28 June 2010

Mullaney v. Wilbur, 421 U. S. 684 (1975)
Does the prosecution have to disprove all possible affirmative defenses?

Sometimes you trip across cases which are just strange. I had Mullaney pointed out to me by another lawyer. It's a case which has two possible meanings and which Shepard lists as overruled. I don't think it actually is, but a subsequent USSC case, Patterson v. New York, 432 U. S. 197 (1977), definitely "explained" it, eliminating a broad reading.

Maine had a rather strange procedural scheme involving homicide trials. The prosecution had to prove the killing was unlawful and intentional. At that point "malice and aforethought" was "conclusively implied" and the defendant had to prove, to a preponderance, that the killing was done in the "heat of passion on sudden provocation" in order for the jury to find the defendant merely guilty of manslaughter. Mind you, this was in the pre-bifurcated trial days so that places the burden on the defendant of protesting his innocence and trying to prove he only committed manslaughter at the same time.

The appellate history of this is different from any I've seen before. The Maine supreme court ruled that Maine had a crime, "Homicide", and that murder and manslaughter were different degrees of this offense. Under long standing precedent, malice aforethought was presumed upon proving the two elements of homicide. Since Homicide had been proven, and the higher degree assumed, it was just fine for the defendant to have the burden of proving it was a heat of passion manslaughter.

The federal district court, upheld on appeal by the 1st Circuit, decided that as long as there were constitutional issues it could decide that the Maine supreme court was not the final arbiter of its own State's laws and therefore murder and manslaughter were separate, distinct crimes and the element of malice aforethought must be proven beyond a reasonable doubt to prove the crime of murder.

Meanwhile, back in Maine, the State supreme court was not taking this lying down. In a different case, it stuck to its guns and told the 1st Circuit where it could stick its interpretation of Maine law (wow, a State's rights argument from a Yankee court - now I've seen everything).

The case went up to the USSC, which passed that hot potato right back down to the 1st Circuit. This time the 1st Circuit caved on the who had the right to interpret the framework of State law, but ruled that it didn't matter anyway. Sure, the State had ruled that malice aforethought was conclusive implied with the proof of the two elements of Homicide, but it hadn't said anything about the counter element, heat of passion on sudden provocation. It then ruled that, because of the great differences in punishment dependant upon whether HoPoSP exists or not, the prosecution was required to prove that it didn't.

Sure it's silly. It's a backhanded, convoluted, contrived way of getting to the same conclusion. You want to determine your own State's legal framework? Fine. You want to set it up so that the element of malice aforethought is assumed? Fine. We'll work within your framework. If we can't make the prosecution prove one element, we'll make it disprove the counter element. You can have your precious, much stare decisesed presumption of malice aforethought. You just have to prove beyond a reasonable doubt that its counter, HoPoSP, didn't exist.

Surely, the USSC would see through all this childishness and set everybody straight. It would issue an opinion stating that even under a legal scheme set up as Maine's was the courts couldn't just assume an element exists and shift the burden to the defense to prove the counter to that element. Wouldn't it?


The USSC adopts the same convoluted reasoning in its entirety.

Why is this a problem? Well, because HoPoSP is clearly an affirmative defense. However, because Maine had a presumption of malice aforethought and the USSC wasn't ready to tell Maine that it couldn't do that, the court had to backdoor the problem. In effect, the USSC is requiring the proof of malice aforethought beyond a reasonable doubt - it's just being too polite to throw it back in the Maine's face.

So, post Mullaney, any defense attorney with a little creativity and some time to do some research can point at this case and claim that the prosecutor in his client's case must disprove any and all affirmative defenses found in the statutes and under the common law. The difficulty lies in the fact that this is impossible. One of the primary reasons for a defense being declared "affirmative" is that it is something which is impossible, or so hard as to be practically so, to prove or disprove. Consider the following statute:
It shall be illegal to hunt snipes unless the hunter has received permission to do so from a priest, , preacher, rabbi, imam, or similarly leader of a religious group.
So, a guy gets caught snipe hunting in Pitcairn County, Virginia. How is a prosecutor supposed to contact every single religious leader in the county, much less the entire Commonwealth or the the other States? It is not possible. On the other hand, the defendant knows he got permission to snipe hunt from Rabbi Burstein in Tellerville, Kentucky. In such a case either the defense must fall upon the defendant or it swallows the law. It will never be possible to prove that the defendant doesn't have permission from some religious leader somewhere.

Why should we care? Well, if the legislature can't write exceptions into the law without making the law impotent it will stop allowing exceptions. Mind you, exceptions won't entirely go away, it'll just be that officers and prosecutors will decide whether a prosecution should go forward in every single case case. Even if a great majority of the populace disagrees, the legislature cannot write the exception into the law because any exception will make the law unenforceable.

The saving grace was the Patterson case which came a mere two years later. In that case the USSC "explained" that
To recognize at all a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue, if, in its judgment, this would be too cumbersome, too expensive, and too inaccurate. We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.
Then it goes on to clearly state what it was too polite to say directly in Mullaney
Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient [malice aforethought] upon proof of the other elements of the offense. This is true even though the State's practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
So, in less than two years the USSC recognized that it had double-talked itself into a corner which made no sense and had to go back and say, "Yeah, yeah. Look we shoulda said it this way. Go away."

>Mullaney v. Wilbur, an object lesson on the abject failure of a court to say what it means and mean what it says.

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