State v. Cowan

NO. 91-289

IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA,
Plaintiff and Respondent,
V. j

JOE JUNIOR COWAN,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Margaret L. Borg and William Boggs, Missoula
For Respondent:
Hon. Marc Racicot, Attorney General: Barbara
Harris, Assistant Attorney General, Helena
Robert L. Deschamps 111, County Attorney,
Missoula

Submitted: April 4, 1993

Decided: October6,1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The District Court for the Fourth Judicial District, Missoula
County, sitting as the trier of fact, convicted Joe Junior Cowan of
aggravated burglary and attempted deliberate homicide. He appeals.
We affirm.
The issues are:
1. Did the State prove the mental element of the crimes of
attempted deliberate homicide and aggravated burglary beyond a
reasonable doubt?
2. Do the Montana statutes governing the presentation of
evidence of mental disease or defect in effect establish a
conclusive or unrebuttable presumption of criminal intent in
contravention of the doctrine enunciated in Sandstrom v. Montana?
3. Does sentencing and confining Cowan to prison violate the
Eighth and Fourteenth Amendments to the United States Constitution
because of his mental condition?
On April 23 or 24, 1990, Joe Junior Cowan broke into a United
States Forest Service cabin at the Lolo Work Center, eighteen miles
west of Lolo, Montana. When the occupant of the cabin came home on
the evening of the 24th, it was clear to her that someone had been
in her cabin eating her food, watching her television, and
generally making himself at home. She called "911" and locked her
doors before Cowan again broke in and assaulted her with a tree-
planting tool called a hodag.

2
 Sheriff's deputies responding to the victim's phone call
apprehended Cowan at the Work Center. He had in his possession a
backpack containing some of the victim's belongings. He did not
resist arrest. The victim was found semi-conscious on the floor of
her kitchen. She survived, despite injuries including a punctured
lung, broken ribs, a broken scapula, a dislocated shoulder, and a
skull fracture.
Cowan has been diagnosed as suffering from paranoid schizo-
phrenia, a serious mental disorder. Prior to trial, he was
evaluated by psychiatrists and found competent to stand trial.
Cowan waived his right to a jury trial. At his bench trial,
he argued that he did not act deliberately in committing these
offenses. He asserts that he was in an acute psychotic episode at
the time of the attack and that he was under the delusion that the
victim was a robot, not a human being. Mental health professionals
testified for both Cowan and the State on this issue. The court
found Cowan guilty as charged.
At Cowan's sentencing hearing, the court heard argument about
whether he should be confined in a prison or a mental institution.
The court ordered him committed to the custody of the Montana
Department of Institutions "for placement in a facility deemed
appropriate to [his] need for treatment and society's need for
protection from [him].I1

3
 Did the State prove the mental element of the crimes of
attempted deliberate homicide and aggravated burglary beyond a
reasonable doubt?
Our standard of review is whether, viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact
could have found Cowan guilty beyond a reasonable doubt of the
crimes with which he was charged. State v. Bower (l992), 254 Mont.
1, 6, 833 P.2d 1106, 1110. The charge of attempted deliberate
homicide required proof that Cowan purposely or knowingly attempted
to cause the death of another human being. Sections 45-4-103 and
45-5-102, MCA. The aggravated burglary charge required proof that
he knowingly entered or remained in an occupied structure with the
purpose to commit an offense and was armed with a weapon. Section
45-6-204(2)(a), MCA. Cowan concedes the conduct elements of both
offenses. He challenges the finding that he acted knowingly or
purposely.
"Knowingly" and "purposely" are defined at 5 45-2-101(33) and
(58), MCA:
(33) "Knowingly"--a person acts knowingly with respect to
conduct or to a circumstance described by a statute
defining an offense when he is aware of his conduct or
that the circumstance exists. A person acts knowingly
with respect to the result of conduct described by a
statute defining an offense when he is aware that it is
highly probable that such result will be caused by his
conduct. When knowledge of the existence of a particular
fact is an element of an offense, such knowledge is
established if a person is aware of a high probability of
 its existence. Equivalent terms such as "knowing" or
"with knowledge" have the same meaning.
...
(58) "Purposely"--a person acts purposely with respect
to a result or to conduct described by a statute defining
an offense if it is his conscious object to engage in
that conduct or to cause that result. When a particular
purpose is an element of an offense, the element is
established although such purpose is conditional, unless
the condition negatives the harm or evil sought to be
prevented by the law defining the offense. Equivalent
terms such as "purposet1 and "with the purpose" have the
same meaning.
Cowan contends the most conservative conclusion one could draw
from the expert testimony in this case is that it clearly raised a
reasonable doubt about whether he acted deliberately in committing
the offenses. He cites the evidence that he had suffered for years
from a serious mental disorder, paranoid schizophrenia. A

