Patterson v. New York – Oral Argument – March 01, 1977

Media for Patterson v. New York

Audio Transcription for Opinion Announcement – June 17, 1977 in Patterson v. New York

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Warren E. Burger:

We will hear arguments next in 75-1861; Patterson against New York.

Mr. Rubino, you may proceed when you are ready.

Victor J. Rubino:

Mr. Chief Justice and may it please the court.

This is an appeal from a four-to-three decision of the New York Court of Appeals affirming appellant’s conviction for murder and specifically rejecting his claim that the New York statutes pursuant to which he was convicted of murder, violated his Due process rights under the 14th amendment and that the New York statutes required him to bear the persuasion burden at his trial for murder on the issue of provocation, which in New York is the Model Penal Code formulation extreme emotional disturbance.

The issue on this appeal is whether they are placing that persuasion burden on appellant at his trial in order to allow him to exonerate himself of murder and be convicted only of manslaughter in fact violates his Due process rights specifically in light of this court’s decisions in In re Winship and Mullaney versus Wilbur.

It is appellant’s contention on this appeal that a reversal of his convictions require because there is a functional identity between the challenge to rule here of New York state and the rule invalidated by this court unanimously in Mullaney and furthermore that in Mullaney, the state of Maine argued that in fact there was only one generic crime of felonious homicide and that the provocation issue only distinguished two punishment categories; cold murder and manslaughter.

It is clear in New York, there are two distinct crimes of murder and manslaughter and therefore it is more clear violation of Winship.

I would like to stress at the outset that this appeal presents a challenge to one rule, the provocation rule as formulated by the Model Penal Code extreme emotional disturbance and I think now would only affect two states; New York and Connecticut in appendix A to our brief, we have listed the states which have adopted the extreme emotional disturbance defense and shown which states have place the burden persuasion on the defendant.

Currently, it is only New York and Connecticut.

In Connecticut there are now two lower court opinions applying Mullaney to place the burden on the state that is in two trial courts in two counties out of the six in Connecticut.

So, the issue on this appeal is we argue very narrow, one rule arguably affecting two states.

Would you distinguish extreme emotional disturbance from the various ranges of mental disease or defects that are within the spectrum of so called insanity.

Victor J. Rubino:

Yes, Your Honor.

I think the starting point is to understand that extreme emotional disturbance was a formulation to expand the concept of provocation and that it carried with it the requirement that there would be a reasonable explanation or excuse for the defendant’s conduct.

I guess the only way I can state the differences is to say it is difficult to imagine that insanity one would have to not only show a certain state of insanity or certain disease, but then say I have a reasonable excuse for that.

I think the very concept of insanity leaves aside that kind of objective standard that ultimately anchors each of the two concepts.

In other words provocation is must be explained.

It also goes less — insanity goes to the intellect to knowing right from wrong and then there is no such question posed in the extreme emotional disturbance.

There is not?

Victor J. Rubino:

No.

Well, then what is the impact of the extreme emotional disturbance on the volition of the actor of the defendant?

Victor J. Rubino:

The impact is that at that at the time at which he has lost his selfcontrol, it does not mean he does not know right from wrong; it is not a test.

In other words, he does indeed had no disease or defect.

In fact, it assumes basically that he is a rational man who has then lost selfcontrol just as of provocation was described by this court in Mullaney.

Would you equate it to the order of vernacular in the heat of passion?

Victor J. Rubino:

I think it is broader, Your Honor; I think when you say equate, I would equate it only in the sense that it performs the same function that that function is to distinguish between the crime of murder and the crime of manslaughter.

I would further say that it is clear in LaFave & Scott, for instance, they do use the term interchangeably when they speak of heat of passion, they then say extreme emotional disturbance.

Who does, who said?

Victor J. Rubino:

LaFave & Scott, Your Honor, in the section starting at page 572 to 582 in discussing heat of passion doctrines.

