

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about culpability and punishment.

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It's about people with a mental illness

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that is so severe that they're unable

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to appreciate the moral wrongfulness of their conduct.

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Whether our society, through the common law in Massachusetts

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says that those people are culpable, are they blameworthy?

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And is it right to punish those people?

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<v ->Isn't really it about whether or not it's</v>

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substantial capacity to appreciate the criminality

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or wrongfulness, or criminality and wrongfulness,

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and that whatever you think of Goudreau,

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the 2018 homicide instructions, made clear which one it is?

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<v ->I think, it is, that is the question, Your Honor.</v>

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Is it both of these things, criminal appreciation

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and moral appreciation, or can it be one or the other?

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I think that's the question.

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And I think when you look at the Goudreau instructions

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that they're ambiguous, because in one sense,

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it's saying it could be, it's an or.

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<v ->But what I'm saying is I'm not sure they're ambiguous.</v>

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Although I realize that we say different things

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at different points in the, but it was before 2018

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and the homicide instructions clearly say,

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or, which is how I always instructed on it,

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because that's what I thought it was,

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and that's what the two, not that that matters,

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but that's what the 2000 homicide instructions say.

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<v ->And I think, but I think there's an ambiguity in Goudreau-</v>

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<v ->Not in the Model Penal Code, which it's based on, right?</v>

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<v ->The Model Penal Code-</v>
<v Judge>It's brackets.</v>

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<v ->Brackets, right Your Honor, and-</v>

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<v ->Which gives you the option.</v>
<v John>Right</v>

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<v ->And some jurisdictions as we've adopted the MPC,</v>

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sometimes we've said, we've said both.

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We've said moral and we said criminality.

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<v John>Exactly.</v>
<v ->And we've said or, right?</v>

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<v ->So I think there is that ambiguity,</v>

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and I think the Model Penal Code,

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it did have those brackets.

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<v ->And then the model penal code,</v>

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they basically say it doesn't matter.

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They're usually the same thing.

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<v ->And that's the point that the dissent</v>

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in the Supreme Court made in the Kahler case,

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a few years ago to say, oftentimes we're talking about

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overlapping, these concepts are overlapping,

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criminal and moral.

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They often are overlapping.

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<v ->Right, 'cause if it's so immoral, it's usually criminal.</v>

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<v ->Right, I think, and I think the evidence would be similar,</v>

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but I don't think they're the same.

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And I think the distinction is important,

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and that it's important for fact-finders

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to be instructed on both,

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and have to make a decision on both.

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<v ->Are you talking about like, the command delusion paradigm?</v>

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<v ->That's one example.</v>

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<v ->Then why is it significant in this case?</v>

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Or, if that's just one example.

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<v ->So I think it's significant in this case,</v>

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well, I think it's significant

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and I think there's, when the Colorado Supreme Court

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decided this specific issue in 1992,

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I think their framing was, made a lot of sense to me,

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in the way-

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<v ->Was that Colorado case an MPC case,</v>

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or is it a McCool case?

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I mean a, not McCool case, a right and wrong case?

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<v ->So the, the Colorado case considered this exact question</v>

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and said that-

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<v ->In a context of the MPC?</v>

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<v ->I don't know.</v>

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<v ->That's actually really important.</v>

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<v ->Yeah, right.</v>

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And also whether or not were conformed the conduct

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to the requirements that the law is present in Colorado.

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<v Judge>Right.</v>

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<v ->I don't have the answer to that question,</v>

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but if I could read this passage,

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because I think it gets to the reasoning

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why this court should include that moral component.

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<v ->But you, the Justice Gaziano's question is,</v>

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why does it matter here?

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That's, I'm really interested to hear the answer

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to this question.

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<v ->Right, and I think this frames it-</v>

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<v Judge>On the facts.</v>

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<v ->Oh, on the facts.</v>

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So turning to the facts, we have an interesting case here

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because we have these two doctors

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who are saying, they're using their language carefully,

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and they're saying that during the attack

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there was no moral appreciation.

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But then during this 9-1-1 call,

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there was a criminal appreciation.

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And their language tracks those two sort of scenarios.

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This was an episode that happened within minutes

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of each other, within minutes of each other.

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Someone who's severely mentally ill, clearly,

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both doctors testified to that.

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And I think the records from the hospital support that.