psychologist testified on behalf of Cowan that there was "reason-
able scientific evidence" that he was suffering an acute psychotic
episode at the time of the incident. The psychologist who appeared
on behalf of the State testified that "the presence of his disorder
. . . plus that kind of behavior certainly raised the possibility
of psychosis at that time."
However, the expert testimony concerning whether Cowan was in
a psychotic episode at the time of the attack was less than
unequivocal. Exaggeration of symptoms was a concern. It was not
until his third interview with the State's psychologist that Cowan
stated he was under a delusion that the victim was a robot at the

5
time of the attack. Before that, he described her as a "large
white woman" who looked stronger than he was.
The experts testified that Cowan's paranoid schizophrenia is
episodic and that it waxes and wanes. They testified that they
could not determine with certainty whether Cowan was in the midst
of a psychotic episode at the time of the attack. Also, the
State's expert testified that Cowan's intelligence, motive, and
past experiences were sufficient to enable him to falsify symptoms
of psychosis. One of Cowan's experts testified that Cowan had a
history of "going into places that belonged to other people and
just basically hanging around for a while and eating."
The expert witnesses also testified that Cowan had a history
of assaults on females and had been through the criminal process
before. The psychologist who testified for Cowan admitted that,
according to the diagnostic manual he used, malingering should be
strongly suspected in certain circumstances, including if the
patient is referred in a legal context or if the person has
antisocial personality disorders. He also testified that, in
answer to a question in a psychological test, Cowan stated that he
frequently lies to get out of trouble.
The weight of evidence and the credibility of witnesses are
within the province of the trier of fact. State v. Whitcher
(1991), 248 Mont. 183, 188, 810 P.2d 751, 754. A factfinder may
find credible some, all, or none of the testimony of any witness.
State v. LeDuc (1931), 89 Mont. 545, 562, 300 P. 919, 926. A s the
6
trier of fact in this case, the court could have, for example,
found credible the evidence that Cowan suffers from paranoid
schizophrenia but disbelieved that Cowan was in a psychotic state
which prevented him from acting knowingly or purposely on April 24,
1990.

Moreover, the issue before the court in the trial phase of
this action was not whether Cowan was in a psychotic state, but, as
stated above, whether he acted purposely or knowingly. The
existence of a mental disease or defect in a person does not
necessarily preclude the person from acting purposely or knowingly.
State v. Byers (Mont. 1993), - P-2d - t - St.Rep. _,
-, citing State v. Korell (1984), 213 Mont. 316, 690 P.2d 992.
The State's expert felt that, on April 24, 1990, Cowan was able to
act with purpose or knowledge. Cowan's expert psychiatrist agreed
that eyewitness testimony is as important in determining what a
person was feeling or thinking at a particular time as is the
testimony of experts. He did not obtain information from eyewit-
nesses before rendering his opinion, however.
Cowan states that the eyewitness testimony of the victim and
the officers who arrested him describes bizarre, senseless,
reckless, and terrifying behavior. He refers to his actions of
trying to tear the license plates off the victim's car prior to
attacking her, approaching the victim even when he could see she
had a shotgun pointed at him, and, when the authorities arrived,
running from them only to retrieve his backpack.
7
 A deputy county sheriff who talked to Cowan and offered him a
ride on the day before the attack, near the Work Center, stated
that Cowan was coherent and able to carry on a normal conversation
then. Cowan told the officer he planned on camping in the area.
At the time of the attack, Cowan was lucid enough to be able to
eavesdrop on the victim's telephone call to "911" from an extension
phone in another building. He was rational enough to slash the
tires on the victim's car and to use a tool to break through the
locked front door of her cabin after finding all the doors to the
cabin locked. The victim described Cowan circling her cabin before
he broke in, mocking her pleas to leave and to let her go. She
described his facial expression as "mad, angry, serious." He
called her a "society bitch,11in addition to calling her, as the
defense points out, a "robot bitch." After he entered the cabin,
and in the midst of assaulting her with the hodag, he wrestled the
shotgun away from her and attempted to shoot her with it.
The District Court found that, prior to his attack on the
victim, Cowan had made no statements or comments to mental health
care givers indicating a delusional belief system involving the
existence of robots disguised as humans. There is no evidence to
the contrary in the trial transcript. The court further found
that, in discussing the attack with mental health professionals,
Cowan has referred to the victim as Ilshe," llher,"and a "white
woman.'I That finding is supported in the record. The court then

