Otis Jackson v. United States, No. 07-CF-1216
(decided Sept. 26, 2013)
Players: Glickman,
Beckwith, Ferren. Opinion by Judge
Beckwith. Deborah Persico for Mr.
Jackson. Trial judge: Neal Kravitz.
Facts: Otis Jackson killed his brother in their
family home with a hammer, shotgun, and pistol.
Witnesses testified that Jackson and his brother had not been getting
along in the months before the homicide, and that Jackson had threatened to
kill his brother. Jackson denied ever
having threatened his brother and claimed that he killed his brother because he
believed his that brother was possessed by a demon trying to kill him. He raised this defense both in the form of an
imperfect self-defense claim and a separate insanity defense.
The trial court granted Jackson’s request to bifurcate
the trial into two phases (merits and responsibility) on the ground that a
unitary trial would prejudice Jackson’s merits defense because the jury might
consider the government’s psychiatric experts as undermining Jackson’s
credibility; however, the court denied Jackson’s request to have a different
jury decide the insanity phase, finding that Jackson’s defenses in both phases
were consistent with one another. The
jury found Jackson guilty of the charges and rejected his insanity
defense.
Issue 1: Did the trial court abuse its discretion in
denying Mr. Jackson’s request to have different juries decide the merits and
insanity phases of the bifurcated trial?
Holding 1: No.
Because Jackson’s merits and insanity defenses were fundamentally
consistent, he was not prejudiced by having the same jury decide the insanity
phase that had decided the merits phase.
Issue 2: Did the trial court err in barring Mr.
Jackson from putting on expert testimony in the merits phase regarding Mr.
Jackson’s abnormal thought processes in order to negate the government’s proof
of mens rea?
Holding 2: No. In
Bethea v. United States, 365 A.2d 65
(D.C. 1975), the DCCA held that there is no “diminished capacity” defense in
D.C. and, therefore, a defendant may not “us[e] expert testimony of a mental
abnormality to claim that, because of the mental condition, he lacked capacity
to form the required mens rea” (slip
op. 29). Although Jackson characterized
the proffered expert testimony as mere “observation evidence,” an amorphous
category of evidence distinct from “capacity” evidence that the Supreme Court
recognized in Clark v. Arizona, 548 U.S. 735 (2006), the Court found that, at
bottom, Jackson sought the expert testimony to “differentiate between his
mental capacity and that of a normal person, (slip op. 36), which was precisely
the sort of “diminished capacity defense” barred by Bethea.
Issue 3: Did the trial court commit plain error in
ruling that Jackson could not present expert testimony on “the ultimate issue”
of criminal responsibility—i.e., testimony that his conduct was not “causally
related to his mental condition”?
Holding 3: Yes.
Case law is clear that experts can render opinions on “ultimate facts,”
and Bethea made clear that this rule
applies in insanity cases (slip op. at 38 (quoting Bethea, 365 A.2d at 82 (“there should be no ban on expressions of
causality”))). (The Court held, however,
that the judge’s plain error was not reversible because Jackson was not prejudiced.)
Issue 4: Did the trial court abuse its discretion in
barring Jackson from recalling, in its rebuttal on the insanity phase, an
expert witness who had already testified in the defense’s case-in-chief?
Holding 4: No.
The trial court denied rebuttal on the ground that the expert would have
largely repeated what he had already testified about. This was a valid ground for exclusion.
Issue 5: Does the fact that Jackson used his gun to
commit a crime—to wit, murdering his brother—foreclose a Second Amendment
challenge to his convictions for carrying a pistol without a license (CPWL) and
possession of an unregistered firearm (UF), which were obtained at a time when
the District’s ban on handguns held unconstitutional in District of Columbia v. Heller, 554 U.S. 570 (2008), was still in
place?
Holding 5: No.
“[T]he CPWL and UF charges did not punish a particular use of the pistol
beyond merely possessing and carrying it” (slip op. 55). Thus, if Jackson “had been able, prior to his
offenses here, to obtain a registration and license for his gun”—that is, if
the District’s unconstitutional ban on licensing and registering handguns had
not been in place—then “the government would not have succeeded in charging him
with CPWL and UF” (slip op. at 55).
