Justia Federal District Court Opinions

Petitioner-Appellant Eugene Gall ("Gall") appeals the denial of his petition for habeas corpus challenging his conviction and death sentence for the rape and murder of a young girl in 1978. There is little doubt that Gall committed the acts in question. Instead, the central issue contested at trial was his mental state at the time of the killing. The case is further complicated by the numerous errors of constitutional magnitude that Gall claims occurred during his trial and appeal, as well as by long-standing confusion regarding the meaning and role of extreme emotional disturbance in Kentucky law. We conclude that Gall's trial, conviction and appeal contravened fundamental constitutional tenets. We are therefore compelled to REVERSE the district court's denial of habeas relief and REMAND for a conditional granting of the writ.

OVERVIEW

This is indeed a tragic case. The primary tragedy is that a young girl's life was taken in the most cruel and grisly fashion. It is also evident that Eugene Gall was the man who cut her life short. And naturally, the death and Gall's culpability engendered an understandably outraged and angry public as well as a prosecution determined to convict. In these situations, it is a court's duty to ensure that amid the tragedy, anger and outrage over hideous acts perpetrated, a fair and constitutional trial takes place. Constitutionally fair trials do not occur whenever a judge, jury and litigants go through the formal process of presenting arguments and examining witnesses. For a trial to be constitutionally sound requires far more: it is a trial where the prosecutor must prove all elements of a crime beyond a reasonable doubt in order to convict; where the prosecutor adheres to certain rules of conduct that guarantee a fair trial and a properconsideration of the defendant's theories and supporting evidence; where the jurors consider only evidence adduced by the parties and that a defendant has had an opportunity to rebut; and where a defendant enjoys the right to cross-examine adverse witnesses. When a state contemplates imposing the ultimate penalty, a constitutional trial requires jury selection procedures that avoid seating a jury predisposed to a death sentence, and also allows each individual juror to give effect to any mitigating evidence. It follows then that the issues raised do not lend themselves to summary treatment.

After painstakingly reviewing each of the issues raised and the extensive trial record, and minutely examining the relevant governing authorities, we agree with Gall that substantial errors occurred. The key issues contested at trial that we treat below involved Gall's mental condition, and specifically whether he was competent to stand trial, whether he was legally insane at the time of the crime, and whether he was under extreme emotional disturbance when he committed the crime. Unfortunately, an array of complicating circumstances--high publicity, Gall's own actions, trial court mistakes, overzealous prosecutorial tactics combined with inexcusable oversights, and poor defense advocacy at various stages--introduced errors into both the guilt and penalty phases of Gall's trial, as well as into his direct appeal in the state courts. Although we reject a number of Gall's arguments, we find some of the errors to have been sufficiently egregious so as to violate fundamental constitutional rights and protections.

On April 27, 1978, a Boone County grand jury indicted Gall for the rape and murder of Lisa Jansen. In a two-phase trial, the Commonwealth presented considerable evidence that Gall committed the killing, so Gall's mental state at the time of the crime became the trial's central issue. On September 30, 1978, the jury found Gall guilty of murder while engaged in the commission of rape. Finding no mitigating circumstances, the jury recommended the death penalty on October 2, and the trial court entered judgment accordingly on October 6.

Gall directly appealed the conviction on numerous grounds, but the Kentucky Supreme Court affirmed his conviction. See Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980) (Gall I). Gall's petition for a writ of certiorari was denied on March 9, 1981. See Gall v. Kentucky, 450 U.S. 989 (1981). Gall subsequently sought post-conviction relief in state court through a RCr 11.42 motion, but the Kentucky Supreme Court denied his various claims for collateral relief. See Gall v. Commonwealth, 702 S.W.2d 37 (Gall II). In July 1986, Gall filed a habeas corpus petition with the District Court of the Eastern District of Kentucky, raising twenty-five assignments of error. The magistrate recommended that the petition be dismissed, and on January 23, 1991, the district court denied the petition. On March 19, 1991, the district court denied Gall's motion to alter or amend that judgment. Gall appealed this denial on April 18, 1991.

The Kentucky Supreme Court provided a detailed account of the facts at issue:

At about 7:35 a.m. on April 5, 1978, Lisa Jansen, a 12-year-old schoolgirl, left her home in suburban Cincinnati, Ohio, for school. She was missed very shortly thereafter when she failed to arrive at the home of a friend she had planned to meet on the way and it was ascertained that she had not gone directly to school. At about 9:25 a. m. that morning Mrs. Connie Puckett, while driving her automobile along Kentucky Highway 16 from Verona, Kentucky, toward her home in Walton, Kentucky, noticed a red jacket lying on the side ofthe highway near the intersection of Stephenson-Mill Road. She stopped and retrieved it, thinking that probably it belonged to one of the students attending the elementary school at Verona. She was positive that the jacket had not been there when she passed the same place a few minutes earlier on her way to Verona. Upon resuming her trip homeward she observed an open schoolbook lying in the road, stopped and picked it up. It bore the name of Lisa Jansen, and when Mrs. Puckett arrived back in Walton she telephoned the school at Verona. The school principal advised her that no one by the name of Lisa Jansen was enrolled there, but later in the day he called back and told Mrs. Puckett that a television newscast had reported a Lisa Jansen as missing. Mrs. Puckett then reported her discovery of the jacket and schoolbook to the Cincinnati police.

The distance from Lisa's home in Ohio to the Kentucky state line at Cincinnati was 10.9 miles, and from the state line southward via Interstate 75 to the place near Stephenson-Mill Road where her body was found the next morning is 22.6 miles. Gall resided at Hillsboro, Ohio, about 45 miles the other side of the Jansen home.

At about 10:15 a. m. on April 5, 1978, a man later identified as the appellant, Gall, entered a small grocery store at the crossroads village of Gardnersville, 17 miles or so by public roads from the vicinity of Stephenson- Mill Road (which consists of a loop leading off and then back to Highway 16), and robbed the storekeeper and her customers at the point of a .357-gauge magnum stainless-steel revolver. The storekeeper, who was familiar with this type of weapon, observed from the exposed portions of the magazine that it was loaded with hollow-point cartridges. As soon as the robber left, she telephoned the local headquarters of the Kentucky State Police and reported the incident. Within a matter of minutes Gall was encountered by Detective Joe Whelan, who turned around and followed, and then by Trooper Gary Carey, who had alighted from his cruiser and was attempting to block the highway. As Carey signaled the driver to halt, Gall shot him once, got out of the Ford and shot him again, and then sped onward with Whelan emptying his gun into the rear of the fleeing car. Almost immediately other police officers took up the chase, and Gall was finally brought to bay when he attempted to make a U-turn in the town of Dry Ridge and one of the troopers rammed his cruiser into the Ford. The .357 revolver was lying on the floor of the Ford. Also on the floorboard of the Ford automobile the officer found a cigar box and $112.88, the money taken at the store in Gardnersville. Gall had the further sum of $42.84 on his person. Subsequent laboratory tests established that a bullet removed from Trooper Carey's person had been fired from the revolver found in Gall's automobile.

Shortly following his arrest Gall, by reason of his police record, became a suspect in connection with the disappearance of Lisa Jansen. In 1970 he had been charged with several counts of rape and armed robbery in southern Ohio, had been found mentally incompetent to stand trial, and had spent some 19 months in a mental institution at Lima, Ohio, after which he entered a plea of guilty to those charges and spent five years in a state penitentiary at Lebanon, Ohio. He was 31 years of age at the time of Lisa Jansen's murder.

Gall I, 607 S.W.2d at 100-01. After his arrest and throughout the trial, Gall indicated to his lawyers and doctors that he remembered the road block, car chase, and shooting the state trooper. Yet he claimed that he could not recall his actions or whereabouts for much of the morning prior to those incidents. The period covered by his purported amnesia coincided with the time of Lisa Jansen's killing.

Because Gall challenges numerous aspects of his trial, we will describe in detail the most important elements of that proceeding before addressing his arguments.

The question of Gall's competency to stand trial emerged repeatedly throughout pre-trial proceedings and the trial itself. The day after Gall was arraigned and indicted, the trial court appointed Dr. Robert Noelker, a clinical psychologist, to assess Gall's competence to stand trial. Simultaneously, the Commonwealth hired Dr. Lee Chutkow, a psychiatrist, to determine Gall's legal competence. Dr. Noelker first examined Gall on April 13, 1978. After his appointment by the court, he continued to examine and observe Gall up to and throughout the fall trial. Dr. Chutkow examined Gall on April 30, 1978.