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And what I would suggest is there was no

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sort of break in clarity during,

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within a few minutes there was no break in clarity,

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where all of a sudden she gained this moral appreciation.

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What I suggest Judge Sullivan was looking at was

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what to do with the fact

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that the 9-1-1 call incident showed

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some sort of a criminal awareness.

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That's what I think Judge Sullivan was wrestling with.

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What do I do with that fact?

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Because it does show perhaps,

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that she knew that the police were coming.

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And I think the danger is that that gets fact-finders a way

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of what the question really ought to be, which is,

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is this mental illness so significant

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that it's impairing someone's ability to do

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that moral weighing of right versus wrong?

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And that's what Justice Cardozo was-

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<v ->Right, but what I think you're,</v>

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what you give short shrift to,

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which I want to hear you or give you opportunity

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to address, is the volitional prong.

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Because if someone's under command delusion,

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or if someone, as you just said,

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can't control themselves, then they get,

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then the government doesn't satisfy the volitional prong.

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So when you use the right and wrong test,

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which doesn't have the volitional prong,

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it's apples and oranges, and frankly inapplicable.

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So I want to hear under the McCool test, the MPC,

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how this affects the volitional prong.

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<v ->Well, I just think it's, it's a separate question.</v>

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I mean, these two prongs to-

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<v ->Yeah, but what you're saying is that it's unfair</v>

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because this person is so mentally ill,

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they can't control themselves.

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And my answer to you is, well, perhaps then

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they won't satisfy the volitional prong

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and it won't be unfair.

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<v ->Because if they know it's criminal,</v>

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but they can't get their arms around the moral implications

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and deal with that in a way that's going

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to allow them to be able to stop,

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then you can address that issue with,

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or conform the conduct to the requirements of the law.

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<v ->And I just think it's a, I would just suggest,</v>

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it's, those two prongs is a reason we have those two prongs,

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and the Commonwealth has to approve both of them.

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<v Judge>Right.</v>

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<v ->And one of them is tailored towards</v>

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controlling your actions.

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The other is tailored towards your understanding.

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And that moral understanding

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of right versus wrong is wrapped up into that.

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And that's what-

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<v ->But what we've given you, the MPC says,</v>

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it could be either/or, or it could be and,

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it depends on how the common law has treated it.

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And perhaps this court has not been

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as clear as it should be.

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'Cause we've said, we've used it interchangeably.

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Sometimes we say it's wrong, sometimes we say it's criminal.

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<v ->But to this court's credit,</v>

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it's never confronted the issue head on.

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<v ->Oh, no, you're right.</v>

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But, but when you raise the issue

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and say this is a matter of unfairness

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because someone who's harboring under these delusional,

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command delusions, you have to strike

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your child because God is commanding it,

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you know it's illegal, but you think it's moral, right?

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So therefore government doesn't prove

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the morality part of it.

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But then you get into the volitional prong

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and then they say they couldn't stop themselves

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because they're commanded by this deity.

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<v ->I do think the question's slightly different</v>

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because it's controlling your conduct.

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And so I think-

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<v ->Yeah, I can't control my conduct.</v>

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My conduct is to strike my child, and-

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<v ->But I guess what I'm saying is you could have a situation</v>

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where you could control the conduct.

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And this is, I think this is pretty much that case

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because Dr. Saleh says during the attack,

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she couldn't control her conduct during that one moment.

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But Dr. Murray says this is not a,

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there's no issue with that prong,

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controlling the conduct on the this case.

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<v ->Right, so then we have a fact-finder</v>

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who chooses between two very good experts, essentially.

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<v ->Well, no, no, no, Your Honor.</v>

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No, because the case wasn't decided on that,

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or that prong, the Commonwealth has

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to prove both of these prongs.

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<v ->Yeah, I know.</v>

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<v Judge>That's your argument.</v>

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<v ->Right, right, and well, no, I'm, to back up,</v>

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I'm talking about both prongs

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of the criminal responsibility test.

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<v Judge>Right.</v>

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<v ->I'm not talking about within the specific</v>

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wrongfulness.

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<v ->Can we simplify this for a minute?</v>

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What you're talking about?

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There's no issue in this case at all about

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a mental disease or defect.

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<v John>Right.</v>

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<v ->And the issue here is whether or not,</v>

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as it relates to the second prong,

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I usually call it, I would call that the third prong

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because, but let's call it the way you set it up

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in your brief.

