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Lancaster Decision: Not Retroactive if the Defense Never Existed?

Burt Lancaster has twice been convicted of murdering his girlfriend in 1993. The former police officer, with a history of severe mental problems, argued both insanity and diminished capacity at his trial in 1994. He later obtained federal habeas relief from that conviction, after successfully arguing a Batson claim.

He fared no better in his 2005 retrial, when he tried to argue diminished capacity in a bench trial. The court refused to allow him to assert the defense, citing the Michigan Supreme Court's decision in People v. Carpenter in 2001, which abolished the defense of diminished capacity.

Lancaster is not a man who is easily deterred. He appealed the decision throughout the state court system, then filed for habeas relief in federal court, arguing that the retroactive elimination of the diminished capacity defense violated his due process rights. While the district court disagreed, the Sixth Court overturned the lower court and vacated the conviction.

Ruth Bader Ginsburg, writing for a unanimous court, was not nearly as kind.

Can You Abolish a Defense That Never Existed? (The Carpenter Ruling)

If one were to read Michigan's criminal statutes, they would not find the defense of diminished capacity. If one were to peruse the tomes of Michigan Supreme Court jurisprudence, they likewise would find no substantive approval of the defense and only passing mentions.

Nonetheless, thanks to a Michigan appeals court, such a defense unofficially existed from 1973 until the state supreme court actually read the statute in 2001. In Carpenter, the court, while acknowledging their past mentions of the defense, held that the legislature had intended insanity to be an "all or nothing" defense, and that diminished capacity was not a viable argument.

AEDPA Requires Unreasonable Application of Clearly Established Federal Law

The Antiterrorism and Effective Death Penalty Act requires the defendant to show an unreasonable application of clearly established Federal law in order to obtain habeas relief. This showing can be made if the change in law, that is applied retroactively, was completely unforeseeable at the time of the crime.

The court cited Bouie v. City of Columbia as an example of such a showing. In that case, the South Carolina Supreme Court interpreted the definition of trespassing to include staying on someone's property after notice to leave. The interpretation came after the Bouie defendants refused to leave a whites-only restaurant. The Supreme Court, in finding a due process violation, noted that the state court's decision had no basis in the statutes or prior case law.

No Law, No Foul

Contrary to Bouie, where the court "unexpectedly expanded 'narrow and precise statutory language' that, as written, did not reach the petitioners' conduct," here, the Michigan Supreme Court, for the first time, addressed and rejected a diminished capacity defense that had no basis in a "comprehensive, on-point statute enacted by the Michigan Legislature." Such a decision, according to the court, is neither unexpected nor "indefensible by reference to [existing] law."

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