Dr. Noelker presented his views on Gall's competence at a hearing on May 26, 1978. First, Dr. Noelker reported that intelligence tests showed Gall's verbal intelligence to be "in the extreme high end of superior range of development." J.A. at 872. Other tests showed Gall to be "a severely disturbed, emotionally disturbed individual," with a severe "schizophrenic paranoid type" personality disorder--the most severe psychological disorder that can be diagnosed. J.A. at 873-74. Nevertheless, Dr. Noelker concluded that due to Gall's remission from his disorder, he was "absolutely convenced" (sic) that he was competent to stand trial. J.A. at 875. At the hearing, Dr. Noelker also testified that Gall claimed to have no recollection of his activity at the time of the murder. He further stated that such amnesia is rare in personality disorders of Gall's type, but that he had not yet concluded whether Gall had been in an amnesic state for the period in question. The Commonwealth placed into evidence two reports by Dr. Chutkow, who also concluded that he was legally competent. J.A. at 1537. Both Dr. Chutkow's report and Dr. Noelker's testimony described a joint attempt to assess the veracity of Gall's claim of amnesia. When they attempted to perform the required procedure, Gall refused, claiming he was a prisoner of war. After the hearing, the trial court issued an order finding Gall competent to stand trial.

On September 13, 1978, the trial court held another pre-trial hearing on Gall's competence. Dr. Noelker again stated that Gall "was definitely competent and has been on every occasion that I have seen him." J.A. at 904. He noted, however, that Gall was "less together" and "more anxious" on recent visits than he had been previously. J.A. at 904.

On September 23, 1978, after several days of voir dire, Gall informed the trial court judge that he desired to "take a more active role in [his] defense as far as questioning and cross-examining [] witnesses." J.A. at 635. In a hearing outside of the jury's presence, Gall stated that he understood he would jeopardize his insanity defense by taking part in the trial. Dr. Noelker testified that although he believed Gall remained competent, recent developments--primarily Gall's desire to represent himself--were bringing Gall "very close" to incompetency due to an inability to "assist counsel rationally in preparing and carrying out his own defense." J.A. at 910.

On observing Gall's behavior at trial, Dr. Noelker notified Gall's counsel that he believed Gall was no longer competent. The trial court once again called a hearing, where Dr. Noelker testified that Gall was no longer "capable of rationally participating in his own defense and/or assisting his attorneys in preparing or conducting his defense." J.A. at 915. He concluded that Gall "ha[d] disassociated himself from this trial and [] is participating in it much more as the attorney than the Defendant," J.A. at 915, adding that Gall's appearance of competence was "deceiving." J.A. at 918. Although he had an "excellent" ability to understand the proceedings takingplace and the seriousness of their potential consequences, he did not "appreciate them relative to himself" because he now believed he was a defense attorney. J.A. at 921. Recent psychological tests confirmed this finding of incompetence, Dr. Noelker stated.

At this hearing, Gall explained to the trial judge that he did not agree with his counsel's "insanity only" defense strategy, and requested that the trial continue. He believed the best trial approach was to challenge the circumstantial evidence against him, creating a reasonable doubt as to his guilt. J.A. at 926, 930. The trial judge tentatively concluded that Gall was "extremely capable of assisting his counsel." J.A. at 936. Nevertheless, he ordered another psychiatrist to examine Gall that evening.

The following day, Dr. Kenneth Lanter, a psychiatrist, testified that he found Gall to be "normal" and able to "participate at any degree [in] his defense." J.A. at 842. Specifically, Dr. Lanter found that Gall appreciated his available legal defenses (including the insanity defense); understood the roles of the judge, lawyers and jurors in the trial; appreciated the seriousness of the proceedings and possible penalties against him; and exhibited above-average intelligence. J.A. at 841-45. After hearing this testimony, the trial judge once again concluded that Gall was "qualified mentally and emotionally," was "capable of assisting his counsel and [wa]s able to participate rationally in his own defense." J.A. at 853. The trial proceeded accordingly.

As the district court found below, the Commonwealth's circumstantial evidence against Gall was "overwhelming." J.A. at 25. This evidence included: evidence placing Gall near the area where the victim's body was found around the time of the murder; ballistics tests from Gall's gun matching the bullets recovered from the bodies of Jansen and the police officer; red nylon carpet fibers from the car Gall was driving matching the red nylon fibers found on the victim's clothing; matching tire tracks from Gall's car and the tracks taken from the area where the victim's body was recovered; matching blood type between the semen stains on the front seat of petitioner's car and the samples from the victim's body; and a matching hair and blood type between a long hair recovered from Gall's car and the victim's hair.

Due to this strong evidence, the insanity defense and Gall's claim that he was under an extreme emotional disturbance at the time of the killing emerged as critical aspects of the trial. Dr. Noelker testified before the jury that Gall was legally insane on April 5. Dr. John Toppen, another psychiatrist, reached the same conclusion in a deposition entered into evidence. The prosecution rebutted this testimony by presenting a videotape and written transcript of Dr. Chutkow's testimony regarding Gall's mental condition. Arresting officers and eyewitnesses also testified that Gall appeared calm and "normal" when they observed him during and after the 10:15 a.m. store robbery in Gardnersville. Because these assessments form a crucial part of Gall's appeal, we will address them in detail.

First, Dr. Noelker testified before the jury that Gall suffered from a psychotic disorder--"the most severe type of personality disorder that we know." J.A. at 956. Dr. Noelker testified that psychotic disorders of the type Gall suffered are "commonly characterized . . . by a loss of contact with reality[,] by an inability to control one's behavior or thinking, by delusions, hallucinations, by grandiosity and by inappropriate affect of the circumstances he is under." J.A. at 956. Dr. Noelker reached his conclusion after conducting personal examinations and interviews with Gall, examining his troubled past and extensive history of mental illness (including Gall's prior imprisonment and institutionalization),and performing an assortment of tests. An out-of-state firm that conducted a blind assessment of Gall's test results agreed with his finding, and recommended administering psychotic medicine. This bevy of data led Dr. Noelker to conclude that Gall suffered from chronic paranoid schizophrenia, J.A. at 969, and that he was extremely dangerous and likely to act in a similar manner in an uncontrolled environment. J.A. at 962. He further stated that this type of schizophrenia was incurable, although Gall's behavior only periodically exhibited "the manner [in which] he is accused of acting in this instance." J.A. at 969-70. Dr. Noelker also repeated the observations he had made to the trial court that Gall's behavior at trial exhibited the type of "disassociation [that] is commonly found in schizophrenia." J.A. at 978. Looking at Gall's history, Dr. Noelker also found that Gall had "blotted out his actual knowledge" of sexual crimes he had committed in 1970, consistent with his purported amnesia in this case. J.A. at 967-68. Considering all these factors, Dr. Noelker testified that he had "absolutely no question in [his] mind" that Gall lacked substantial capacity to conform his conduct to the requirements of the law on April 5. J.A. at 982. The criminal acts he committed were "the result of a severe personality disturbance." J.A. at 982. The severity, permanence and destructiveness of Gall's disorder also prompted Dr. Noelker to recommend that Gall "never be allowed to become a free member of [] society again." J.A. at 970.

Gall's counsel also introduced into evidence the deposition of Dr. John Toppen, a psychiatrist who examined Gall on September 25, 1978. Dr. Toppen concluded that Gall had "schizophrenia of a paranoid type and chronic in nature," which he categorized as "severe, certainly in terms of his dangerousness to others." J.A. at 1207-08. Dr. Toppen further testified that Gall was in a psychotic paranoid schizophrenic state when he committed the rape and killing on April 5, 1978, and therefore lacked capacity to conform his behavior to the requirements of the law. J.A. at 1211-12.

Testifying on behalf of the Commonwealth, Dr. Chutkow stated that he did not believe that Gall was suffering from acute paranoid schizophrenia on April 5. Dr. Chutkow also believed that Gall could at times comply his behavior to the requirements of the law. J.A. at 321. He stated that these conclusions were based on Gall's account of the events of April 5 that he remembered, which showed that "[h]e was thinking realistically" and showed none of the "classical symptoms of schizophrenia." J.A. at 319. Moreover, on the day of the examination, "[Chutkow] received nothing from him . . . indicative of schizophrenic symptoms, nor did he have them . . . after he was arrested and put in jail." J.A. at 319. Further, Dr. Chutkow believed that Gall's claim of amnesia was simply a conscious decision to remain silent about the hours preceding his arrest. J.A at 354.

The peculiar circumstances of Dr. Chutkow's testimony warrant close scrutiny. The record is clear that Dr. Chutkow testified by videotape rather than in open court without any explanation or showing that he was unavailable. The prosecution provided no reason for Dr. Chutkow's absence, and at oral argument for this appeal, stated only that it could not recall the reason Dr. Chutkow did not deliver live testimony. In fact, Dr. Chutkow gave the deposition on September 28 in the same courthouse where the trial took place.