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Prong one is, is there a mental disease or defect?

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Part two is, and part three,

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I'll skip part two for a minute,

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is can you conform your conduct

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to the requirements of the law?

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So the way you formulated McCool,

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is it appreciate the criminality

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or wrongfulness of the conduct,

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or criminality and wrongfulness of the conduct.

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And you say it's, and, and you say it matters

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because when she found not guilty

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of the most serious charges,

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and as it relates to the child endangerment

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and the intimidation, she knows it's criminal.

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That's why she takes the phone away and everything.

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But to her, it's not, she doesn't appreciate the morality,

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the wrongfulness of it.

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So you are saying the disjunctive

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or conjunctive matters in this case.

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<v ->Exactly.</v>
<v ->So if that's the case,</v>

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that's the the simple issue that we're looking at.

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And you're saying that, your words not mine,

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you're saying we've been sort of all over the place on that.

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<v ->Not all over the place.</v>

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I just don't think the court has dealt

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with it head on in the way that other states have,

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and the way that Justice Cardozo did head-on

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in Schmidt in 1916, where he really tackled that question

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and looked at the history of the common law

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and came to the conclusion that really,

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what we want to be talking about here,

252
00:12:15.480 --> 00:12:18.030
is moral right versus moral wrong.

253
00:12:18.030 --> 00:12:21.213
That's ultimately the most important question.

254
00:12:22.500 --> 00:12:24.120
<v ->Well, again, was it, was that a right,</v>

255
00:12:24.120 --> 00:12:25.440
that was a right and wrong case,

256
00:12:25.440 --> 00:12:27.990
it wasn't a McCool case, correct?

257
00:12:27.990 --> 00:12:30.060
<v ->I guess I'm missing the distinction, Your Honor.</v>

258
00:12:30.060 --> 00:12:32.410
<v ->Because it doesn't have the volitional prong,</v>

259
00:12:34.140 --> 00:12:36.930
<v ->There's a safety net here in your scenario-</v>

260
00:12:36.930 --> 00:12:38.360
<v ->I understand.</v>

261
00:12:38.360 --> 00:12:40.770
<v ->That protects defendants when the Commonwealth has</v>

262
00:12:40.770 --> 00:12:43.320
to prove the case beyond a reasonable doubt,

263
00:12:43.320 --> 00:12:47.520
because the Commonwealth can't just prove criminal

264
00:12:47.520 --> 00:12:51.570
or wrong, it also has to prove beyond a reasonable doubt

265
00:12:51.570 --> 00:12:56.280
that they lack capacity, the substantial capacity

266
00:12:56.280 --> 00:12:59.370
to conform their conduct to the requirements of the law.

267
00:12:59.370 --> 00:13:04.370
<v ->Understood, and but I think same analysis applies,</v>

268
00:13:06.750 --> 00:13:09.003
regardless of whether there's a second prong.

269
00:13:10.170 --> 00:13:14.100
I think that under this prong of wrongfulness,

270
00:13:14.100 --> 00:13:17.520
it is important to clarify that

271
00:13:17.520 --> 00:13:21.003
we require the moral component of that.

272
00:13:29.561 --> 00:13:34.440
And I think turning to why it matters in this case,

273
00:13:34.440 --> 00:13:39.300
what the, I think Judge Sullivan's instruction was clear

274
00:13:39.300 --> 00:13:40.593
that it was an or.

275
00:13:42.180 --> 00:13:43.740
So what's, why does it matter here?

276
00:13:43.740 --> 00:13:45.810
What's the prejudice here?

277
00:13:45.810 --> 00:13:48.060
I mentioned that we have both these doctors using

278
00:13:48.060 --> 00:13:50.010
that different language during the attack versus

279
00:13:50.010 --> 00:13:54.870
during the 9-1-1 call, we have Ms. Rezac's conduct.

280
00:13:54.870 --> 00:13:56.340
<v ->I think your remedy is clear.</v>

281
00:13:56.340 --> 00:13:58.770
I mean, you, you laid out that it goes back

282
00:13:58.770 --> 00:14:01.260
to him to apply the right test, right?