8
found that, during the attack, Cowan I'was conscious of the fact
that [the victim] was a human woman."
After reviewing the record, and viewing it in a light most
favorable to the prosecution, we conclude that a rational trier of
fact could have found beyond a reasonable doubt that Cowan
possessed the requisite mental state to be convicted of the crimes
with which he was charged.
I1

Do the Montana statutes governing the presentation of evidence
of mental disease or defect in effect establish a conclusive or
unrebuttable presumption of criminal intent in contravention of the
doctrine enunciated in Sandstrom v. Montana?
In Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450,
61 L.Ed.2d 3 9 , the United States Supreme Court established that the

Due Process Clause prohibits the use of a presumption which
relieves the prosecution of the burden of proving mental state by
requiring an inference of the existence of criminal intent from the
fact of criminal conduct. In that case, the impermissible
presumption was embodied in a jury instruction which recited
statutory language providing that "a person intends the ordinary
consequences of his voluntary acts."
Because this case was tried to the court, there were no jury
instructions. Cowan bases his argument on statutes upon which he
believes the court must have relied.

9
 Evidence of a mental disease or defect is admissible in
Montana under 5 46-14-102, MCA, to prove that a criminal defendant
did or did not have a state of mind that is an element of a charged
offense. Cowan argues that because mental disease or defect does
not, however, constitute a valid defense to a criminal charge in
Montana, a conclusive presumption is established as to mental state
in violation of the Due Process Clause as discussed in Sandstrom.
Cowan also argues that the court must have applied 3 45-5-112,
MCA. That statute provides that “[iln a deliberate homicide,
knowledge or purpose may be inferred from the fact that the accused
committed a homicide and no circumstances of mitigation, excuse, or
justification appear.” Cowan argues that if any evidence of
organized or integrated conduct will suffice to establish criminal
intent beyond a reasonable doubt, in spite of clear manifestations
of insanity, then no one who commits a criminal act can ever be
acquitted on grounds of insanity because it would be impossible for
anyone to cause harm without engaging in a minimal level of
organized conduct.
We have previously affirmed the constitutionality of the
abolition of the insanity defense in terms of violation of the
right to due process. Bvers, __ P.2d at - Korell, 690 P.2d at
;

1002. As we noted in Bvers and Korell, the United States Supreme
Court has determined that the Due Process Clause does not require
the use of any particular insanity test or allocation of burden of

10
proof. Leland v. Oregon (1952), 343 U.S. 790, 72 S.Ct. 1002, 96
L.Ed. 1302, reh. denied, 344 U.S. 848.
Section 45-5-112, MCA, provides that any evidence of organized
or integrated conduct ma^ suffice to establish criminal intent in
a deliberate homicide beyond a reasonable doubt. The ultimate
determination is left to the finder of fact. Section 45-5-112,
MCA, establishes a permissive inference, not a conclusive presump-
tion. A statute establishing a permissive inference does not
violate the rule stated in Sandstrom. See State v. Woods (1983),
203 Mont. 401, 415, 662 P.2d 579, 586; State v. Coleman (1979), 185

Mont. 299, 397-98, 605 P.2d 1000, 1052-53, cert. denied, 446 U.S.
970, reh. denied, 448 U.S. 914.