Furthermore, Dr. Chutkow acknowledged that the purpose of his 90-minute examination of Gall months before had been simply to determine if Gall was competent to stand trial, and not if he was legally sane on April 5, 1978. J.A. at 325. As Dr. Chutkow himself stated at the trial deposition and a 1989 deposition conducted for this habeas petition, the brief, one-time session in which he assessed Gall's competency to stand trial in no way approximated the scope, duration and intensity of investigation required to assess a person'slegal sanity. Not only did Dr. Chutkow not believe he had investigated Gall's sanity, he did not consider himself to have been testifying as to Gall's sanity. J.A. at 411 ("I did not conduct an examination on his sanity."); J.A. at 412, 413, 414 ("I would have been quite aware if there was a question about sanity, and they didn't ask me that.'); J.A. at 413 ("I really was not aware that [sanity] was the background of the questioning."); J.A. at 426 (stating that it "would not have been proper to make an opinion on his sanity"); J.A. at 427 (stating that he believed the hearing's purpose was to determine competency); J.A. at 435-38 (denying that he stated Gall was insane).¹ Rather, consistent with the purpose of his examination of Gall in April, he believed the questions were aimed at eliciting his views on Gall's competency to stand trial, and nothing more.

This court reviews de novo a district court's refusal to grant a writ of habeas corpus. See McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996). We review the district court's findings of fact for clear error. See id. Given the complexity of this case, our review, of necessity, must be explicit. Primary or historical facts found by state courts are "presumed correct and are rebuttable only by clear and convincing evidence." Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). District court findings of fact based upon its review of state court records or written decisions receive plenary review. See Caldwell v. Russell, 181 F.3d 731, 735 (6th Cir. 1999). Determinations of federal law, or determinations involving mixed questions of fact and law, receive de novo review. See Mapes, 171 F.3d at 413. State court interpretations of state law generally bind the federal reviewing court. See Caldwell, 181 F.3d at 735-36.²

Before addressing the merits of his claims, we examine whether Gall has exhausted his state remedies, which he must do to gain habeas relief. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). With one exception, Gall presented the Kentucky courts with every constitutional claim that he raised before the district court and this Court. While Gall never asserted in state court the Confrontation Clause claim that he has argued below and before this Court, we agree with the Commonwealth that he procedurally defaulted on that claim because, without cause, he failed to bring it either on his direct appeal or state postconviction petition. See infra. Because the exhaustion requirement "refers only to remedies still available at the time of the federal petition . . ., it is satisfied 'if it is clear that [the habeas petitioner's] claims are now procedurally barredunder [state] law." Gray v. Netherland, 518 U.S. 152, 161 (1996) (citation omitted); see also Rust, 17 F.3d at 160 (stating that because "no remedy exists" in state court for petitioner's constitutional claim, "no exhaustion problem exists"). Thus, Gall has exhausted all state remedies available to him.

Gall challenges a number of aspects of the guilt phase of his trial. A. Legal Competence

Gall argues that his due process rights were violated because he was not competent to stand trial, having lacked sufficient contact with reality to understand the proceedings or cooperate with his attorneys. Gall further argues that the trial court violated due process by allowing him to represent himself at trial.

A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. See Demosthenes v. Baal, 495 U.S. 731, 725 (1990). A federal court may not overturn such determinations unless it concludes that they are not fairly supported by the record. See id. This deferential review applies when a habeas court reviews a state court's determination of competence. See id.

The Commonwealth argues that the record fairly supports a conclusion that Gall was competent to stand trial and to represent himself. We agree.

A criminal defendant may not be tried unless he is competent. See Godinez v. Moran, 509 U.S. 389, 396 (1993). To be competent for trial, a defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and must have "a rational as well as factual understanding of the proceedings against him." Id. (quoting Dusky v. United States, 362 U.S. 402 (1960)); see United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999); United States v. Murphy, 107 F.3d 1199, 1203 (6th Cir. 1997). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See 509 U.S. at 399. Cf. United States v. Harlan, 480 F.2d 515, 517 (6th Cir. 1973) (rejecting contention that "the test for competency to plead guilty should be more stringent than the test for competency to stand trial"). In addition to this competence requirement, a trial judge must also find that a defendant's waiver of counsel is knowing and voluntary. See Godinez, 509 U.S. at 399. This determination centers on whether the defendant actually understands the significance and consequences of a particular decision and whether the decision is uncoerced. See id. at 401 n.12; see also United States v. McDowell, 814 F.2d 245, 250 (6th Cir. 1987) (stating that judge's duty is to ensure that the right to represent oneself "be asserted by the accused with his 'eyes open'"). There is no constitutional requirement that such a determination be made through a formal hearing and inquiry. Rather, most circuits, including this circuit, adopt a nonformalistic approach, determining the sufficiency of the waiver from the record as a whole. See id. at 249.

The record supports the trial judge's conclusion that Gall was competent to stand trial. The court held a number of separate hearings solely devoted to the question of Gall's competence. At the May 26 hearing, both Dr. Noelker and Dr. Chutkow concluded that Gall was legally competent, and the trial court issued an order to that effect. On September 13, at another pre-trial hearing, Dr. Noelker again testified that Gall was competent.On September 23, after Gall asked to represent himself, Dr. Noelker again stated that he believed--but less decidedly so--that Gall was competent. Finally, after the trial had begun, Dr. Noelker informed the trial court that he believed Gall was no longer competent to stand trial due to a relapse in his condition. Hearing this conclusion, the trial judge questioned Dr. Noelker extensively. He then questioned Gall, discussing trial strategy and inquiring why Gall was resisting the insanity defense. From these discussions, the judge concluded:

[M]y own personal assessment is that Mr. Gall has exhibited quite clearly to me an understanding of the nature and the proceedings and the seriousness of the proceedings and my personal belief is that he is extremely capable of assisting his counsel.

J.A. at 936. Nevertheless, the judge ordered an additional examination of Gall by Dr. Lanter. Dr. Lanter testified the next day that he, too, found Gall fully competent to stand trial. J.A. at 840-53. After this testimony, the trial judge made his final decision that Gall was competent:

Gentlemen, having heard . . . the testimony of Doctor Lanter, the testimony of Dr. Noelker and of course the testimony of Mr. Gall, the Court is of the opinion that the Defendant, Mr. Gall[,] understands very well the nature and consequences of the proceedings against him, he is qualified mentally and emotionally and is capable of assisting his counsel and is able to participate rationally in his own defense.

J.A. at 853. From this record, it is clear that the trial court understood the Dusky standards for competence and carefully ensured that they were met. Because its conclusion is fairly supported by the record, we defer to it.

Likewise, we hold that the trial court undertook a satisfactory inquiry before permitting Gall to serve as co-counsel in his own defense. First, the court's determination that Gall was competent to stand trial also rendered Gall competent to waive his right to counsel. See Godinez, 509 U.S. at 397-98. Moreover, the court labored to ensure that Gall made this pivotal choice knowingly and voluntarily. After Gall requested permission to ask questions of witnesses, the trial judge held a hearing with both Gall and counsel. Under questioning by the judge, Gall stated the following: that he realized his was a murder trial and that "death is a possible penalty in this case;" that his counsel had explained to him that his "taking an active part in [the] trial could very well resolve in [his] loosing [sic] this trial;" that he understood that his "taking part in this trial could be very dangerous to any defense" that he may have had; that he understood that taking part in the trial was counter to the advice of his attorneys; and that he understood that his counsel had raised an insanity defense, and that his participation in the trial might prejudice that defense. J.A. at 636-37. After the trial began, the judge held another hearing outside the presence of the jury. Once again, both defense counsel and prosecution questioned Gall about his comprehension of the proceedings before him, their possible consequences, and the role of all persons involved. Gall then explained that his decision to represent himself stemmed from a disagreement with his defense team as to trial strategy, and that he considered himself as capable as his attorneys at examining witnesses. J.A. at 645-47, 657-59. After hearing this testimony, the judge concluded:

[M]y impression is that Mr. Gall's choice or decision ... to take charge of his own case is made intelligently and competently and understandingly and knowingly. He certainly has been advised of the possible consequences and I feel confident that he understands that.

J.A. at 858.

Once again, we believe that the record shows that the trial court properly ensured that Gall actually understood the significance and consequences of his decision torepresent himself and that his decision was not coerced. See Godinez, 509 U.S. at 401 n.12. The trial court also warned Gall of the "dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta v. California, 422 U.S. 806, 835 (1975) (citation omitted). Although the decision to represent himself may not have been in Gall's best interest, the record fairly supports the conclusion that Gall was competent to make that choice, and that he did so knowingly and voluntarily.

Gall contends that his conviction violated due process under In Re Winship, 397 U.S. 358 (1970), because the Commonwealth did not establish beyond a reasonable doubt one element of murder under Kentucky law. Specifically, he argues that to show murder, the Commonwealth needed to prove an absence of extreme emotional disturbance beyond a reasonable doubt. Gall contends that the Commonwealth presented no evidence on that element, and that his conviction therefore violated due process. Moreover, he argues that when the Kentucky Supreme Court rejected this argument in Gall I, it violated due process by shifting the burden of proof on the element of emotional disturbance. We find both aspects of Gall's argument persuasive.

