Mich. Chief Justice Pushes For Diminished Capacity Defense

By Danielle Ferguson | July 17, 2023, 7:21 PM EDT ·

The Michigan Supreme Court's chief justice said the state's ban on using a diminished mental capacity defense was misguided and urged the state Legislature to rethink an "all-or-nothing approach" that recognizes only legal insanity as a defense to criminal responsibility.

In a Friday order denying leave to appeal the murder conviction of Jacquelyn Faye Tyson, Chief Justice Elizabeth Clement implored the state Legislature to reconsider the role of mental illness evidence in criminal trials. However, she agreed with the majority of justices in finding that Tyson's case wasn't the appropriate vehicle to overturn a 2001 ruling that set the "all or nothing" precedent for legal insanity. 

In a dissent, three of the justices said they would have overruled that 2001 decision, People v. Carpenter , that ended the use of the diminished capacity defense in Michigan.

Tyson was charged with two counts of first-degree premeditated murder after she shot and killed an assistant manager and a leasing officer of her apartment complex in 2016 over complaints about "toxins" seeping into her apartment and vehicle. She wasn't found competent to stand trial until two years later, and then pursued the legal insanity affirmative defense. The judge presiding over the bench trial heard testimony from expert witnesses about her mental state at the time of the crime. The judge found Tyson guilty but mentally ill of first-degree premeditated murder with respect to one victim and of second-degree murder for the other victim.

On appeal, Tyson argued that the Carpenter case, which essentially eliminated the diminished capacity defense, was wrongly decided. The Michigan Court of Appeals rejected that argument and said it was bound to apply Carpenter. The Michigan Supreme Court ordered oral arguments on an application for leave to appeal on whether Carpenter should be overruled, and, if so, what relief Tyson should be entitled to.

Justice Clement and the dissenting justices said the Carpenter case was wrongly decided.

Justice Clement, however, said she did not think Tyson's case was the appropriate vehicle to overturn the Carpenter decision because Tyson's defense counsel didn't raise the diminished capacity defense at the trial level, so the issue wasn't preserved on appeal.

But the Carpenter decision precluded the defense from raising diminished capacity evidence, Justice Clement pointed out, and she questioned whether that inability seriously affected the fairness of the proceedings. Had Tyson's defense brought up diminished capacity, the trial judge would have most likely denied the request by citing Carpenter and moved on with the case, Justice Clement wrote. Preserving the issue wouldn't have added much to the record, she said.

"However, I do not think this means we should excuse the preservation requirement in this case — or in cases like it. To do so would require courts to be in the business of deciding which errors must be preserved and which can be excused, upending the stability of our preservation framework," Justice Clement wrote. 

Even if the defendant had preserved the issue, Justice Clement said she didn't think the court was the appropriate venue to reconsider the diminished capacity defense in Michigan.

Justice Clement urged the state Legislature to reconsider the law that applies when a criminal defendant suffers from mental illness at the time they commit a crime.

The Legislature hasn't changed the legal framework that applies to criminal defendants with mental illness since 1975, Justice Clement wrote. Since then, social policy and scientific understanding around mental illness has changed "drastically," she wrote.

In a strong dissent, Justice Megan Cavanagh, joined in by Justices Elizabeth Welch and Kyra Harris Bolden, said Tyson's case gave the high court the opportunity to right a wrong in the "flawed statutory interpretation" of People v. Carpenter.

It would also be an opportunity to restore a criminal defendant's right to present evidence of a diminished mental capacity and for the court to reestablish that it's the prosecution's responsibility to prove all elements of a crime, including intent, Justice Cavanagh wrote.

In the Carpenter case, James A. Carpenter was charged in 1995 with home invasion, assault with intent to commit murder, possession of a firearm and other charges after breaking into his ex's home with a gun. He brought evidence of diminished capacity. After psychiatric evaluation, doctors said Carpenter was mentally ill and had a diagnosis of a "schizo-affective disorder," according to an appellate brief in that case. The trial court rejected Carpenter's diminished capacity defense, and Carpenter was convicted of first-degree home invasion.

Carpenter appealed the conviction, arguing to the Court of Appeals that the trial court was wrong to put the burden on him to prove diminished capacity. The Court of Appeals rejected that argument, and Carpenter appealed to the Michigan Supreme Court. The state high court affirmed, and in doing so, "did away with the diminished-capacity defense in total," Justice Cavanagh wrote.

The Michigan Supreme Court at that time concluded that the Michigan Legislature created an "all or nothing" insanity defense that was the only way a mental incapacity could absolve a defendant of criminal responsibility, according to the dissent.

The Carpenter appellate panel "improperly read meaning" into the Legislature's silence, rather than leaning on the words of the law, Justice Cavanagh wrote. The Legislature didn't abolish the diminished capacity defense or say that it had intent to bar a defendant from producing evidence of a diminished capacity, Justice Cavanagh wrote. The statute for the insanity defense says mental illness does not constitute a defense of legal insanity. That is silent as to whether mental illness or an intellectual disability can be admitted as it relates to specific intent of a crime, Justice Cavanagh wrote.

Diminished capacity evidence does not constitute an affirmative defense, Justice Cavanagh wrote. It instead allows a defendant to "offer evidence of some mental abnormality to negate the specific intent required to commit a particular crime," she wrote, quoting Carpenter.