283
00:14:01.260 --> 00:14:02.730
<v ->Right, and we're not asking for-</v>

284
00:14:02.730 --> 00:14:06.240
<v ->If he, using our language, our fault not his,</v>

285
00:14:06.240 --> 00:14:09.600
if he misinstructed himself,

286
00:14:09.600 --> 00:14:11.900
then he should have the opportunity to correct

287
00:14:13.350 --> 00:14:16.773
his instructions with better guidance from this court.

288
00:14:18.180 --> 00:14:21.900
<v ->Exactly, and I think Your Honor's question</v>

289
00:14:21.900 --> 00:14:23.310
in the prior case was interesting

290
00:14:23.310 --> 00:14:24.480
because we also have a case

291
00:14:24.480 --> 00:14:27.570
where a judge laid out what he was thinking.

292
00:14:27.570 --> 00:14:29.820
And I think there is some danger in reading

293
00:14:29.820 --> 00:14:33.150
too much into that because out of sort of respect

294
00:14:33.150 --> 00:14:34.200
for the fact-finder.

295
00:14:34.200 --> 00:14:36.780
So I think if this court's, wants to know

296
00:14:41.490 --> 00:14:43.080
what Judge Sullivan would've done

297
00:14:43.080 --> 00:14:46.350
under a different instruction, it should err on the side

298
00:14:46.350 --> 00:14:48.540
of remanding it back to him.

299
00:14:48.540 --> 00:14:53.010
But I do think his language of making that switch,

300
00:14:53.010 --> 00:14:57.540
why that switch with Ms. Rezac towards appreciation,

301
00:14:57.540 --> 00:14:59.955
his reliance on the fact of the ramifications

302
00:14:59.955 --> 00:15:03.090
of the nine 9-1-1 call is really revealing

303
00:15:03.090 --> 00:15:06.480
because you can sort of see how he was dealing with,

304
00:15:06.480 --> 00:15:09.540
well, doesn't that show this criminal appreciation

305
00:15:09.540 --> 00:15:11.580
in the sense that the police might be coming.

306
00:15:11.580 --> 00:15:14.140
But again, I think that's going back to

307
00:15:15.298 --> 00:15:17.583
what Justice Cardozo was talking about.

308
00:15:18.420 --> 00:15:20.640
It's a different, it's slightly different question

309
00:15:20.640 --> 00:15:22.653
than moral right versus moral wrong.

310
00:15:23.850 --> 00:15:26.973
And if I could briefly turn to the second issue in the case,

311
00:15:28.590 --> 00:15:30.654
if that's all right with Your Honor-

312
00:15:30.654 --> 00:15:32.760
<v ->You don't have a whole lot of time to do that.</v>

313
00:15:32.760 --> 00:15:35.633
<v ->If there are any questions on the second issue, I suppose.</v>

314
00:15:36.870 --> 00:15:38.280
<v Judge>Okay, thank you so much.</v>

315
00:15:38.280 --> 00:15:39.113
<v ->Thank you.</v>

316
00:15:46.440 --> 00:15:49.323
<v ->I'm sorry, Attorney Hanson.</v>

317
00:15:50.730 --> 00:15:53.040
<v ->Good morning Arne Hanson for the Commonwealth,</v>

318
00:15:53.040 --> 00:15:54.900
if it pleases the court.

319
00:15:54.900 --> 00:15:57.090
With respect to the criminal responsibility issue,

320
00:15:57.090 --> 00:15:59.070
I don't believe there is any ambiguity.

321
00:15:59.070 --> 00:16:01.500
I believe the case law is very clear.

322
00:16:01.500 --> 00:16:03.390
The model jury instructions are very clear.

323
00:16:03.390 --> 00:16:05.100
It uses the word or, but if you go back

324
00:16:05.100 --> 00:16:06.630
and look at the seminal case,

325
00:16:06.630 --> 00:16:10.860
United States versus Freeman, on page 623,

326
00:16:10.860 --> 00:16:13.380
again, they use the words appreciation,

327
00:16:13.380 --> 00:16:16.590
understanding of the moral or legal import of behavior.

328
00:16:16.590 --> 00:16:18.750
So they use the or word as well.

329
00:16:18.750 --> 00:16:22.380
That seminal case also recognized that someone might be able

330
00:16:22.380 --> 00:16:25.110
to understand the criminal implications but not the moral,

331
00:16:25.110 --> 00:16:26.340
and vice versa.