In reviewing an appeal of a state jury's factual finding on an element of a charged offense, this Court asks "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[T]he assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). The mere existence of sufficient evidence to convict defeats a petitioner's claim. See id.

Under Winship, due process is only satisfied if the prosecution proves every element of a charged offense beyond a reasonable doubt. See 397 U.S. at 364; see also Apprendi v. New Jersey, __U.S.__, 120 S.Ct. 2348, 2356, 147 L.Ed.2d 435 (2000) (stating that reliance on the reasonable doubt standard "'reflect[s] a profound judgment about the way in which law should be enforced and justice administered'")(quoting Winship, 397 U.S. at 361-62). While the fundamental rule of Winship is clear, the logical prior question is more complex: whether the ingredient in question is in fact an element of the criminal offense, implicating Winship. If it is such an element, then the state "may not shift the burden of proof to the defendant." Patterson v. New York, 432 U.S. 197, 215 (1977) (interpreting Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)); see also Carter v. Jago, 637 F.2d 449, 454 (6th Cir. 1980) ("[O]nce the elements of a crime are defined by the legislature, each element must be proven beyond a reasonable doubt by the State."). On the other hand, if an ingredient of a crime is not an element of the offense and does not negate an element, Winship is generally not implicated, and a state law can properly shift the burden of proving that factor onto the defendant. See Patterson, 432 U.S. 197 at 210 (stating that a state need not disprove all affirmative defenses beyond a reasonable doubt); see also Martin v. Ohio, 480 U.S. 228, 231-35 (1987)(upholding Ohio law shifting burden of proving self-defense, long determined by Ohio courts to be an affirmative defense, onto the defendant); United States v. McGhee, 882 F.2d 1095, 1098 (6th Cir. 1989) (concludingthat because firearm possession was a factor bearing on the extent of punishment, and not an element of the charged crime, Winship was not implicated).

The Winship-Mullaney framework therefore leaves a reviewing court with several duties. First, it must determine whether a given ingredient is an element of the criminal offense. See, e.g., Hoover v. Garfield Hgts. Mun. Ct., 802 F.2d 168, 173-74 (6th Cir. 1986) (examining whether the existence of a "lawful arrest" was an element of the crime "resisting arrest"). Generally, the principal task is to examine the state's definition of the required elements of a crime. See McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) ("[I]n determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive . . . ."); Patterson, 432 U.S. at 211 n.12 (stating that the application of Winship's reasonable doubt standard is "dependent on how a State defines the offense that is charged in any given case"); Hoover, 802 F.2d at 173 ("[I]n determining which facts must be proven to establish a given offense, we generally look to the state legislature's statutory definition of the offense.") (citation omitted). And of course, we defer to state courts' construction of those state laws in making such determinations. See Mullaney, 421 U.S. at 691 ("[S]tate courts are the ultimate expositors of state law.").³ Next, in looking at state law, we look to see "whether the State has defined the elements of the crime so as to presume a fact essential to guilt and then compelled the accused to negate that element of the crime." Jago, 637 F.2d at 455. Winship is violated when the state has shifted the burden of proof for an ingredient that it has defined as an element of the crime, or for a defense that negates a required element⁴. See Mullaney, 421 U.S. at 701-02; Jago, 637 F.2d at 455-56 (stating that "presumptions of an element are clearly unconstitutional").

Applying the Jackson standard of review, we conclude that Gall's due process rights have been violated. We do so because the Commonwealth's showing of the absence of extreme emotional disturbance ("EED")--an element of murder in Kentucky at the time --was so lacking that norational trier of fact could have found the required elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Moreover, in casting aside this argument in Gall I, the Kentucky Supreme Court violated the clear dictates of the Winship-Mullaney framework.

a.

Applying the Winship-Mullaney inquiry, we find that the absence of EED was an element of murder under Kentucky law for purposes of Gall's trial and appeal. Effective on January 1, 1975, Kentucky's new murder statute provided that a person is guilty of murder when:

(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime . . . .

Ky. Rev. Stat. Ann. § 507.020(1)(a) (emphases added).

In the cases that first addressed the new statute, the Kentucky Supreme Court plainly held that the absence of EED was an element of murder. Specifically, the court held without condition that a "failure to act under the influence of extreme emotional disturbance is an element of the offense of murder." Edmonds v. Commonwealth, 586 S.W.2d 24, 27 (Ky. 1979); see also Ratliff v. Commonwealth, 567 S.W.2d 307, 309 (Ky. 1978). Therefore, the court also held that "the prosecution carried the burden to satisfy the jury of the absence of extreme emotional disturbance." Ratliff, 567 S.W.2d at 309. In Ratliff and Edmonds, the Court applied its interpretation retroactively, reversing convictions and ordering new trials for acts that had occurred in 1976 and 1975, respectively. In Bartrug v. Commonwealth, 568 S.W.2d 925 (1978), a defendant objected to the trial court's including EED as part of the reasonable doubt jury instruction. The court rejected this challenge, stating that "[t]he legislature clearly intended the prosecution to bear the risk of non-persuasion" on EED, and that Bartrug's argument would shift the burden of persuasion onto the defendant. Id.at 926. "This we can not do because the language of the statute makes the Absence of 'extreme emotional disturbance' an essential element of the offense of murder." Id⁵.

With the statute and precedent in place, Gall's prosecutors understood their duty to show an absence of EED, announcing that they intended do so in the voir dire and attempting to do so in their closing argument. Equally telling, the trial court instructed the jurors of this burden, informing them that they must find beyond a reasonable doubt that "when the killing occurred, Eugene Gall was not acting under the influence of extreme emotional disturbance." J.A. at 1563⁶. The trial court also demonstrated that absence of EED was an element the prosecution was requiredto prove when it rejected defendant's directed verdict motion. J.A. at 1560.

Finally, the Kentucky Supreme Court in Gall I said nothing to undermine its clear statements from the two prior years that EED was an element of murder under the new statute. Indeed, the court noted several times that the Commonwealth shouldered the burden of proof on the element, that its burden entailed proof beyond a reasonable doubt, and that when a defendant has presented evidence of EED, a murder instruction was required to include the negating of EED. See Gall I, 607 S.W.2d at 108-09 & n.5.⁷ The following year, the court expressly reiterated its prior holdings, stating that "[t]he absence of 'extreme emotional disturbance' is an essential element of the offense of murder, and the legislature intended the Commonwealth to bear the risk of nonpersuasion on this element of mitigation." Henley v. Commonwealth, 621 S.W.2d 906, 908 (Ky. 1981).

This interpretation was consistent with the text of the statute. First, the legislature included the absence of EED in its affirmative definition of murder. See Ky. Rev. Stat. Ann. § 507.020; cf. Allen v. Redman, 858 F.2d 1194, 1199 (6th Cir. 1988)(stating that "[s]anity is nowhere mentioned in [Michigan's] definition" of assault with intent to murder). Moreover, the legislature made clear in several other ways that the absence of EED, so prominently included in the affirmative definition, was not a technical defense to murder that the statute required defendants to prove. First, pursuant to Winship, the statute provides that "[t]he Commonwealth has the burden of proving every element of the case beyond a reasonable doubt," but that this "does not require disproof of any element that is entitled a 'defense,'" Ky. Rev. Stat. Ann. § 500.070; notably, the statute does not list absence of EED as such a defense. See Ky. Rev. Stat. Ann. §§ 501.070-.090 & 503.020 (listing different types of mistake, duress, intoxication and justification as defenses). Gall I itself stated that EED was not a "'defense' within the technical meaning of that term as used in the Kentucky Penal Code," even if evidence of EED operated as a defense in that it mitigated murder to manslaughter. 607 S.W.2d at 108. Similarly, the statute also states that "[t]he defendant has the burden of proving an element of a case only if the statute which contains that element provides that the defendant may prove such element in exculpation of his conduct." Ky. Rev. Stat. Ann. § 500.070(3). Yet again, the statute does not include absence of EED as an instance where a defendant may prove exculpation. See, e.g., Ky. Rev. Stat. Ann. § 504.020(3) (providing that a defendant may show legal insanity to exculpate conduct). Thus, both in its description of the elements of murder and in not identifying EED as a defense or element of exculpation as defined therein, the statute established that absence of EED was an element of murder.