We hold that the Montana statutes governing the presentation
of evidence of mental disease or defect do not establish a
conclusive or unrebuttable presumption of criminal intent in
contravention of the doctrine enunciated in Sandstrom.
I11

Does sentencing and confining Cowan to prison violate the
Eighth and Fourteenth Amendments to the United States Constitution
because of his mental condition?
Cowan states that it is inhumane to consider the insanity of
a person accused of a crime only to reduce the degree of the crime
or the punishment therefor. He argues that sentencing an insane
person like himself to the law-of-the-jungle conditions in prison
is essentially a death sentence. He cites People v. Skinner (Cal.
11
1985), 7 0 4 P.2d 752. In that case, the California Supreme Court
stated that the M'Naghten test of insanity, which has been used
since 1850, reflects a fundamental principle of criminal law.
Skinner, 704 P.2d at 759.

We decline to adopt the reasoning of the California Supreme
Court in Skinner. As we stated above, the United States Supreme
Court has not required the use of any specific insanity test for
purposes of due process. Montana's law allows consideration of a
defendant's mental disease or defect at three stages--determination
of fitness to stand trial, at trial to disprove state of mind, and
at sentencing. Korell, 690 P.2d at 996- 97. This Court has further
explained:
The [Montana] legislature has made a conscious decision
to hold individuals who act with a proven criminal state
of mind accountable for their acts, regardless of
motivation or mental condition. Arguably, this policy
does not further criminal justice goals of deterrence and
prevention in cases where an accused suffers from a
mental disease that renders him incapable of appreciating
the criminality of his conduct. However, the policy does
further goals of protection of society and education.
...
Our legislature has acted to assure that the
attendant stigma of a criminal conviction is mitigated by
the sentencing judge's personal consideration of the
defendant's mental condition and provision for commitment
to an appropriate institution for treatment, as an
alternative to a sentence of imprisonment.
Korell, 690 P.2d at 1002.
We reiterate 'that Cowan was not sentenced to prison, but was
placed in the custody of the Department of Institutions. The court
specifically stated its purpose to provide for treatment of Cowan's
12
mental illness at a different facility if the Director of the
Department of Institutions determines treatment at a different
facility is needed.
We hold that the sentence imposed by the District Court does
not violate the Eighth and Fourteenth Amendments to the United
States Constitution.
Affirmed.

We concur:

Justices

13
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
I conclude that Montana's abolition of the insanity defense in
1979 violated the defendant's right to due process of law
guaranteed under the Fourteenth Amendment to the United States
Constitution, and Article 11, Section 17, of the Montana
Constitution.
Based on the Legislature's abolition of the insanity defense
in 1979, and this Court's approval of that change, a person in
Montana can be convicted of serious crimes and sentenced to
confinement in the State Prison (in this case for a period of up to
60 years), even though at the time of the acts with which they are

charged they were unable to appreciate the criminality of their
conduct or were unable to conform their conduct to the requirements
of the law because of mental illness. This result flies in the
face of those notions of fundamental fairness which have been
universally accepted by civilized societies subscribing to English
notions of justice for the past 700 years.
Furthermore, I disagree with the majority's reliance on the
United States Supreme Court's decision in Leland v State of Oregon
.
(1952), 343 U.S. 790, 72 S. Ct. 1002, 96 L Ed. 1302.
. While that
Court did hold in that case that the defendant was not
constitutionally entitled to a specific form of the insanity
defense, it is implicit from that decision that some form of
insanity defense is required by the due process clause. In fact,

14
subsequent to this Court's decision in statev. Korell (1984), 213 Mont.

316, 690 P.2d 992, the California Supreme Court cited Leland for

exactly the opposite purpose for which it is cited by this Court.
In People v. Skinner (Cal. 1985), 704 P.2d 752, the California Supreme