It is also interesting to look at those ten pages in LaFave & Scott and compare them, we have an appendix B, put together the comments under the Model Penal Code concerning the revise formulation heat of passion and not only the Model Penal Code but the revisers in New York, the staff notes.

Victor J. Rubino:

If we compare the various ways in which it was believed extreme emotional disturbance would expand the provocation concept, we can see that it is still anchored in provocation but it simply opens up more situations and I would like, Your Honor, to go through those.

The point being that in each of the situations that extreme emotional disturbance expands or so called expands the provocation concept of heat of passion, if we examine LaFave & Scott, we see that there are already some states under the heat of passion concept that had arrived there and so that ultimately what are we dealing with, we have a label.

The new label entails more liberal scope provocation but it does not different conceptually or functionally.

I may just take one example because the New York Court of Appeals stressed this particular liberalization in its opinion and that is cooling time.

Under some heat of passion rules cooling time was fairly restricted and that the provocation had to spontaneously cause loss of control and lead to the killing and it was within a very limited time frame so that the defendant could not have cool down.

In another words, if he was provoked last month by someone, he could not go a month later and just shoot him and claimed provocation.

The point is that the extreme emotional disturbance formulation allows a longer cooling time, allows as the Court of Appeals put it a certain amount of brooding, this is I think Professor Wexler’s concept that in fact heat of passion or provocation and deliberation are not really mutually exclusive that if you think about it, you can, by deliberating, get more exercised about something rather than less and the extreme emotional disturbance concept was to allow a broader period of time.

But the point is that now that you have a longer cooling time sort of speak allowed what does that difference mean constitutionally, why should that require a less reliable verdict of murder in New York as oppose Maine.

If it went to hardship that might be an argument but the facts of this case show that al longer cooling time here as, for instance, in self-defense where you deal with antecedent circumstances where you claim that you were afraid of the victim and that’s you shot, may go back a year, a year-and-a-half, but the time period is filled with specific tangible facts and events.

Nothing especial, the facts of this case are not exotic in terms of provocation.

It is a fairly plastic provocation situation in overall context that is the love triangle and the adultery situation.

So that we have tried to show in our brief that when we say functional identity between the New York and Maine rules, we are saying that these rules exist to distinguish murder from manslaughter; that there are significant punishment differentials.

In New York, extreme emotional disturbance distinguishes between murder in the first-degree as well as murder in the second-degree in manslaughter and in fact in murder in the first-degree, the reduction is not to murder in the second-degree but to manslaughter, which clearly shows not simply a dropping down when you prove the extreme emotion disturbance issue but it shows the distinction clearly between the crime of murder in New York and the crime of manslaughter.

Winship was the determinable case in this area, it explicitly established that the Fourteenth Amendment Due process clause requires and in the words of Winship, proof of every fact, which goes to constitute the crime.

I think the problem that Mullaney presented in terms of interpretation was that in fact the state of Maine said we only have crime of felonious homicide and we have proved it; we have proved an intentional killing.

The response of this court was that we will look to the substance of your law and not to the formal designation which you give and decide whether the due process clause applies, the reasonable doubt standard applies and that has caused some comment that in fact Mullaney has lead to a rather broad view of what is required to be proved by the state and might possibly lead to striking down a number of affirmative defenses.

On this appeal we claim we are within the four corner of Mullaney and that this does not reach to the issue of other affirmative defenses and only the one before us.

New York, as I said, does not present the problem that was presented by the state of Maine.

New York clearly has two crimes and clearly the provocation issue extreme emotional disturbance here distinguishes them.

Now what can be the distinctions?

The New York Court of Appeals; 4-to-3 decision really dealt with two separate approaches to distinguishing Patterson from Mullaney; one is they look to the state law itself of Maine and said that Maine first of all really did not require the state to prove intent and we say that is simply not true that the opinion of this court to Mullaney and the state of Maine cases indeed the brief of the Attorney General in Maine make clear that intent has to be proved by the state of Maine.

How about Malice?