We further note that the Kentucky statute was unique among those that incorporated the Model Penal Code's formulation for EED. Statutes introduced EED in one of three ways. First, a number explicitly described EED as an affirmative defense to first degree murder. See Conn. Gen. Stat. § 53a-54a; Haw. Rev. Stat. § 707-702(2); Mont. Code Ann. § 45-5-103; N.Y. Penal Law § 125.27(2); Or. Rev. Stat. § 163.115. Others provided EED as a mitigatingcircumstance and as part of their definition of manslaughter, but did not mention EED in their definition of murder. See Ark. Code Ann. §§ 5-4-605 & 5-10-104; Del. Code Ann. §641; N.H. Stat. Ann. § 630:2, Utah Code Ann. § 76-5-205.5. This is how the Model Penal Code proposed it be introduced. See Model Penal Code § 210.3(1)(b). North Dakota introduced EED as a circumstance mitigating murder, class AA felony, to murder, class A felony. See N.D. Cent. Code § 12.1-16-01. Additionally, some states explicitly placed the burden on defendants to prove EED by a preponderance of the evidence. See, e.g., 11 Del. Code Ann. § 641. No statute other than Kentucky's incorporated the Model Penal Code formulation for EED directly into its definition of murder without also stating there or elsewhere that it was an affirmative defense⁸.

b.

Despite the judge's instruction that the government needed to show the absence of EED beyond a reasonable doubt and the jury's verdict that he was guilty, Gall maintains that the prosecution failed to adduce evidence in support of the "absence of EED" element, and that the Kentucky Supreme Court applied an unconstitutional standard in reviewing this sufficiency claim. After closely scrutinizing the record, we must agree.

Even under Jackson's highly deferential standard of review for sufficiency of the evidence, we find that the Commonwealth did not meet its burden of showing an absence of EED beyond a reasonable doubt. First, Gall made an affirmative showing of EED. Although it would be almost ten years before the Kentucky Supreme Court would precisely define EED, cases preceding Gall's trial had provided that a showing of a severe psychotic disorder was sufficient to establish EED. See, e.g., Edmonds, 586 S.W.2d at 26-27 (finding evidence of EED due to defendant's "bizarre manner" resulting from psychoneurotic condition and medication); Ratliff, 567 S.W.2d at 309 (concluding that evidence of EED possibly existed due to testimony that the defendant was "very likely psychotic"); see also McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986) (overruling holding in Ratliff that mental illness, "standing alone," is sufficient to establish EED); Henley, 621 S.W.2d at 909 (stating that both Ratliff and Edmonds found EED instructions necessary due to testimony about defendants' respective mental illnesses).⁹ Gall I did not overrule or amend Ratliff and Edmonds on this point, but accepted their central premise. See 607 S.W.2d at 109 (noting that chronic paranoid schizophrenia had been characterized as an extreme emotional disturbance in the record); id. (assuming "that a mental disorder, whether or not it amounts to legal insanity, may constitute a reasonable 'explanation or excuse' for extreme emotional disturbance")¹⁰.

Moreover, we find that Gall clearly met the requirement of Ratliff and Edmonds, having introduced the testimony of Dr. Noelker and Dr. Toppen that he suffered from a severe psychotic disorder, and, specifically, from chronic paranoid schizophrenia. Moreover, Dr. Noelker stated explicitly to the jury that Gall was in a state of "extreme emotional disturbance" on April 5. J.A. at 982-83. Dr. Noelker's conclusions were based on Gall's history of severe mental disorders and the tests and interviews Dr. Noelker had administered since the crime, as well as circumstantial evidence of Gall's "aggressive and very bizarre behavior" on the day of the murder. J.A. at 1014. For example, Dr. Noelker stated, "I [can] not explain Mr. Gall's behavior on that morning in question . . . except in terms of extreme mental disorder. . . . [T]his defendant had no reason to [] rush helter-skelter about, throwing clothes, belongings, books and whatever all over the highway." J.A. 1014-15.

Meanwhile, the Commonwealth failed to rebut this showing of EED--in fact, it does not even claim to have done so in the brief it filed with this Court. Dr. Chutkow was the state's prime witness on Gall's mental state. To begin with, the gist of his testimony was that Gall was competent to stand trial--indeed, the sole purpose of his only examination of Gall had been to determine Gall's competency. In Buchanan v. Kentucky, 483 U.S. 402 (1987), all nine members of the Supreme Court recognized the fundamental distinction between an examination into a defendant's competency to stand trial and his mental condition at the time of the criminal acts in question. See id. at 423 n.20 (noting that a defendant's legal competency was a "very different issue" from his mental condition bearing on EED); id. at 431-32 (noting that an examiner's examination for the purpose of assessing a defendant's mental condition in the "here and now" was irrelevant to the defendant's mental condition when the killing occurred) (Marshall, J., dissenting). Dr. Chutkow also stated his belief that Gall did not have one particular form of paranoid schizophrenia on the day of the crime and could at times appreciate the criminality of his conduct. J.A. at 308-56, 1535. But Dr. Chutkow at no point disputed the showing that Gall suffered from a psychotic disorder sufficient to constitute an EED. In fact, for several reasons, his testimony failed to rebut in any way the evidence that Gall suffered from EED while committing the killing.

First, Dr. Chutkow's testimony was narrow, failing to overcome crucial statements made by Dr. Noelker and Dr. Toppen. For example, he stated only that he could not find symptoms of acute paranoid schizophrenia before the onset of Gall's claimed amnesia and that he believed that Gall was legally sane. He did not testify that Gall had no mental disorder whatsoever, nor that he did not suffer from an EED at the time of the killing. Indeed, Dr. Chutkow acknowledged that he could not rule out Gall having chronic schizophrenia--the very form that Dr. Noelker had diagnosed. J.A. at 334-36. He also acknowledged that Gall's behavior during his "POW incident" might suggest a variety of conditions, including depression, psychotic behavior, or disassociation, even if that behavior did not characterize acute schizophrenia. J.A. at 345. In his habeas deposition, Dr. Chutkow again emphasized the narrowness of his videotape testimony, stating: "I made no statement about him being insane. I said he only was not sufferingfrom acute schizophrenia just prior to the period of amnesia on the commission of the crime." J.A. at 438. But simply lacking acute schizophrenia did not rebut Gall's strong evidentiary showing that he was under an EED at the time of the killing.

Additionally, Dr. Chutkow stated several times that he had no basis to know Gall's mental state at the time of the killing. For instance, he stated that he had "no knowledge" as to Gall's mental state after the "time from which he claims amnesia," J.A. at 335-36; that he did not know Gall's condition for a "gap of approximately two or three hours," J.A. at 350-51; and that "[f]or a certain interval of time" before the murder, he did not know Gall's feelings, sensations or judgments. J.A. at 355. Importantly, Dr. Chutkow also acknowledged that because he had never considered the more extensive data that Dr. Toppen and Dr. Noelker examined, he could not challenge their conclusions that Gall suffered from chronic paranoid schizophrenia. J.A. at 320, 350-51. Finally, not only did Dr. Chutkow never contradict Dr. Noelker's statement that Gall suffered from EED in committing the killing (he was never asked a question on the presence or absence of EED), Dr. Chutkow expressly acknowledged that because Gall had a background of diagnosed schizophrenia, he "could have been" in a "state of exacerbation" at the time of the crime. J.A. at 352. In sum, none of Dr. Chutkow's statements countered Dr. Noelker's definite conclusions that Gall suffered from chronic paranoid schizophrenia and was under EED at the time of the killing. While Jackson instructs us to give the jury full responsibility to resolve extant conflicts in the testimony in the prosecution's favor, see 443 U.S. at 319, Dr. Chutkow's testimony failed to contradict the central aspects of Gall's showing of EED.

Nor do we think that the lay testimony adduced at trial was sufficient to create a conflict over Gall's showing of EED. The district court relied in part on the testimony of officers and witnesses present at the later robbery that Gall "appeared quiet, not excited, not nervous, and had steady hands and a normal voice" to conclude that the Commonwealth had introduced sufficient evidence on Gall's sanity. J.A. at 26. This included the testimony of one witness, John Wynn, that during the robbery, Gall seemed "nice [and] normal" and did not appear nervous. J.A. at 1287.¹¹ Although this Circuit does not apply a per se rule barring lay testimony from creating an issue of fact as to a defendant's state of mind, see United States v. Smith, 437 F.2d 538, 540-41 (6th Cir. 1970), we have long been skeptical of such lay testimony. In Smith, we stated that lay testimony as to mental state lacks probative value when a witness's "direct knowledge of the defendant is brief and superficial." Id. at 41. We also noted that

a statement that the witness never observed an abnormal act on the part of the accused is of value if, but only if, the witness had prolonged and intimate contact with the accused. . . . There is nothing to show that these witnesses had the capacity--as an expert might--to make valid psychological judgments on the basis of these relatively brief contacts.