Court, while discussing the due process dimensions of the insanity
defense, stated that:
Because mens rea or wrongful intent is a fundamental
aspect of criminal law, the suggestion that a defendant
whose mental illness results in inability to appreciate
that his act is wrongful could be punished by death or
imprisonment raises serious questions of constitutional
dimension under both the due process and cruel and
unusual punishment provisions of the Constitution. In
Lelandv. Oregon (1952), 343 U.S. 790, 72 s-ct. 1002, 96
L.Ed. 1302, the court upheld an Oregon law placing the
burden of proving insanity beyond a reasonable doubt on
the defendant and affirmed the right of the state to
formulate the applicable test of legal insanity. In so
doing, however, the court measured the law under due
process standards, concluding that the irresistible
impulse extension of traditional insanity test was not
I"imp1icit in the concept of ordered liberty. (343
U.S. at p . 801, 72 S.Ct. at 1009). The court thus
seemingly accepted the proposition that the insanity
defense, in some formulation, k required by due process.
(See also Robinsonv. California (1962), 370 U . S . 660, 666, 82
S.Ct. 1417, 1420, 8 L.Ed.2d 758, suggesting that
punishment for the status of being mentally ill would
constitute cruel and unusual punishment.) Scholars, too,
suggest that abolition of the traditional insanity
defense may be constitutionally impermissible if the
result would be imposition of punishment on a mentally
ill person for acts done without criminal intent. (See
Robitscher & Haynes, In Defense o the Insanity Defense (1982) 31
f
..
Emory L J 9: Note, The Proposed Federal Insanity Defense: Should the
..
Quality of Mercy Suffer the Sake of Safety ( 1984) 22 Am. Crim L Rev.
for
49.)
This court suggested a similar view in People v.
Coleman (1942), 20 Cal.2d 399, 407, 126 P.2d 349, where
we observed: "Obviously an insane person accused of crime

15
 would be inhumanely dealt with if his insanity were
considered merely to reduce the degree of his crime or
the punishment therefor."
Skinner, 704 P.2d at 757-58.

Montana's statutory scheme for dealing with mental illness
does exactly what the California Supreme Court suggests would
violate due process and cruel and unusual punishment provisions of
the Constitution. It allows for conviction and punishment of those
who are unable to appreciate the criminality of their conduct, and
substitutes for the insanity defense the mere option of the
district court to take mental illness into consideration when
deciding the degree of punishment or nature of confinement.
While evidence of mental disease or defect is admissible to
prove that a defendant did not have a state of mind that is an
element of the offense, it is clear that Montana's law does not
take into consideration the defendant's ability to appreciate the
criminality of his conduct or conform his conduct to the law. The
only state of mind that had to be proven to convict the defendant
in this case was that he acted knowingly and purposely at the time
of the illegal conduct with which he is charged. Based on
Montana's definitions of knowingly and purposely, he could act with
both states of mind and still not appreciate the criminality of his
conduct nor be able to conform his conduct to the law. The facts
of this case are a perfect example.
The behavior of defendant, as described by the victim of his
brutal conduct, was nothing less than bizarre and irrational.

16
While he circled her house looking for a point of entry, he
referred to her as a "robot bitch." He kicked at her car and
inexplicably pulled at her license plate. He flattened all four
tires of her vehicle, but made no effort to remove the keys from
the ignition. When the victim demanded that defendant leave the
premises, he would grunt and mimic her. However, most of what he
said was unintelligible. When he did finally gain entry to the
house, she pointed a gun at him and pulled the trigger. However,
he was undeterred by the threat from her gun. When the victim
asked defendant who he was and what he wanted, he would simply
mimic her by repeating what she said. She also recalled that he
told her she was in his house and that she should get out of his
house.
After defendant's assault on his victim and the arrival of at
least two Missoula County Deputy Sheriffs, defendant was observed
by one of those deputies in front of the mess hall near the
building where the assault occurred. That deputy, who was armed,
told him to stop. However, again disregarding the threat to his
safety, he ran around to the back of the building where he
retrieved his backpack. The deputy followed him to the back of the
building where she found him standing with his backpack. After
that point in time, he obeyed all of the deputy's instructions.
Defendant was examined by numerous psychologists and
psychiatrists prior to trial. One psychiatrist and two clinical
psychologists gave testimony at trial. Everyone who examined

17
defendant concluded that he was suffering from paranoid
schizophrenia, a form of mental disease, which even the State's
psychologist conceded may have precluded defendant from
understanding and appreciating the criminality of his conduct at
the time of the crime with which he was charged.
Dr. Noel Hoell testified that he was a psychiatrist practicing
in Missoula who interviewed defendant, reviewed his previous
medical records from North Carolina, and did a mental status
evaluation. From his investigation, he learned that defendant had
been hospitalized on a number of previous occasions with diagnoses
of depression, having psychotic features, and schizophrenic
disorder. He concluded from his own examination that defendant
suffered from serious mental illness which he diagnosed as
schizophrenia. He testified that common symptoms of schizophrenia
are hallucinations, delusions, and paranoid ideas. He said that it
is a psychotic disorder which implies a break in one's ability to
understand and deal with reality. His diagnosis was illustrated by
his conversations with defendant during which he stated that
defendant displayed delusional thinking and talked about people
being programmed by religious groups and the government to control
their behavior.
Dr. Hoell reviewed the records from defendant's evaluation at
the Montana State Hospital and found nothing inconsistent in the
State's evaluation.