Victor J. Rubino:

Malice had to be proved by the defendant, Your Honor.

Yeah, but it was an element of the crime.

Victor J. Rubino:

Your Honor, as I understand Mullaney —

The state never had to prove it, never had to prove it; it is presumed.

Victor J. Rubino:

Yes and that is true; this court in Mr. Justice Powell’s opinion dealt with the concept of Malice and said that it has two meanings in the law; one is it can be a substance of element of intent really just stand in the place of the word intent and be proved by the state.

The other is, the term was used policy presumption of Perkins, who has cited at that point, describes Malice in some cases as really being a hollow concept that really it is defined by what it is not rather than what it is and one of the things it is not is provocation and the Maine courts themselves said that malice and provocation are undistinguishable; they are not separate issues.

So we have described this as being two sides of the same coin.

The Attorney General, in his brief in Mullaney, argued that in fact all malice, did, was to – in essence triggered the provocation issue to be proved by the defendant.

One of the fact that the malice was an element of the crime, but the state would never have to prove it.

Let us assume the defendant put on no evidence whatsoever and was found guilty by the Jury.

Victor J. Rubino:

If the defendant put not evidence in or if evidence of provocation did not arise or in the course of the prosecution’s case then there would be no instruction at all concerning a provocation or the ability to reduce to manslaughter…

But nevertheless the malice would have been presumed

Victor J. Rubino:

Only because — if we are dealing with burden to prove, malice is only relevant to the proof by the state of intent nothing else.

It is simply — it was described aptly by this court in two footnotes; one as wholly unnecessary and secondly as surplus in the law because what I have just said about the distinctions in the way malice is used as a term that it can actually stand for something to be proved or it can be merely a policy presumption that flows from proof of intent by the state.

As I said, the Attorney General argued this that malice itself had no separate meaning in terms of proof and we have described this in terms of proving malice.

In Maine, it is a vestigial organ.

It simply is there; it was described as I said as wholly unnecessary and surplus.

Provocation is the other side of malice.

The court in Mullaney said it would look to the substance of the law and not the form.

In New York and in Maine, intentional killing is murder unless provocation is proved by persuasion burden preponderance the evidence by the defendant and it is this that is the crucial distinction and it is this that goes to the violation of the defendant’s due process rights, Your Honor.

Mr. Rubino, may I ask you a question there?

You suggested in your arguments that Mullaney might — even if Mullaney is read very narrowly, you come within it because you come within the category of provocation

Victor J. Rubino:

Yes, Your Honor.

Would the same argument applied to self-defense, would that be a form of provocation, which logically Mullaney must apply to if it applies to your case?

Victor J. Rubino:

It could be, yes is the answer.

I would argue separately on that.

I would argue that self-defense in the case of unlawfulness which is an element of the crime.

Also it is a question of what the other side of malice is.

Perkins goes back and talks about malice as being things that it defined by what it is not; not justification, litigation, or excuse.

Now, it is possible to go back to that view of malice and say that in fact where you have a justification defense, self-defense that whether or not the statue talks about it that what in effect you are asking the defendant to do, it is to negate malice in essence.

So on self-defense, my answers are twofold; I think arguably it comes specifically within Mullaney, furthermore I think it might be a stronger case under Winship without necessary regard to Mullaney because it really goes to unlawfulness.

So, you are suggesting that probably, although I realize we need not necessarily — probably the same rule would apply both kinds of provocation, even though we don’t have to do that to decide your case.

Victor J. Rubino:

I believe — at least with respect to self-defense I would argue that yes, Your Honor.

Finally, the New York Court of Appeals, in addition to saying that well in Maine all it had to be, the state did not have to prove intent; we said that that’s not just not so and that we have dealt with malice.

The Court of Appeals also said well, extreme emotional disturbance is really only mitigation.

Now, this Court Mullaney dealt with that and Mr. Justice Powell’s opinion in Pages 697-698 said that the label was not dispositive and that the degree of criminal culpability in Maine is not elsewhere, at least where murderer and manslaughter involved.