Id. at 541 (internal quotation marks and citation omitted). In holding the State's lay evidence insufficient to raise a factual issue over Smith's sanity, the Smith Court reasoned that there was no indication that the lay witnesses were trained to make "the kind of psychiatric evaluations necessary to answer intelligently the questions" regarding sanity, and that there was also no evidence "to indicate that either of these witnesses, in observing appellant,was concerned with his sanity or competence." Id. at 540. Following similar logic, Kentucky courts have long allowed lay witnesses to testify as to their opinion of a defendant's mental state, but have consistently emphasized the need for a sufficient basis on which that witness can form her opinion. See Brown v. Commonwealth, 934 S.W.2d 242, 248 (Ky. 1996)(noting longtime precedent that lay witnesses can testify as to a defendant's sanity when "'by association and observation [they] have had an opportunity to form an opinion as to the sanity of a person'") (quoting Abbott v. Commonwealth, 55 S.W. 196, 198 (Ky. 1900)); Wiseman v. Commonwealth, 587 S.W.2d 235, 238 (Ky. 1979)(describing the potential relevance of "lay witnesses testifying as to the customary conduct of an accused" in the jury's assessment of a defendant's mental state); Jewell v. Commonwealth, 549 S.W.2d 807, 811 (Ky. 1977) ("'The judgment of a person's intimate friends and acquaintances as to his soundness of mind is therefore always competent in cases of this character.'") (quoting Abbott, 55 S.W. at 198).

In this case, the lay evidence in question suffers shortcomings equivalent to that in Smith. First, the lay witnesses observed Gall not as he committed the crime in question, but as he committed a robbery at least one hour, and perhaps several hours, after the killing of Lisa Jansen. Second, these witnesses observed Gall for a matter of several minutes at most. As in Smith, their observation that he did not appear abnormal to them in those brief moments carries no probative weight as to the absence of EED. See 437 F.2d at 540-41; see also United States v. Burks, 547 F.2d 968, 970 (6th Cir. 1977) (stating that lay testimony that defendant did not appear "abnormal" by persons "who had very limited opportunity to observe" him had little value), rev'd on other grounds, 437 U.S. 1 (1978). Third, the Commonwealth introduced no evidence suggesting that any of these witnesses had the capacity to determine if Gall was either insane or under EED. Indeed, even if they believed he appeared "normal" on the surface, these witnesses clearly lacked the capacity to determine if Gall suffered from the type of disorder that Gall's expert witnesses diagnosed, or that he was under EED at the time of the killing several hours earlier.

Moreover, notwithstanding the fact that Dr. Noelker believed Gall's behavior after the killing was further evidence of both EED and insanity, the Commonwealth theorized at trial that because Gall was attempting to flee the scene of the killing, he must have been sane and not under EED. We rejected just this logic in a prior case, concluding that "'any fool faced with fear and foreboding can flee and hide. Such is the nature of even a wild beast.'" Stacy v. Love, 679 F.2d 109, 1214 (6th Cir. 1982) (citation omitted). Thus, flight alone does not amount to evidence of sanity or lack of EED.

Finally, we also do not find that the Commonwealth's cross-examination of Dr. Noelker elicited contradictions of his statements under direct examination. The Commonwealth asked a number of questions seeking to show that Dr. Noelker did not talk to key witnesses of Gall's behavior later on April 5, or examine other key pieces of information, before reaching his conclusions as to Gall's mental state. J.A. at 993-1001. But Dr. Noelker explained that those pieces of information were not necessary to his determination (no other witnesses testified that they were necessary), and that not even Gall's claimed amnesia prevented him from rendering an opinion based on the variety of other available data he had studied. J.A. at 1011, 1016, 1034. He proceeded to describe that data at great length. When the Commonwealth attempted to press Dr. Noelker as to whether he could truly pinpoint Gall's mental state at 8:00 a.m. on April 5, he responded that he was "as certain as I can be of anything in my profession.... As certain as you can be . . . that he was actually there...." J.A. at 1017. Thecross-examination ended with Dr. Noelker assuring the prosecutor that "any competent mental health professional who has reviewed all of the data that I reviewed could [] and should come to the same conclusion." J.A. at 1034.

Reflecting the weakness of its overall evidence, the Commonwealth's closing argument also failed to offer a viable argument regarding the absence of EED. It merely offered the erroneous proposition that the defense's failure to prove an insanity defense also meant that the prosecution had succeeded in shouldering its burden of proving the lack of EED. J.A. at 1590-91. When discussing the elements to be proved beyond a reasonable doubt, the prosecutor elaborated in detail on the abundance of evidence linking Gall to the murder. In contrast, the Commonwealth failed to point to any evidence showing an absence of EED--largely, it is clear, because the Commonwealth had presented none. J.A. at 1592-1604.

Thus, even when we make all inferences in the Commonwealth's favor, we can not conclude that a rational trier of fact would find an absence of EED beyond a reasonable doubt at the time Gall killed Lisa Jansen. At no point did the Commonwealth rebut Gall's showing that he suffered from chronic paranoid schizophrenia at the time of the killing. Neither did the Commonwealth counter Dr. Noelker's explicit statement that Gall was under EED when he committed the crime. Instead, not only did Dr. Chutkow state that he had no basis to contest Dr. Noelker's findings, but he acknowledged that other disorders, including chronic paranoid schizophrenia, were distinct possibilities, and that Gall could have been in a state of exacerbation. Neither did the one-time, surface-level observations by the lay witnesses create a dispute over Gall's mental state. Because even when viewing the evidence in a light most favorable to the Commonwealth, a rational trier of fact could not have found one of the elements of murder beyond a reasonable doubt, Gall's conviction for murder violated due process.

c.

Finally, we agree with Gall that when faced with this question, the Kentucky Supreme Court read the Commonwealth's murder statute in a way that violated Winship. On his direct state appeal, Gall alleged that the Commonwealth had not satisfied its burden of proof on the absence of EED. The Gall I Court responded that there was "not a shred of evidence to suggest that [Gall] was acting under the influence of an emotional disturbance . . . , except for the evidence that he suffered from a mental illness from which the jury could have found, but did not find, that he was insane." 607 S.W.2d at 109. Although before Gall I, the Kentucky Supreme Court had held that a showing of mental illness could comprise evidence of EED and that the absence of EED was an element of murder that the Commonwealth must disprove, see, e.g., Ratliff, 567 S.W.2d at 309, the Gall I Court held that Gall's evidence was not sufficient to place that burden on the Commonwealth.

There is much to be said for the proposition that an emotional disturbance inhering in a mental illness is not the kind of an emotional disturbance contemplated by the statute . . . . Assuming, however, that a mental disorder, whether or not it amounts to legal insanity, may constitute a reasonable "explanation or excuse" for extreme emotional disturbance, it was incumbent upon the trial court to require the negating of that factor in its instruction on murder, which was done. That is not to say that once the issue is raised (by evidence sufficient to ground a reasonable doubt) the Commonwealth must meet it with countervailing evidence. Unless the evidence raising the issue [of emotional disturbance] is of such probative force that otherwise the defendant would be entitled as a matter of law to an acquittal on the higher charge (murder), the prosecution is notrequired to come forth with negating evidence in order to sustain its burden of proof. Otherwise it would never be possible to convict a defendant of murder if there were no eyewitnesses and if, for example, he testifies that he acted in self-defense, or was intoxicated out of his mind, or was acting under the influence of extreme emotional disturbance.

607 S.W.2d at 109 (emphasis added) (citation omitted). In other words, the Court announced, even though Gall presented evidence sufficient to require a jury instruction that the absence of EED had to be established beyond a reasonable doubt, the prosecution did not in fact have to prove its absence beyond a reasonable doubt.

Given that the absence of EED was an element of murder under Kentucky law--a principle of law that Gall I accepted and that the Kentucky Supreme Court would not overrule for several years--this portion of Gall I directly violates Mullaney and In re Winship. The Gall I regime shifted the burden to defendants to produce evidence of EED "of such probative force that . . . the defendant would be entitled as a matter of law to an acquittal." Id. Without that showing, a defendant is presumed to have acted in the absence of EED. Stated differently, the "absence of EED" element drops out of the state's required burden unless a defendant affirmatively shows EED, even if the defendant has presented sufficient evidence to raise a reasonable doubt about the absence of EED. This is exactly the type of burden-shifting proscribed by Mullaney; indeed, the two cases are markedly similar. In Mullaney, Maine had affirmatively shifted the burden of proof of "heat of passion" to the defendant--requiring that malice aforethought "was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." 421 U.S. at 686. The Court found this to be a clear Winship violation. We find that the Gall I Court, by requiring a defendant to offer evidence "of such probative force that otherwise [he] would be entitled as a matter of law to an acquittal on the higher charge" places an equally weighty burden on that defendant, and thus violates due process.

Moreover, the Mullaney Court rejected several of Maine's arguments with reasoning that is relevant to this case. First, it stated that the proof of an element that distinguishes between murder and manslaughter implicates Winship as much as an element that distinguishes guilt from innocence. See id. at 697-98. Second, it rejected arguments identical to those made by the Gall I Court that the burden-shifting is necessary because of the difficulties the prosecution faces in "proving a negative":

No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.... Nor is the requirement of proving a negative unique in our system of criminal jurisprudence. Maine itself requires the prosecution to prove the absence of self-defense beyond a reasonable doubt. . . . Satisfying this burden . . . is identical to the burden involved in negating the heat of passion on sudden provocation. Thus, we discern no unique hardship on the prosecution that would justify requiring the defendant to carry the burden of proving a fact so critical to criminal culpability.