18
 Dr. Hoell learned from his interview with defendant that
defendant thought he was on his own property at the time of his
assault on the victim, and also believed that the victim was not
really a human being, but believed she was a mechanical robot. He
testified that defendant felt endangered by the victim when she
began yelling and screaming in a menacing sort of way.
Most importantly, Dr. Hoell testified that, in his opinion,
defendant was in a psychotic state at the time that he attacked his
victim. In that state, he could not understand or deal with
reality because of hallucinations, delusions, and misinterpretation
of events. He could satisfy Montana's requisite mental state
because he could make a decision about what he was doing within his
own sense of reality. In other words, he could act with purpose
and knowledge. However, Dr. Hoell testified that because of
defendant's mental defect, he did not appreciate the nature of his
attack on the victim and was not able to appreciate the criminality
of his conduct. In fact, it was Dr. Hoell's opinion that defendant
did not even appreciate that the death of a human being was a
potential result of his conduct.
Robert A. Shea was a clinical psychologist in Missoula who
examined defendant at the request of the public defender's office.
He reviewed the history of defendant's mental disease, and found
that it was progressive. He reviewed the records of Dr. Will
Stratford, Herman Walters, Ph.D., and the psychiatrist who examined

19
defendant at the State Mental Hospital, and stated that they had
all, likewise, diagnosed paranoid schizophrenia.
Dr. Shea interviewed the victim of defendant's attack and
custodial people at the Missoula County Jail to learn about
defendant's behavior. They described it as crazy and weird. On
occasion, he was observed hiding underneath his bunk with the
mattress wrapped around himself.
From April 25, when Dr. Shea first examined defendant, until
September 2 , he saw defendant's behavior deteriorate to a point
where he became concerned about defendant's ability to aid in his
own defense. When he finally was able to get defendant to talk
about the incident with which he was charged, defendant told him he
had been defending himself against a robot. There was nothing in
the conversations to suggest to Shea that defendant thought he was
dealing with a human being.
According to Shea, defendant even had some concerns that his
own attorney might be a robot.
Shea's diagnosis was also paranoid schizophrenia.
He testified that while acting in a psychotic schizophrenic
state, defendant could act with purpose and could act knowingly, as
those terms are defined in Montana's criminal code. However, at
the same time, defendant would not be able to understand the real
implications of his conduct because of the delusions under which he
would have acted. It was Shea's opinion that on the night of the
conduct which formed the basis of criminal charges against

20
defendant, he was suffering from a mental disease or defect which
prevented him from understanding the nature of the act he was
committing and appreciating the criminality of his conduct, even
though he was capable of acting purposely and knowingly while he
thought he was defending himself against a robot.
Dr. Herman Walters, a clinical psychologist from the
University of Montana, was retained by the State to consult with
Dr. Will Stratford for purposes of evaluating defendant. He and
Stratford, likewise, diagnosed defendant with paranoid
schizophrenia. Although he stated it would be difficult to state
what a person's mental condition was at some point in the past, he
stated that defendant's thoughts were disordered and that he was
acting in a delusional fashion during his third interview with him.
He testified that it was possible that defendant was delusional or
psychotic at the time of the incident, but he could not say for
sure. He did explain that if defendant had been delusional, his
conduct would have been based on false assumptions and false
premises. Most importantly, Dr. Walters testified that in a
delusional state, defendant could act purposely and knowingly and
still not be able to appreciate the criminality of his conduct.
There was no testimony from any witness to controvert the
expert medical opinion that, because of serious mental disease,
defendant was unable to appreciate the criminality of his conduct
at the time that he assaulted his victim.