At least in that situation, it was a protected interest so that we could — talking also about degree of culpability involved in Mullaney and involved here in Patterson.

The other approach of the Court of Appeals was one I have discussed in answer to a question.

Victor J. Rubino:

I would just label it here and that is that the fact that the formulation of New York’s provocation rule was broader and we say it is boarder, requires a distinction from Mullaney and we have argued first of all while it is broader that is per se no reason to allow less reliable verdict because the reasonable doubt standard is a procedural vehicle which goes to reliability.

It is not a reason to allow a less reliable verdict of murder in New York than in Maine.

Also that the difference is if we look at liberal rules under the heat of passion concept and what the Model Penal Code revisers or what the Model Penal Code was trying to do and what New York was trying to do, did not make that greater distinction and the distinctions don’t create unnecessary or unique hardship and that if they do there is a less onerous means of dealing with a hardship question and that is to put the production burden on the defendant.

In this case the defendant clearly made a production burden.

The issue was as fairly in the case as stated in the Mullaney.

In fact, in Mullaney, the defendant did not take the stand to present any witnesses; the issue was raised in his statement to the police.

So that the production burden is a less onerous means of dealing with the possible hardship if indeed that is a relevant criteria.

Finally, I would like to say the Chief Judge Breitel, in a separate concurring opinion, did in a more general way react to Mullaney and what he was saying is that where we have newer defenses and more ameliorative defenses, we ought to possibly allow the legislature to compromise a little bit.

In order to get a new defense in or new rule in, they should be allowed some leeway and our answer is the same that in fact when we are dealing with a procedural vehicle, a neutral principle that goes to reliability that is the reasonable doubt standard that we really should not look to the substance of the state law that the state should work it out and that they can work it out.

We have shown in our appendix that this has been no bar at all to the adoption of the extreme emotional distress view of provocation.

In Appendix A, we show the states that have done it; we show that today only New York and Connecticut required the burden only.

Defendant, in fact, in two of the six counties in Connecticut that is at least at the trial court has not received appellate court is no longer true.

So, I would just stress that this we do try to narrow the issue to provocation and that we stress that we are talking about a procedural vehicle, a neutral principle that does not ask about something about extreme emotional disturbance; is it good or is it bad, is it older or new, is it more liberal or more conservative.

We just say should we have to reliably have it proved because otherwise we will have murder convictions in the state of New York that are less reliable than in Maine.

Your Honor, I would like to reserve whatever time we have.

Very well.

Mr. Finnerty.

John M. Finnerty:

Mr. Chief Justice and may it please the Court.

I would at the outset like to point out that in the state of New York, provocation does not have the connotations that counsel has given it.

I would like to return to that and also point out factually that this was not in any stretch, by any stretch of the imagination a classic love triangle situation.

The parties have been separated some five to six months before this crime occurred.

The wife had started an action for divorce in the state of New York at that time they have what we called a conciliation proceedings.

A conciliator met with the parties to decide that there was no further necessity of those proceedings.

The defendant himself had brought on a counter claim for divorce.

Her attorney was really, at that point, negotiating a property settlement.

In October, some over two months before the crime occurred, the wife, Roberta had told the defendant that she was going to marry the deceased after their divorce became final.

He knew they were together.

He lives some 200 mile away himself.

He had seen them together earlier in December and in fact had assaulted both the deceased and his wife and on other occasion her father.

On the day of the murder, he came over 200 miles stopping along the way to see a friend and borrowed a gun and that friend’s car.

John M. Finnerty:

That was about 25 miles away from village of Bath where this occurred.

He came to Bath, attempted to borrow another gun, the first gun being a 22 weapon introduced as the murder weapon.

He attempted to borrow a shotgun in Bath.

Having borrowed that he went out five miles to his wife’s parent’s house, drove by there quarter of a mile.