Id. at 701-02 (citations omitted).

A close look at Patterson--in many ways the mirror image of this case--further illustrates the Mullaney violation here. In Patterson, the Court reviewed the way in which New York had adopted the same Model Penal Code EED provision into its penal law. Like most other states, see supra n. 3, the New York code explicitly provided that EED was an affirmativedefense to murder, and then tasked defendants with proving EED by a preponderance of the evidence. See N.Y. Penal Law § 125.27(2); 432 U.S. at 205-06. Because the state had not deemed EED an element of the crime, and because a showing of EED did "not serve to negative any facts of the crime which the State is to prove in order to convict of murder," New York could permissibly shift the burden onto defendants to show EED. Id.at 206-07. The Court explained,

in revising its criminal code, New York provided the affirmative defense of extreme emotional disturbance ..., but it was willing to do so only if the facts making out the defense were established by the defendant with sufficient certainty. The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult . . . .

Id. at 207. In stark contrast, Kentucky legislators established EED as an element of murder, and "clearly intended the prosecution to bear the risk of non-persuasion." Bartrug, 568 S.W.2d at 926. The very logic allowing the New York statutory scheme to pass constitutional muster in Patterson thus renders unconstitutional the burden-shifting regime of Gall I.

Finally, although the Commonwealth could argue (it does not do so here) that the Gall I regime comports with the statement in Mullaney that the government only bears a burden of proof "when the issue is properly presented in a homicide case," 421 U.S. at 704, that argument would ring hollow. The Court elaborated in Hankerson v. North Carolina that Mullaney "does not forbid States from requiring the criminal defendant to present at least some evidence to raise a factual issue with respect to heat of passion or self-defense." 432 U.S. 233, 237 n.3 (1977) (emphasis added). But this requirement of "some evidence" is far less onerous than the high burden of proof Kentucky placed on defendants in Gall I. The Gall I Court itself made this distinction clear, rejecting Gall's proposition that once the issue is raised "by evidence sufficient to create a reasonable doubt," the Commonwealth must rebut it with countervailing evidence. Rather, only when the evidence raising the issue "is of such probative force that otherwise the defendant would be entitled as a matter of law to an acquittal on the higher charge (murder)" must the prosecution negate the evidence to sustain its burden of proof. 607 S.W.2d at 109. Thus, while the court found Gall's evidence sufficient to merit an instruction on the need to negate that factor, it was insufficiently weighty to require the Commonwealth to rebut the factor as part of its burden of proof. See id. This higher threshold of Gall I directly contravened the distinction Mullaney drew between merely requiring that a defendant "present some evidence with respect to the fact at issue" and requiring that "he must affirmatively establish that fact." See 421 U.S. at 1891 n. 31 (emphasis added).

In short, the regime the Gall I Court constructed in response to Gall's evidentiary review was itself constitutionally infirm under Mullaney. The court should have adhered to Kentucky law at the time and addressed head-on whether the prosecution met its burden to show the absence of EED beyond a reasonable doubt. In averting this review, the Kentucky Supreme Court violated due process.

In contrast to even the prosecutor's and trial judge's reading of Kentucky law at the time, not to mention the Kentucky Supreme Court's clear interpretation of the murder statute, Judge Guy's dissent contends that the absence of EED was not an element of murder, and that our conclusion that it was "is most clearly erroneous." Post at 114. It also argues that we "compound[]" our error by finding thatmental illness equates with EED for purposes of the Kentucky murder statute. See id. After carefully considering the dissent's points and underlying reasoning, we respectfully disagree with both assertions. Indeed, we find the dissent's reasoning to rest on an anachronistic reading of Kentucky law--based on the Kentucky Supreme Court's explicit and non-retroactive re-interpretation of the Commonwealth's murder statute in the years after its Gall I decision.

i)

At the risk of repeating our earlier discussion, we first address the dissent's contention that negating EED was not an element of murder. The dissent explains that "nothing in the statute suggests that negating extreme emotional distress is an element of the crime of murder," a proposition we believe is belied by the text of the statute, its clear variation from the other states that adopted the same Model Penal Code murder provision, and, most importantly, the binding interpretation of the highest court in the Commonwealth up until 1985. Post at 115. Further, the dissent points to cases such as Wellman v. Commonwealth, 694 S.W.2d 696 (Ky. 1985), Buchanan v. Kentucky, 483 U.S. 402 (1987), and Coffey v. Messer, 945 S.W.2d 944 (Ky. 1997) to argue that Kentucky applied a more refined analysis of EED, and that its absence was not an element of murder even at the time of Gall's conviction and appeal. Rather, EED comprises what the dissent terms a "'defense' or mitigation exception." Post, at 115. Third, the dissent attacks what it believes to be the illogical results of our reading of the law: namely, the "absurdity" of having to prove the absence of EED in all cases. While the modern treatment of EED is perhaps more logically sound and workable, we simply can not agree that the dissent's reading reflects the law applicable to Gall's case; indeed, the Gall I opinion itself did not apply the law the dissent describes. A thorough review of the evolution of Kentucky EED caselaw reveals this.

Following the Commonwealth's incorporation of the Model Penal Code language into its definition of murder in 1974, the first Kentucky Supreme Court cases to explore its meaning were Edmonds, Ratliff, and Bartrug. As stated supra, all three opinions stated without condition or exception that the failure to act under the influence of an EED was an element of the offense of murder. See, e.g., Edmonds, 586 S.W.2d at 27. This was evident from the "language of the statute," where "[t]he legislature clearly intended the prosecution to bear the risk of non-persuasion" on this element. Id. Under this reading, any showing of EED required the reading of that element as part of the murder instruction, as well as the reading of a first degree manslaughter instruction. See id. at 27. If the jury has a reasonable doubt "as to whether [a defendant] was acting under the influence of extreme emotional disturbance, it will not find him guilty of murder but shall find him guilty of first-degree manslaughter." Id. Gall I, as we explained supra, did not alter this reading, although it tasked defendants for the first time with presenting evidence "of such probative force that otherwise the defendant would be entitled as a matter of law to an acquittal on the higher charge." 607 S.W.2d at 109. Further, in 1981, the Kentucky Supreme Court still adhered to its earlier holdings that the absence of EED was an "essential" element of murder for which the "legislature intended the Commonwealth to bear the risk of nonpersuasion." See Henley, 621 S.W.2d at 908 (citing Bartrug, 568 S.W.2d 925 (1978)). Making the point as clear as possible, the court recited the definition of murder in a way that included absence of EED as a clear element: "Murder, under the statute, is an intentional killing where the defendant is not acting under the influence of extreme emotional disturbance." Id.; see also Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky. 1982)("KRS 507.020 defines murder as death caused by intentional orwanton conduct in the absence of extreme emotional disturbance."). Importantly, these cases also relied on passages of Gall I, indicating that the new Gall I burden-shifting regime coexisted with the continuing notion that absence of EED was an element of murder.

This interpretation would soon change. In Wellman, a 1985 case on which the dissent heavily relies, the Kentucky Supreme Court articulated in the plainest of terms that, prior to Gall, absence of EED had indeed been an element of murder, and that Gall had not formally changed that interpretation, although it had perhaps signaled that the change was imminent.

We are continually beset with arguments founded upon "extreme emotional disturbance" despite the articulation of its meaning and impact in [Gall I]. It is our opinion that the principal cause of this problem is the failure of this court, in Gall, to specifically overrule those portions of Ratliff, Bartrug and Edmonds [] which declare that the absence of extreme emotional distress is an essential element of the crime of murder and require the Commonwealth to prove such absence. . . . To the extent that such cases declare absence of extreme emotional distress to be an element of the crime of murder, they are expressly overruled.

Wellman, 694 S.W.2d at 697 (emphasis added). The court proceeded to explain that "[t]he presence of extreme emotional distress is a matter of evidence, not an element of the crime." Id. A year later, the court further explained that Wellman"clarif[ied] that absence of extreme emotional disturbance is not an element of the crime of murder which the Commonwealth must affirmatively prove." Matthews v. Commonwealth, 709 S.W.2d 414, 421 (Ky. 1986). Moreover, the United States Supreme Court, looking only at Wellmanand Gall in light of Wellman, concluded that EED was an affirmative defense, not an element of murder. See Buchanan v. Kentucky, 483 U.S. 402, 408 & 408 n.8 (1987). Later cases have more routinely labeled EED as a defense to murder, see, e.g., Foster v. Commonwealth, 827 S.W.2d 670, 678 (Ky. 1991), although the precise role of that defense still appears in flux¹².