21
 The result in this case is the worst case scenario anticipated
by national critics of Montana's insanity laws and brought to this
Court's attention in Justice Sheehy's dissent to our decision in
KoreN . There, he brought the following illustration to our

attention:
"Yet the issue of criminal blameworthiness should
require a deeper inquiry. Implicit in this concept is a
certain quality of knowledge and intent, going beyond a
minimal awareness and purposefulness. Otherwise, for
example, a defendant who knowingly and intentionally
kills his son under the psychotic delusion that he is the
biblical Abraham and his son, the biblical Isaac, could
be held criminally responsible. The Montana, Idaho and
Utah enactments, on their face, would deny a defense to
such a defendant. 'I American Bar Association, Standing
Committee on Association Standards for Criminal Justice,
Report to the House of Delegates, August, 1984, Standard
7-6.1, Commentary P.327.

Thus has Montana's abolition ofthe insanity defense
in 1979 been held up for criticism and disrespect by
national authorities and scholars.
Korell, 690 P.2d at 1009.

The majority's conclusion that abolition of the insanity
defense does not violate the due process clauses of the Montana or
Federal Constitutions is based largely on its prior decision in
Korell, and that decision's interpretation of Leland.

The inadequacy of this Court's decision in Korell, and the

inaccuracy of its analysis of Leland is thoroughly set forth by the

dissenting opinion of Justice McDevitt in state V S e a V (Idaho 1990),
.

798 P.2d 914. I agree with that analysis, and would follow it in
this case.

22
 As pointed out in the searcy opinion, there are no U.S. Supreme

Court decisions which directly address the issue of whether the
insanity defense can constitutionally be abolished. The reason is
that there are only three states which do not currently permit an
insanity defense. However, as noted by the majority in Korell:
Three older state court decisions have found state
statutes abolishing the insanity defense to be
unconstitutional. state v k n g (1929), 168 La. 958, 123
.
So. 639; Sinclairv. state (1931), 161 Miss. 142, 132 So. 581;
Statev. Strasburg (1910), 6 0 Wash. 106, 110 P. 1020.

Korell, 690 P.2d at 999. The majority distinguishes these decisions

because the statutory schemes under attack in those cases did not
permit introduction of mental disease for the limited purposes for
which such evidence is allowed under our statutory scheme.
However, I find that distinction unpersuasive.
The only reported decision outside of Montana which I am
familiar with and which specifically upholds abolition of the

insanity defense is the majority opinion in Searcy. In his

well-documented opinion dissenting from that decision, Justice
McDevitt made several important points.
First, he examined the various tests for due process that have
been set forth over the years. He observed that:
In Palkov. Connecticut, 302 U.S. 319, 324-25, 58 s.ct.
149, 151-52, 82 L.Ed. 288 (1937), Justice Cardozo wrote
that those particulars of the Bill of Rights which must
be held to apply as against the States through the
Fourteenth Amendment Due Process Clause are those which
"have been found to be implicit in the concept of ordered
liberty, ..
. I f such that Ira fair and enlightened system

of justice would be impossible without them."
23
searcy, 798 P.2d at 927.

He noted that:
The underlying theme of these various formulations
of "due process" is a sense of historical precedent upon
which American institutions were founded and our
continuing legal traditions. Thus, the proper focus in
evaluating the place of a particular doctrine in the
concept of due process is the pervasiveness of the
doctrine in the history of the common law. A review of
the extensive history of the insanity defense in the law
of England and the United States leads to the conclusion
that due process does require the availability of that
defense to criminal defendants.
searcy, 798 P.2d at 928.

As noted in Justice McDevitt's dissent, the insanity defense
has existed as an excuse to crime from the time of the reign of
Edward I during the 13th Century, and was well established by the
16th Century. searcy, 798 P.2d at 928-29. He pointed out that as

early as the 18th Century there was recorded case law to the effect
that a man deprived of reason cannot be guilty. The jury was so
instructed in Rexv. Amold, 16 How.St.Tr. 695 (1724). American cases

closely tracked English law from the time that insanity was first
considered as a defense in this country's courts. InreClark, 1 City

Hall Recorder ( N . Y . ) 176 (1816), and InreBall, 2 City Hall Recorder

(N.Y.) 85 (1817).