332
00:16:26.340 --> 00:16:29.070
<v ->What about the way it's, we phrased it</v>

333
00:16:29.070 --> 00:16:31.860
in Commonwealth versus Dunphy with the either,

334
00:16:31.860 --> 00:16:36.177
and does the either go to the first prong

335
00:16:36.177 --> 00:16:37.590
or the second prong?

336
00:16:37.590 --> 00:16:39.093
Is that a little confusing?

337
00:16:40.980 --> 00:16:42.450
<v ->I think it's important to establish</v>

338
00:16:42.450 --> 00:16:44.760
that someone understood that their actions were wrong.

339
00:16:44.760 --> 00:16:46.080
And there's two ways that the court

340
00:16:46.080 --> 00:16:47.790
has allowed us to do that.

341
00:16:47.790 --> 00:16:50.130
One by demonstrating that they understand

342
00:16:50.130 --> 00:16:52.140
that the police are coming,

343
00:16:52.140 --> 00:16:55.320
or two, more basic along the lines

344
00:16:55.320 --> 00:16:56.637
of this is good versus evil,

345
00:16:56.637 --> 00:16:59.340
<v ->But Dunphy cites the model homicide instructions</v>

346
00:16:59.340 --> 00:17:02.913
that have a more clear part of that-

347
00:17:04.403 --> 00:17:05.997
<v ->But I'm not sure I understand the question.</v>

348
00:17:05.997 --> 00:17:08.670
<v ->No, Dunphy does cite the model homicide instructions,</v>

349
00:17:08.670 --> 00:17:11.544
which has the delineation so that it implies

350
00:17:11.544 --> 00:17:16.110
that the either refers to prong two and three,

351
00:17:16.110 --> 00:17:17.973
not the sub prongs, I guess, of two.

352
00:17:19.450 --> 00:17:23.340
I'm talking just to Justice Lowy, I apologize, I apologize.

353
00:17:23.340 --> 00:17:24.870
<v ->So I think it's important to look</v>

354
00:17:24.870 --> 00:17:27.570
at Commonwealth vs. Loya, and that's a recent case

355
00:17:27.570 --> 00:17:29.490
out of this court from 2019,

356
00:17:29.490 --> 00:17:34.230
which I think is a perfect illustration of why it's or,

357
00:17:34.230 --> 00:17:37.717
and why it should remain or, and shouldn't change to and.

358
00:17:38.925 --> 00:17:40.680
And now briefly, in Loya, the victim

359
00:17:40.680 --> 00:17:43.533
and the defendant were coworkers in the Coast Guard.

360
00:17:44.400 --> 00:17:45.693
They were good friends.

361
00:17:46.800 --> 00:17:50.340
One day the victim tried to seduce the defendant,

362
00:17:50.340 --> 00:17:51.600
which took the defendant aback.

363
00:17:51.600 --> 00:17:53.430
He, there's no sexual contact,

364
00:17:53.430 --> 00:17:56.070
but he labeled it as the rape of the mind.

365
00:17:56.070 --> 00:17:57.510
The defendant was then transferred

366
00:17:57.510 --> 00:17:59.160
to a different Coast Guard base.

367
00:17:59.160 --> 00:18:00.750
And when he arrived there, he was reprimanded

368
00:18:00.750 --> 00:18:04.410
for his actions during that incident with the victim,

369
00:18:04.410 --> 00:18:08.910
which took him by surprise, which turned into anger.

370
00:18:08.910 --> 00:18:12.570
Now at this point, the defendant's life deteriorated

371
00:18:12.570 --> 00:18:15.240
and he blamed the victim for what ensued.

372
00:18:15.240 --> 00:18:17.430
Over the next couple of years, he became depressed

373
00:18:17.430 --> 00:18:19.620
and his life completely fell apart.

374
00:18:19.620 --> 00:18:21.780
He became suicidal and was certainly someone

375
00:18:21.780 --> 00:18:23.673
who dealt with a mental condition.

376
00:18:25.290 --> 00:18:27.780
He resolved to die, but before he did so,

377
00:18:27.780 --> 00:18:31.320
he would take revenge upon the person who ruined his life.

378
00:18:31.320 --> 00:18:34.380
So in this case, he was certainly, from his perspective,

379
00:18:34.380 --> 00:18:36.270
he certainly felt that he was morally justified.

380
00:18:36.270 --> 00:18:39.423
So what he did is he went to the victim's home to kill her.