On December 27th, it was dark out.

He saw the deceased car there.

He walked back, loaded the gun on the way then looked in, came through the back door, shot the deceased twice in the head, attempted to choke his wife, did choke her.

Released before she lost consciousness, force the wife without a coat to take her child or infant from the house and accompany him to the car.

I submit to you that the provocation aspect, if it depends on this being the classic love triangle of the situation, which appeared to him at that time, was not in the case, the jury could not have found it because the defendant knew anything he might have seen through that window.

Now, in Patterson, the Court of Appeals basically said, as long as the prosecution must prove every element of the defendant’s guilt beyond a reasonable doubt, specifically that he intended to kill the victim beyond a reasonable doubt, it is not a violation of due process to require or permit, may I say, the defendant to establish that he formed that intent under the influence of extreme emotional disturbance.

We do know that in New York the common-law developed differently and in New York heat of passion, those words was an affirmative element of a form of manslaughter rather than a mitigating factor to a charge of murder.

And I think importantly in any analysis of Mullaney is to understand that in New York since 1829, as Judge Jason (ph) stated, New York has not allowed malice to be implied in merely from the fact of a killing.

Now, this court and Mullaney said the malice aforethought and heat of passion in the Maine statute were mutually inconsistent.

Therefore, I would submit if malice is conclusively presumed, which the state of Maine allowed, there could be no heat of passion.

This presumption means that the prosecution does not have to prove an element of that crime beyond a reasonable doubt and this court in Mullaney by requiring the prosecution approve that really prove the absence of heat of passion is really requiring to the prosecution to prove the presence of malice which could no longer be implied.

Thus, Winship or Mullaney was a clear case with the application of Winship.

In New York, as the Court of Appeals pointed out, extreme emotional disturbance comes into the case only after all of the elements of the crime have been proved.

Specifically, they talked at great length about the intent to kill.

Rather than a situation pointed out that having proved let us say in Maine conduct a sufficient to cause serious physical injury.

I believe there was a charge of that in the Mullaney case that would account to manslaughter in New York, but in the state of Maine, given the benefit of the presumption that would rise to the level of murder.

In New York, the defendant is permitted to avail himself of extreme emotional disturbance only after all of the elements that is the attempt to cause a death and the causing of death have been found.

In a footnote in Mullaney, this court speculated that since the facts of intent are not general elements of the crime of felonious homicide that one generic category, instead they bear on the appropriate punishment category.

Under petitioner’s argument that being the state of Maine, a life sentence for any felonious homicide could have been imposed unless the defendant was able to prove that his act was not intentional or criminally reckless.

I think very importantly and not as it has been argued by appellant here, Judge Jason defined, rather than the Model Penal Code or the directors, he defined what extreme emotional disturbance is in New York and he said specifically that the purpose is to permit the defendant to show that his actions were caused by a mental infirmity not rising to the level of insanity and he continued speculating that there may have been a significant mental trauma, which has affected the defendant’s mind for a substantial period of time simmering in the unknowing subconscious and then coming to the fore.

Well, the provocation is not in that statute.

Provocation, I would submit at the same time this statute was drafted came in to the self-defense statute which the people are required to disprove as they are insanity in the state of New York.

Finally…

In this case it was incumbent upon the prosecution to prove intent.

Even if the affirmative defense had been sustained, the jury would still have to found intent to convict even the manslaughter.

Is that correct?

John M. Finnerty:

Yes, the charge to the jury specifically stated that they were not to consider unless they had found, first of all that the defendant had informed and had intended to cause the death of John Northrup.

That is intent to cause death as well.

John M. Finnerty:

Yes.

Not intentionally firing a weapon or something like that but the intent to cause death.

That duty on the prosecution remained even if the jury had found that the defendant was under the influence of extreme emotional disturbance.

John M. Finnerty:

I believe the words of the charge, and certainly the words in the Court of Appeals opinion, was that his intention was formed under the influence of extreme emotional disturbance.