This line of cases illuminates the flaw in the dissent's contention that the absence of EED was not an element of murder at the time of Gall I. Its reliance on Wellman is in error because that case explicitly overruled the cases holding that the absence of EED was an element of murder--and those were the very cases in place when Gall's trial and appeal occurred, and that Gall I and Henley left in place. Only in Wellman did the Kentucky Supreme Court establish that the absence of EED is not an element of murder, and as we explain infra, we can not apply that holding retroactively to Gall's conviction and appeal. Equally unavailing is the dissent's reliance on Buchanan, since that case relied on Wellman to conclude that EED was an affirmative defense. In sum, the dissent's conclusion that the absence of EED was not an element of murder is based on caselaw that postdated Gall's conviction and appeal, and, it appears, that resulted from the dramatic shift that Gall I triggered due to its clear Mullaney violation. The caselaw applicable to Gall's case was clear that the absence of EED was indeed an element of murder.

ii)

For similar reasons, we also respectfully disagree with the dissent's careful substantivedefinition of EED, and its requirement that a specific predicate provocation must trigger EED. Specifically, the dissent reads Kentucky law to have distinguished between EED and mental illness or disease that amounts to insanity. "The facts surrounding the murder are key to the extreme emotional disturbance defense. The facts surrounding defendant's mental disease or defect are key to the insanity defense." Post at 124. (emphasis added). According to the dissent, only when a predicate provocation¹³ is found to have triggered the killing must the prosecution negate a showing of EED. Again, while the dissent's conception may reflect the law in Kentucky today, this more refined definition is based on caselaw that developed well after Gall I, and that can not be applied retroactively to his case. Again, review of the evolution in Kentucky caselaw on the substantive definition of EED plainly illustrates this point.

First, however, it is important to understand the intent of the Model Penal Code framers when they introduced the concept of EED. The ALI Commentary explains that the "provision includes the common-law doctrine of provocation but is not so limited in its scope." ALI, Model Penal Code and Commentaries, § 210.3, at 53-54. How far the provision intended to move from the common law was less than clear, however. The Commentary itself acknowledged that it was moving into uncharted waters. The provision, it explained, "sweeps away the rigid rules that limited provocation to certain defined circumstances. Instead, it casts the issue in phrases that have no common-law antecedent and hence no accumulated doctrinal content." Id. at 61. "This development reflects the trend of many modern decisions to abandon preconceived notions of what constitutes adequate provocation and to submit that question to the jury's deliberation." Id. It further noted that when setting out that the reasonableness of the defendant's action be assessed from the viewpoint of a person in the actor's situation, "the word 'situation' is designedly ambiguous." Id. at 62. "There thus will be room for interpretation of the word 'situation,' and that is precisely the flexibility desired." Id. The ALI added that it sought for courts and juries to focus far more closely on mental infirmities:

[The provision] places far more emphasis than does the common law on the actor's subjective mental state. It also may allow an inquiry into areas which have been treated as part of the law of diminished responsibility or the insanity defense.

Id. at 54. In a separate publication, the Code's primary author echoed the ALI Commentary, stating that the new provision permitted a reduction to manslaughter "on the basis of a standard much broader than the concept of provocation as developed at the common law." Herbert Weschler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum. L. Rev. 1425, 1446 (1968). "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can." Id.

Given the intentional ambiguity of the Model Penal Code, states adopted different approaches in defining EED. Some added additional specificity within the statutes themselves. See, e.g., N.D.C.C. 12.1-16-01 (noting that "[a]n extreme emotional disturbance is excusable . . . if it is occasioned by substantial provocation, or serious event, or situation for which the offender was not culpably responsible"); N.H. Stat. Ann. § 630:2 (requiring "the influence of extreme emotional disturbance caused by extreme provocation"). Most states, however, left the ambiguous languageof the MPC unchanged, allowing courts to shape the precise meaning of EED. Several state courts read the new language to eliminate any provocation requirement, allowing certain showings of mental disease to be sufficient to show EED. The New York Court of Appeals, for instance, found that "tremendous advances made in psychology since 1881" had primarily led to the new EED defense. People v. Patterson, 347 N.E.2d 898, 908 (N.Y. Ct. App. 1976), aff'd 432 U.S. 197 (1977). Therefore, the common law provocation and immediacy prongs for the "heat of passion" defense were no longer required under New York law; rather, "[t]he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them." Id. at 907. This interpretation was a crucial aspect of the Supreme Court's affirmance of the Patterson case. See 432 U.S. at 206-07 (noting that New York's EED affirmative defense required a defendant only to show a "mental infirmity not arising to the level of insanity"). Connecticut also adopted Patterson's reasoning, holding that the defense "does not require a provoking or triggering event." State v. Elliot, 411 A.2d 3, 7 (Conn. 1979).

Faced with the ambiguity of the new murder statute,¹⁴ the Kentucky Supreme Court waited more than a decade before it developed a precise substantive definition of EED. At the time of Gall's trial it had yet to lay down a clear definition, and at the time of his appeal, it had stated merely "that we know it when we see it." Edmonds, 586 S.W.2d at 27. Despite this ambiguity, the early cases indicated that the court agreed with New York and Connecticut that certain mental impairments were sufficient to show EED, and that no additional showing of a triggering event was necessary.

The Court in both Ratliff and Edmondspointed to the respective defendants' psychological maladies as warranting EED instructions, failing to require the "triggering" event the dissent would demand. In Ratliff, the court stated that "[t]he record is replete with evidence of an emotional disturbance." 567 S.W.2d at 309. It immediately elaborated that "[t]wo expert psychiatrists testified that appellant suffered from schizophrenia-paranoid type. Both experts agreed that she was very likely psychotic at the time of the shooting and was unable to comprehend what was occurring." Id. The court then described the defendant's delusion about the circumstances around her, based on her own testimony that fellow townspeople, including the store clerk whom she shot, were conspiring against her. See id. The opinion further pointed out that Ratliff had been visiting a local care center for treatment of her mental condition for some time prior to the shooting. See id. While the dissent suggests that this discussion "clearly" shows that the Ratliff court was treating Ratliff's own "delusion" of the victim's conspiracy against her as the required "predicate provocation,"¹⁵ the opinion itself makes no statement of the sort. Rather, it focuses more on Ratliff's psychological disposition as described by expert witnesses and manifested by her delusions. The opinion noted, in fact, that "thesituation presented was one which in the past would have been labeled as wilful murder with a defense of insanity." Id. Only three years later, the Kentucky Supreme Court itself interpreted Ratliff to have found that an EED instruction "was mandated because two psychiatrists testified that the defendant was 'very likely' psychotic at the time she committed the homicide." Henley, 621 S.W.2d at 909. Without mentioning the "triggering" delusion that the dissent now emphasizes, the Henley Court characterized the evidence of Ratliff's mental condition as "definitive, nonspeculative evidence" of EED. Id. And as the dissent points out, three dissenting Justices in Ratliff protested just this aspect of the decision, opining that evidence only showing that Ratliff was suffering from a severe mental disease, without more, was not sufficient to qualify as EED. See id. at 310 (Jones, J., dissenting). While this minority view did not prevail at the time (as it would in later years), it helps clarify that the majority was treating Ratliff's mental illness as sufficient to show EED¹⁶.

Again in Edmonds, the Kentucky Supreme Court relied primarily on psychological evidence to find that an EED instruction was necessary. The court explained that Edmonds had previously been hospitalized for a psychoneurotic condition, and that prior to his alleged killing of a 23-year old woman with whom he was infatuated, he had been taking a self-prescribed and self-compounded medication (a mixture of sodium bromide or alcohol and potassium bromide) that led him to "blank out" and act in a "bizarre manner." 586 S.W.2d at 26. The court then explained that due to continual jealousy and his delusion that she was seeing another man, Edmonds shot her. See id. While the dissent once again casts Edmonds's "delusion" as the required triggering predicate for an EED instruction, see post at 120, the Edmonds Court itself suggests that this was not the case. Indeed, the court flatly rejected the Attorney General's argument that the EED instruction was not necessary because EED derived from the "heat of passion" defense (which required provocation). Instead, the court stated that

[w]e find it unnecessary to define extreme emotional disturbance. It is suffice to say that we know it when we see it. In the present case, we see sufficient evidence to justify a submission of the issue to the jury.

Id. And once again, looking back on the case three years later, the Henley Court assessed that the instruction was warranted in Edmonds because of the "strong evidence" of EED: namely, "[t]he appellant had been hospitalized several times for mental problems, and shortly prior to the shooting, he had been taking a self-prescribed and self-concocted medication which affected him mentally." 621 S.W.2d at 909. Just as with Ratliff, there was no mention of any predicate provocation triggering a response from Edmonds--only his mental state.

Given these opinions f