Then, in 1843, MpNaughten'sCase, 8 Eng.Rep. 718 (H.L. 1843), was

decided. That case provided that a person suffering from disease
of the mind, to the extent that they did not know the nature and
quality of their conduct, or did not know that what they were doing

24
was wrong, could not be guilty of a crime. The MINaughten rule, in

some form or another, has been followed in virtually every American
jurisdiction until 1979. However, whether following the MlNaughten

rule, or some other variation of the insanity defense, McDevitt
points out that the appropriateness of the defense has rarely been
questioned.
Second, McDevitt pointed out that there were three legislative
attempts to abolish the insanity defense between 1910 and 1931, but
that each of those legislative enactments were overturned by the
state supreme courts where they were attempted. seany, 798 P.2d at

932. Referring to this Court's discussion of those decisions in
Korell, Justice McDevitt pointed out that:

The Montana Supreme Court, in its recent decision
upholding the 1979 abolition of the defense in Montana,
effortlessly distinguished those three cases because
" [ t]hey interpret statutes that precluded any trial
testimony of mental condition, including that which would
cast doubt on the defendant's state of mind at the time
he committed the charged offense." Korell, 213 Mont. at
329, 690 P.2d at 999 (emphasis in original). The KoreU
court felt that Montana's allowance for psychiatric
evidence going to the issue of mensrea at trial removed
any precedential value from those three prior cases.
However, I believe that two of those cases have greater
applicability to the issues faced in Korell and by this
Court than the Montana Supreme Court would allow.
Searcy, 798 P.2d at 932.

For the reasons mentioned by the dissent in Searcy, I agree.

Finally, the dissenting opinion in Searcy points out that:

25
 Another, albeit less authoritative, test of whether
a particular doctrine is 8Bimplicitin the concept of
ordered liberty" other than the history of the legal
concept, is the unanimity with which the doctrine is
adopted among American jurisdictions. With the exception
of the three attempted legislative abolitions of the
insanity defense noted above, and the recent rejections
of the defense in Montana (1979), Idaho (1982), and Utah
(1983), the insanity defense has been universally
accepted in all American jurisdictions throughout this
nation's history.
Searcy, 798 P.2d at 934.

Based upon the foregoing, and based on the inapplicability of
those authorities relied upon by the majority of the Idaho Supreme
Court and the majority of this Court, the dissent in Searcy concluded

that:
I believe it is evident that the defense has an
independent existence of sufficient duration and
significance to entitle it to a place in our American
concept of "ordered liberty. *I
Searcy, 798 P.2d at 927.

I agree.
I believe as strongly as anyone t st innocen people mus be
protected from those who are a danger to society, whether their
behavior results from mental disease or simply an antisocial
personality. However, the alternative to imprisoning those whose
behavior results from insanity, over which they have no control, is
not to turn them loose on society. Our law prior to 1979 provided
that when a defendant is acquitted based on the defense of mental
disease or defect, he or she must be committed to the custody of
the superintendent of the Montana State Hospital for so long as

26
they remain a threat to society. Section 95-508, R.C.M. (1947).
That procedural safeguard has been carried forward to our current
statutory scheme. Section 46-14-301, MCA.
However, at a time of serious prison overcrowding, the
unavailability of public funds with which to build new prisons, and
obvious administrative problems controlling current prison
populations, the last thing in the world that makes sense is to use
prisons as warehouses for the insane. That obvious conclusion, by
itself, is a matter of public policy which should normally be of no
concern to the judiciary. But, when using prisons to house the
insane results from a denial of the due process which is guaranteed
under our State and Federal Constitutions, it should be of concern
to the judiciary. I conclude that the abolition of the insanity
defense in Montana is, for the reasons previously mentioned, a
violation of due process. Joe Junior Cowan is certifiably insane
and it was uncontroverted that at the time of the acts with which
he was charged, he did not understand that his conduct was wrong or
illegal. While the interests and safety of society may require
that he be institutionalized for the rest of his life, or the
duration of his mental illness, centuries-old standards of decency
prohibit his conviction and placement in the Montana State Prison
for an act which he could not appreciate was illegal. Therefore,
I would reverse the judgment of the District Court.

27
Justice William E. Hunt, Sr., joins in the foregoing dissent.

Justice

28
 October 6, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Margaret L. Borg
Missoula Public Defender's Office
317 Woody St.
Missoula, MT 59802

William Boggs
Attorney at Law
P.O. Box 7881
Missoula, MT 59807

Hon. Marc Racicot, Attorney Gereral
Barbara Harris, Asst. Atty. Gen.
Justice Building
Helena, Mt 59620

Robert L. Deschamps, 111,
Missoula County Attorney
County Courthouse
Missoula, MT 59802

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA , ?
,