Right but there still would have to exist that intention to cause death.

John M. Finnerty:

That had to be there first or there was finding of not guilty.

Out in the Maine situation, let us say, showing an intent to cause serious physical injury or in Maine it was great bodily harm.

In Maine, I submit that that would have been sufficient for the prosecution to convict of murder.

Here it would only be…

Since malice was presumed.

John M. Finnerty:

Since malice was presumed.

That would only be approved sufficient for manslaughter in the State of New York not with relation to extreme emotional disturbance but intending to cause the deceased serious physical injury and death results rather than intent to kill.

So, there as conceded, there is a separate criminal structure all the way down for different crimes in the State of New York.

Do you think that in New York, does extreme emotional distress — do judges instruct on what bearing it does have on intent, if any?

John M. Finnerty:

I think as Judge McDonald did in this case, if the instruction is given, it must properly be given that the intent to kill, if you find it, was formed well under the influence of extreme emotional distress as it was charged in this case.

Well, is it is the effect of proving your extreme emotional distress to destroy the necessary intent element?

John M. Finnerty:

Not at all in New York and I believe the statute and certainly the majority in Patterson and the Court of Appeals in State of New York as specifically stated does not, intention carries all the way through intention to cause death.

This court has not held that Winship requires that any shifting of the burden of proof violates due process basically from the Leland against Oregon cited in the concurring opinion in Mullaney and indeed in Rivera against Delaware decided recently for the State of Delaware does require the defendant to bear the burden of proof in an insanity case.

One of those in Leland against Oregon recited in the Court’s opinion in Mullaney and the indication that it was being undermined and specifically it was stated in a concurring opinion that it was not.

So therefore, if the appellant’s argument is that Winship requires any concept of shifting and I would note that some of the lower courts, at least in New York, before the Patterson opinion rather than going further and an analysis did decide that that any shifting violates due process and it’s just what Winship was trying to avoid, I submit that they are trying to perform over substance because it looked the same therefore a shifting in Winship controls.

You were just saying that as long as a shift does not take place, if the defendant can exonerate himself by proving some facts that does not violate Winship.

John M. Finnerty:

Precisely, the mere fact of a shift does not violate Winship.

But if you can reduce the degree of the crime or exonerate yourself entirely by proving the fact, why isn’t the absence of that factor?

The operative lay and function the same as making an element of the crime.

John M. Finnerty:

Because I think perhaps referring to a question you asked earlier, intent to cause death and extreme emotional disturbance are not mutually inconsistent factors.

Well, that maybe so but nevertheless, the State says if you can prove ‘X’ the degree of crime is going to be reduced or you are going to be found innocent, you necessarily found innocent and therefore, why functionally, isn’t that the same as saying — why should not the States have to prove the absence of facts.

Why does the court make the absence of facts an element of the crime?

John M. Finnerty:

The absence of facts is not the element of the crime but the addition of facts changes the crime of which the proof originally sustained.

John M. Finnerty:

I see what you’re talking about were into if any fact is involved in a crime, the State must prove or disprove it to sustain the conviction of any crime but as Judge Breitel pointed out this, because of the advances in psychiatric findings and testimony, gives a benefit to a defendant and since this is, as the Court of Appeals said, a mental infirmity not rising to the level of insanity, the facts of that are not related to provocation, they are not objective things that the jury can look at what happened at the time.

They are really something that’s in the defendant’s mind.

Since Winship does not require due process violated every time there is a shifting, I would submit to you that mitigation itself that concept does not constitutionally required.

Judge Breitel spoke to this in his concurring opinion in that and the example might be what reaction would a State legislature have to make if it were faced with a choice between requiring the prosecution to prove beyond a reasonable doubt of fact which is not required by the due process or eliminating that defense all together.

I think the aspects of the affirmative defense statutes in New York and there are several of them appended to our brief, show that in many cases the defendant possesses unique knowledge, which the State has decided to allow him to use in mitigation of the charge for which the evidence would convict him.