381
00:18:41.160 --> 00:18:42.930
He knew that these actions were wrong

382
00:18:42.930 --> 00:18:45.360
and we know that because he knew the police would come

383
00:18:45.360 --> 00:18:49.230
and his plan was to die by suicide, by police officer.

384
00:18:49.230 --> 00:18:51.090
Kill the victim and then get into a to shoot out

385
00:18:51.090 --> 00:18:52.710
and be killed with the police.

386
00:18:52.710 --> 00:18:57.120
But he needed enough time to kill the victim.

387
00:18:57.120 --> 00:18:59.580
So he put his car in the middle of the road, lit it on fire,

388
00:18:59.580 --> 00:19:01.050
and he set up numerous booby traps

389
00:19:01.050 --> 00:19:04.170
and decoys around the house to buy himself more time.

390
00:19:04.170 --> 00:19:07.200
So certainly he is, he understands

391
00:19:07.200 --> 00:19:10.140
and appreciates the criminality of his actions,

392
00:19:10.140 --> 00:19:14.850
but his delusions, in his eyes, he's justified.

393
00:19:14.850 --> 00:19:16.800
So this is clearly someone who can distinguish

394
00:19:16.800 --> 00:19:19.020
between the two prongs.

395
00:19:19.020 --> 00:19:22.140
And that conviction was affirmed, illustrating the point

396
00:19:22.140 --> 00:19:26.343
that it's not both, it's one or the other.

397
00:19:27.300 --> 00:19:28.677
Now, if we were to change the law

398
00:19:28.677 --> 00:19:31.680
and the Commonwealth would have to prove both,

399
00:19:31.680 --> 00:19:33.990
it would be impossible to convict this person

400
00:19:33.990 --> 00:19:35.850
because all the defendant, I understand the burden is

401
00:19:35.850 --> 00:19:37.650
on the Commonwealth, but all the defendant

402
00:19:37.650 --> 00:19:39.030
in his affirmative defense would have

403
00:19:39.030 --> 00:19:42.840
to do is present evidence that he believed

404
00:19:42.840 --> 00:19:44.370
he was morally justified.

405
00:19:44.370 --> 00:19:47.160
This person ruined my life, everything fell apart.

406
00:19:47.160 --> 00:19:49.833
I became suicidal as a result of their conduct.

407
00:19:50.760 --> 00:19:52.770
I was justified in doing this despite

408
00:19:52.770 --> 00:19:54.470
the fact that I knew it was wrong,

409
00:19:55.470 --> 00:19:58.530
I cannot be convicted if the Commonwealth has to prove both.

410
00:19:58.530 --> 00:20:01.680
And I think that opens a very dangerous door

411
00:20:01.680 --> 00:20:04.380
because you're, by definition, when we're dealing

412
00:20:04.380 --> 00:20:06.600
with criminal responsibility cases,

413
00:20:06.600 --> 00:20:08.070
we're dealing with people with mental disease

414
00:20:08.070 --> 00:20:11.163
and defects who have delusional and irrational thoughts.

415
00:20:12.810 --> 00:20:15.480
They're going to think differently

416
00:20:15.480 --> 00:20:18.810
and they're going to spurn revenge based

417
00:20:18.810 --> 00:20:21.690
on something that a normal person wouldn't conceive

418
00:20:21.690 --> 00:20:22.683
as a threat.

419
00:20:25.410 --> 00:20:28.957
So to open the door for them to say,

420
00:20:28.957 --> 00:20:30.967
"I have a mental disease or defect.

421
00:20:30.967 --> 00:20:32.227
"I am suffering from depression,

422
00:20:32.227 --> 00:20:34.023
"I'm bipolar schizophrenic,

423
00:20:34.897 --> 00:20:36.240
"all I need to do to get away

424
00:20:36.240 --> 00:20:38.647
with this crime is show that I believed

425
00:20:38.647 --> 00:20:41.404
"in my delusions and therefore was justified

426
00:20:41.404 --> 00:20:44.647
"in the actions, irrespective of any evidence

427
00:20:44.647 --> 00:20:46.770
"that I knew was criminally wrong."

428
00:20:46.770 --> 00:20:49.080
So right now, the Commonwealth can use consciousness

429
00:20:49.080 --> 00:20:53.460
of guilt evidence to overcome the defense.