That makes sense, she said, because the prosecution must prove every element of a crime, including intent, and diminished capacity evidence may be used to negate the intent of the crime.

If a defendant wants to lodge an insanity defense, they must give notice and undergo psychiatric examinations. The defendant bears the burden of proving insanity.

After the Legislature put the insanity defense into law, the Court of Appeals interpreted the legal definition of insanity to include a diminished capacity concept, according to justices' Friday order. A defendant who wants to pursue a diminished capacity defense is required to comply with procedural requirements akin to the insanity defense.

The Michigan Supreme Court never formally endorsed the concept of diminished capacity, Justice Cavanagh wrote, "but it lived on in the Court of Appeals and in our trial courts for decades."

Most of the Carpenter appellate panel focused on the "guilty but mentally ill" statute, which was created in response to the case People v. McQuillan , in which James McQuillan was found not guilty by reason of insanity for assault with intent to rape a minor and committed to the Department of Mental Health. As the law stood then, if someone was committed to a mental hospital after being acquitted because they were found legally insane, they could be released to the public after a sanity hearing in as little as 60 days, according to the order. The guilty but mentally ill statute was designed to allow a sentence to be imposed due to public safety concerns.

By creating the guilty but mentally ill verdict, "the Legislature has demonstrated its policy choice that evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent," the Michigan Supreme Court said in the Carpenter decision.

The Carpenter panel thought that response demonstrated the Legislature's policy choice that evidence of mental incapacity cannot be used to avoid or reduce criminal responsibility, according to Justice Cavanagh's dissent.

Justice Cavanagh disagreed with that take, saying the guilty but mentally ill statute doesn't say anything about diminished capacity evidence. She said courts must refrain from speculating about what the Legislature intended beyond what words are used in statute. The court that decided the Carpenter case was wrong when it ruled that the mere existence of the guilty but mentally ill verdict barred introducing any diminished capacity evidence.

"Along the way, the Carpenter court ignored a host of statutory canons by improperly interpreting and speculating about legislative silence, ignoring statutory language, and failing to recognize that the Legislature must 'speak in no uncertain terms' to abrogate the common law," Justice Cavanagh wrote.

Justice Cavanagh acknowledged that just because a case is wrongly decided doesn't mean that overruling it would be appropriate. However, she said Carpenter's "erroneous abolishment" of a criminal defendant's option to bring forward evidence as important as their alleged diminished mental capacity justifies overruling the case.

"In the meantime, mentally ill defendants who do not possess the requisite specific intent for their crimes will likely continue to be convicted of crimes of which they are legally innocent," Justice Cavanagh wrote.

Justice Cavanagh also noted that society's understanding of mental illness and culpability has grown and evolved since the insanity statute was enacted and since the Carpenter case was decided. The state of Michigan court system has also recognized that people can experience symptoms of multiple disorders and those symptoms and disorders can appear differently in different people by deploying mental health court programs, Justice Cavanagh wrote.

Justice Cavanagh said she would support overruling Carpenter but acknowledged Tyson's case might not be the best vehicle to do so. Her counsel didn't introduce evidence of diminished capacity until the case reached the Court of Appeals, despite there being "ample evidence" to support that strategy, Justice Cavanagh said.

However, the only way to remedy the mistake is for the state high court to correct it, she said, and she would still support using this case to overturn Carpenter.

"Because of Carpenter, there was no error on the part of defense counsel or the trial court. Enforcing the preservation requirement here would serve only as a 'perverse incentive for criminal defendants'" to make a long, virtually useless list of objections to rulings plainly supported by precedent, according to the dissent. 

An attorney for the prosecution, Michael Tesner of the Genesee County Prosecutor's Office, said he was pleased with the high court's decision to leave Tyson's conviction in place, saying that was the government's primary request for relief, regardless of whether the justices reversed People v. Carpenter. 

"We agree with the chief justice that the issue was not properly before the Supreme Court because it was never raised in the trial court, and the court rightfully upheld the principle of issue preservation. We also agree with the notion that the issues raised by the defendant and other parties seeking to overturn Carpenter — changes in scientific understanding of mental illness and how the court system should best address treatment of mentally ill defendants — are better left to the more deliberative policy-making process available to the Legislature," Tesner told Law360 in an email. 

Tesner said he respected Justice Cavanagh's dissenting opinion, but agreed with Justice Clement that the issue of diminished capacity should be determined by the Legislature. 

"We believe that the Carpenter court made a valid interpretation of the statutory scheme enacted by the Legislature when it codified the insanity defense, required procedures for its use, and created an avenue to treat mentally ill individuals convicted of crimes because their mental illness did not render them legally insane. While the current court may have interpreted the statutory scheme in a different manner, we still believe that Carpenter's ruling was a logical and reasonable one and should be upheld," Tesner said. "If the Legislature is inclined to change Carpenter's interpretation that the Legislature intended not to provide an affirmative defense of diminished capacity in Michigan, then that change should be made by the Legislature."

Representatives for Tyson did not immediately respond to a request for comment Monday. 

Tyson is represented by Michael A. Faraone.

The state government is represented by Michael A. Tesner of the Appeals Division of the Genesee County Prosecutor's Office.

The case is People of Michigan v. Jacquelyne Faye Tyson, case number 162968, in the Michigan Supreme Court.

--Editing by Linda Voorhis. 

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!