Today’s ruling by the MA Supreme Judicial Court in Com. v. Rutkowski, No. SJC-10417 (2011), represents yet another small step towards establishing more bright line guidance for Massachusetts juries in how to use and apply an affirmatively raised defense of insanity. In unanimously reducing the defendant’s conviction in Rutkowski from murder 1 (life without any possibility of parole) to murder 2 (life with parole eligibility at 15 years), the SJC ruled that the jury should have been instructed that they could consider whether the defendant’s mental health problems were responsible for the way she killed her victim. Specifically, according to Justice Spina, the MA High Court ruled that "it should have been made clear to the jury that they could consider evidence of mental impairment on the specific question of whether the murder was committed with extreme atrocity or cruelty", the latter being one of 3 theories of criminal liability upon which 1st degree murder verdicts may be returned in the Commonwealth. While the ruling does not change the burden of proof for Massachusetts insanity cases as it has existed for over 100 years in which, once pled under Mass. R. Crim. P. 14(b) and raised by evidence introduced by the defendant, the burden shifts back to the prosecution to prove the defendant’s sanity beyond a reasonable doubt, see Com. v. Keita, 429 Mass. 843 (1999) citing Com. v. Johnson, 188 Mass. 382 (1905); c.f. the Durham Rule standard applicable to NH cases (originally announced in NH in State v. Pike, 49 N.H. 399 (1870)), where the burden remains on the defendant to prove he/she is insane. Nor does it affect the legal definition of insanity (or lack of criminal responsibility) in Massachusetts where a person is found "not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect lacks substantial capacity to either appreciate the criminality (wrongfulness) of his conduct or conform his conduct to the requirements of the law". Com. v. McHoul, 352 Mass. 544 (1967). Moreover, the decision does not go as far as overturning the SJC’s standing contention that there is no "[per se] diminished capacity defense in the Commonwealth", see Com. v. Parker, 420 Mass. 242 (1995), although some of the language in Rutkowski may suggest the Court is slowly evolving in that direction. However, what it does do is make it clear not only that "mental impairment, whether resulting from intoxication or otherwise, may be relevant to issues of deliberate premeditation, extreme atrocity and cruelty, and intent and knowledge", [in other words, mental impairment may be relevant to the issue of the defendant’s specific intent], see Com. v. Militello, 66 Mass App Ct 325 (2006), and that "a defendant on trial for murder in the first degree may produce evidence and expert testimony that the impairment of his mental process precluded him from acting with extreme atrocity and cruelty", see Com. v. Robidoux, 450 Mass 144 (2007), but also that it is now fatal error for Massachusetts judges not to instruct juries considering an insanity defense that they may consider whether mental health issues contributed to, or resulted in, the conduct on which the prosecution’s theory of criminal liability depends. So, while Rutkowski may not yet provide the diminished capacity "safety valve" experienced law and psychiatry practitioners have been waiting for, and although its application will not absolve mentally impaired defendants of criminal responsibility altogether, it does recognize that there are nuances to the insanity defense that make it less than the all or nothing proposition that many less experienced practitioners fear it to be. More than that, though, a correct reading of Rutkowski can provide juries with a rational basis to return a lesser verdict of murder 2 in cases where mental impairment is established and not rebutted. After Rutkowski, the possibility of a murder 2 verdict with parole eligibility at 15 years, versus serving a sentence of the remainder of one’s natural life in prison on a murder 1 verdict, may not only be the best one can hope for given the underlying facts in some of these sad, disturbing, and complex cases, but may also provide the best available vehicle to assure that justice was properly done.
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