430
00:20:53.460 --> 00:20:56.280
If you demonstrate that you took actions

431
00:20:56.280 --> 00:20:59.490
to avoid capture, to say that it wasn't you,

432
00:20:59.490 --> 00:21:02.760
or to diminish your role, or to cover up the crime entirely,

433
00:21:02.760 --> 00:21:04.140
that can be used as evidence

434
00:21:04.140 --> 00:21:06.390
to overcome the criminal responsibility defense.

435
00:21:06.390 --> 00:21:08.100
That wouldn't happen anymore.

436
00:21:08.100 --> 00:21:10.110
I think we would be opening Pandora's Box

437
00:21:10.110 --> 00:21:11.373
if this law is changed.

438
00:21:15.870 --> 00:21:17.250
I think I've made my point with regards

439
00:21:17.250 --> 00:21:18.660
to criminal responsibility.

440
00:21:18.660 --> 00:21:20.850
Are there any questions regarding any other portions

441
00:21:20.850 --> 00:21:23.250
or further questions on criminal responsibility?

442
00:21:24.900 --> 00:21:26.730
<v ->I guess my question is, do you think</v>

443
00:21:26.730 --> 00:21:30.063
our case law is clear that as it,

444
00:21:31.110 --> 00:21:33.273
the criminality of wrong wrongfulness,

445
00:21:33.273 --> 00:21:35.940
that it's clear that that's disjunctive?

446
00:21:35.940 --> 00:21:38.820
<v ->Yes, so Freeman cites that, so what happened,</v>

447
00:21:38.820 --> 00:21:40.560
I looked at Goudreau again in preparation

448
00:21:40.560 --> 00:21:42.840
for today's argument, and I think the defendant is trying

449
00:21:42.840 --> 00:21:45.780
to take advantage of what I perceive,

450
00:21:45.780 --> 00:21:50.490
not to be ambiguity, but the and comment comes

451
00:21:50.490 --> 00:21:53.970
from page 738 of Goudreau.

452
00:21:53.970 --> 00:21:56.430
There's a paragraph there that defines

453
00:21:56.430 --> 00:21:57.780
what it means to appreciate.

454
00:21:57.780 --> 00:22:00.607
And the first portion of that paragraph states,

455
00:22:00.607 --> 00:22:02.707
"Appreciate the criminality or wrongfulness

456
00:22:02.707 --> 00:22:03.930
"of his or her conduct."

457
00:22:03.930 --> 00:22:05.700
So it defines the test clearly.

458
00:22:05.700 --> 00:22:08.670
The second portion defines what it means to appreciate,

459
00:22:08.670 --> 00:22:11.137
at which point, and I'm quoting from the case,

460
00:22:11.137 --> 00:22:13.777
"Meaningful understanding and intelligent comprehension

461
00:22:13.777 --> 00:22:18.030
"of the legal and moral import of his or her conduct."

462
00:22:18.030 --> 00:22:20.280
What the court is doing, they use the word and there,

463
00:22:20.280 --> 00:22:22.080
but I believe what the court is saying is

464
00:22:22.080 --> 00:22:25.800
that it applies to both the meaningful understanding

465
00:22:25.800 --> 00:22:28.819
and intelligent comprehension applies to both the legal

466
00:22:28.819 --> 00:22:33.510
understanding as well as the moral understanding

467
00:22:33.510 --> 00:22:35.310
of the consequences of your actions.

468
00:22:35.310 --> 00:22:37.470
It's saying it applies to both of those prongs,

469
00:22:37.470 --> 00:22:39.660
rather than if you use or, it might suggest it might

470
00:22:39.660 --> 00:22:41.520
only apply to one or the other.

471
00:22:41.520 --> 00:22:43.980
<v ->Because when we use, we have to be careful</v>

472
00:22:43.980 --> 00:22:46.080
because that was, that was the situation in Alemany,

473
00:22:46.080 --> 00:22:48.900
'cause when we state what the government has to prove,

474
00:22:48.900 --> 00:22:50.700
it switches around, right?

475
00:22:50.700 --> 00:22:54.750
<v ->Right, I do think that the case law is clear,</v>

476
00:22:54.750 --> 00:22:59.610
and I think Loya is a perfect example of how the law works.

477
00:22:59.610 --> 00:23:02.343
Because if it was both, Loya would not be convicted.