If mitigation is not constitutionally required then rather than violating the due process clause, New York has merely gone beyond the constitution, beyond what is required of the State to do.

It strikes me that the appellant’s argument is to assist Court to hold that Winship requires any shifting violates due process and if that is the case, we are then into the situation of what type of scheme; is that the heat of passion on certain provocation which was not known in New York.

The penal law in New York developed entirely different or is it extreme emotional disturbance in some other form and a mental infirmity not rising to the level of insanity.

New York has a persuasion burden but what is then the burden of production or a persuasion burden.

Appellant is really asking the Court to redraft the mitigation concept, which I believe the State of New York is trying to do so to grant benefits to persons who would otherwise stand convicted of criminal offences.

Very briefly, the points made in appellant’s arguments which I will disagree with number one is that these two defenses are functionally the same; they are not in provocation now being a part of self defense in New York.

It is not the question here.

The question is does Winship require that shifting violates due process and does Winship require that the defendant have no benefit from mitigation or that the State can require him to bear a rather unique burden of proof here.

Do you have anything further, Mr. Rubino?

Victor J. Rubino:

Yes, I would like to point out on this business of intent in New York and Maine operates the same.

In New York, you must prove intent and in Maine, the District Attorney must prove intent that provocation factor does not negate intent neither New York or Maine.

I find it ironic, if you look at the briefs in Mullaney, it was the State arguing that malice was really of no meaning in that provocation distinguishes punishment categories.

The State said the malice operated solely to trigger the provocation issue.

The brief of the Attorney General in Maine just says very clearly that a specific subjective intent to kill is required and so that there are no differences in the way that the cases of murder have to be proved in either New York or Maine.

Finally, I would like to stress that we are not talking about the substance of State laws that we are not saying that of Mullaney or Winship require State to make any particular facts or germane.

Just as in Leland, one other issue was not to make the irresistible impulse test of insanity.

We are not trying to argue that a State must make a particular factor germane but if it does make that factor germane to a distinction between murder and manslaughter with significant penalty differentials and a significant differential in stigma that was discussed in Mullaney then it must prove that fact.

Would you say the same is true about any fact that determines whether there is any crime at all or not?

Victor J. Rubino:

I don’t think Mullaney reaches that Your Honor, I would say that an argument…

But you seemed to…

Victor J. Rubino:

I believe that.

Your approach here seems to encompass that.

Victor J. Rubino:

If my approach encompasses it, it’s because I believe that Mullaney encompasses it, Your Honor.

All I’m saying is that for the provocation issue particularly, we don’t have to decide whether Mullaney goes beyond, it might.

I feel it does in certain defenses.

Victor J. Rubino:

I think however that each defense and each factor must be looked at independently, just as a question was asked about self defense.

There are enormous number of issues this case in preparing for, there is a course in the criminal law and one must examine each concept for its effect on stigma, on sentencing differential and on peculiar, let’s say, hardship of proof, whether or not it’s really a policy defense like the minority view of entrapment is and whether if it’s simply a policy that we’re talking about whether that would have to be proved by the State.

Well, all of criminal law represents State policy, isn’t it?

I think it’s all policy, 42.18 I suppose not to have any criminal law.

Victor J. Rubino:

Yes, I believe that’s true.

When I said policy, I mean, I’ll give an example.

In entrapment, a minority view says that we’re only looking to police conduct and that therefore, it really does not go to whether the defendant was predisposed, it doesn’t go to whether the defendant intentionally committed the crime.

It’s a policy that we have superimposed and that need not be dealt with in the trial phase at all, that could be a pretrial hearing.

That’s what I meant by the term “policy”.

There is also an abandonment, possibly a policy that really what we want to do is encourage abandonment, i.e. really not excusing the defendant and that you might make a distinction depending on what the State itself said about abandonment, not what this Court would in anyway tell the State what to do.

Well, thank you.

This case is submitted.