Accordingly, the fact that he had used the gun for an unprotected (e.g.
criminal) purpose is irrelevant; the only relevant question for resolving
Jackson’s Second Amendment claims was whether, prior to his arrest, he would
have been qualified to register his handgun absent the total ban on registering
and licensing handguns. Because the
record did not speak to that question, Jackson was entitled to a remand under Plummer v. United States, 983 A.2d 323
(D.C. 2009), to determine whether he was “disqualified from registering the
handgun for constitutionally permissible reasons,” Magnus v. United States, 11 A.3d 237, 242-43 (D.C. 2011).
Of note:
·
On the bifurcation issue: The Court rejected the government’s argument
that because the trial court could have, within its discretion, denied
bifurcation altogether, then a fortiori it
“cannot have abused its discretion” in not requiring separate juries (slip op.
13). A judge who grants bifurcation must
still exercise his or her discretion properly to ensure that the way the
bifurcation proceedings are conducted do not prejudice the defendant.
·
On the expert testimony issue: The Court rejected a broad reading of Bethea that would bar all expert testimony on the issue of mens rea (other than through an insanity
defense). Rather, the Court held, Bethea bars only expert testimony going
to a diminished capacity defense. Thus,
it was “not decisive . . . that Mr. Jackson wanted to use expert testimony to
argue that he did not have the required mens
rea,” as the defense may still, under Bethea,
present expert testimony regarding the defendant’s mens rea when it supports “defenses that have nothing to do with a
claim of diminished capacity,” such as battered women’s syndrome or imperfect
self-defense (slip op. 30). In this
case, however, Jackson’s proposed expert testimony was “the kind of capacity
evidence at the core of the Bethea rule”
and thus inadmissible (slip op. 36).
·
On the Second Amendment issue: The Court distinguished Gamble v. United States, 30 A.3d 161 (D.C. 2011) (holding that the
defendant’s CPWL conviction was not unconstitutional because he carried his gun
concealed and “there is no Second Amendment right to carry a concealed
weapon”), noting that it was “clear from the trial judge’s ruling in Gamble . . . that the conduct being
punished there actually was the concealed carrying of the pistol,” (slip op.
55), whereas here Jackson was being punished only for his “failure to make his
gun possession legal,” i.e., his lack of a registration and license (slip op.
57).
How to use:
·
Insanity cases: Jackson
analyzes in some depth a number of important issues that arise in cases
involving insanity defenses. If you have
a case, either at trial or on appeal, involving an insanity defense, it would
behoove you to give Jackson a close
reading.
·
For appellate practitioners: Jackson
rejected the government’s argument (on Issue 3) that the Bethea rule that experts can testify on the ultimate question of
causality was not “plain,” for the purposes of “plain error” review, because
there was some “conflicting language” in the cases on the issue—the Court found
that the language the government cited was not “truly conflicting” (slip op. at
38). Thus, Jackson might be useful in plain error cases where the government
makes a similar “conflicting language” argument.
·
Second Amendment cases: One of the government’s go-to arguments in
Second Amendment cases is that the defendant’s as-applied Second Amendment
challenge fails because some aspect of his conduct (e.g., the manner in which
he carried the weapon, the use he made of it, etc.) was “not constitutionally
protected”—even though the statutes under which the government is prosecuting
him have nothing to do with that fact. Jackson
exposes the fallacy of that type of argument: if the government prohibited
Jackson from registering and licensing his handgun for a constitutionally
impermissible reason, then it is unconstitutional to punish him for not having
a registration or license, regardless of how he ultimately used the gun (e.g.,
whether he used it for self-defense or to commit an assault). Jackson
will thus be very helpful to rebut any argument by the government that the
defendant loses his Second Amendment challenge to a weapons possession statute
was not “constitutionally protected”—Jackson’s Second Amendment rights could be
violated notwithstanding that he used his gun to commit a murder. CM.
