Eugene Williams Gall, Jr. v. Phil Parker, Warden

RALPH B. GUY, JR., Circuit Judge,

concurring in part and dissenting in part.

In this death penalty habeas case, the court concludes that the jury’s verdict of guilty should be overturned and the state trial court be ordered to enter a verdict of not guilty by reason of insanity. The court styles this relief as the granting of a conditional writ of habeas corpus. The “condition,” however, is not the usual one that the state either retry or release the prisoner. Rather, the court first rules that double jeopardy would preclude the retrial of the defendant, an issue that was not raised in this appeal and an issue on which the state has never had an opportunity to be heard. The result of this holding would be to release a person who is undoubtedly guilty of the heinous offense charged and whom the court itself characterizes as likely to commit a similar offense. In order to avoid this result the court next takes the unprecedented step of usurping the role of the trial jury, which rejected the insanity defense, and finds the defendant insane.1 The state trial court is then ordered to hold an involuntary hospitalization proceeding under Ky.Rev.Stat. Ann. § 504.030 (Banks-Baldwin 1995).2

Although the court makes reference to the fact that defendant is very dangerous, incurable, and needs to be confined for the rest of his life, that is by no means the compelled result of the Kentucky civil involuntary hospitalization proceedings that will be conducted 22 years after the crime was committed. One can imagine the first thing the defendant will offer in his defense to hospitalization is that the jury found him to be sane, the state contended he was sane, and he, himself, never claimed to be insane. The defendant went so far as to act as his own counsel for much of the trial because he did not agree with his lawyer’s urging of an insanity defense. Unless you can commit a person involuntarily in Kentucky for being “crazy like a fox,” there is no guarantee that Gall will not walk away a free man as a result of this decision.

Although I have started my dissent by drawing attention to the possible dire consequences of the court’s decision, this is not the basis of my dissent. Sometimes, as Judge Jones goes to great lengths to point out, judges just have to let the chips fall where they may. At the risk of pushing a metaphor too far, the “chips” in this case are from a tree that does not need to be chopped down.

I.

After analyzing defendant’s claims of error as they relate to the guilt phase of the *338trial, the court rejects the majority of them, including the claim that Gall was not competent to stand trial. I agree with all of those sections of the court’s opinion and will only address the findings with which I take issue.3

I begin with what I believe to be the key holding in the courts opinion and the one which I believe is most clearly erroneous. The court concludes that it was the government’s responsibility to prove the absence of extreme emotional distress as an element of the offense charged.4 The court then compounds its error by concluding that mental illness equates with “extreme emotional disturbance” for purposes of the Kentucky murder statute. The applicable Kentucky statute reads in pertinent part:

507.020 Murder

(1) 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(l)(a). Nothing in the statute suggests that negating extreme emotional distress is an element of the crime of murder, or that mental illness, short of legal insanity, is a defense. That the court’s reading of the statute is erroneous is demonstrated clearly by the Kentucky Supreme Court’s holding in Wellman v. Commonwealth, 694 S.W.2d 696, 697-98 (Ky.1985).

The contention that mental illness and extreme emotional disturbance are one and the same is without merit. Prior to the adoption of KRS 507.020 (murder) and KRS 507.030 (voluntary manslaughter), the differentiating standard between the two, under the common law, was “sudden heat and passion.” The principal change in the statute does not lie in the difference in the definitions between “sudden heat and passion” and “extreme emotional disturbance,” if there is such. It lies in the fact that the former requires adequate provocation in the eyes of a reasonable man under the circumstances, while the latter requires the jury “to place themselves in the actors’ position as he believed it to be at the time of the act.” Gall, supra, at p. 108. Thus, the proper application, and point thereof, of mental illness, like intoxication on alcohol or drugs, is in the test of the effect thereof in considering such factors as events, acts or words as they relate to the particular defendant who contends that he was under extreme emotional disturbance at the time of his act.
In short, mental illness may be considered by the jury in the reaction by a particular defendant when there is probative, tangible and independent evidence of initiating circumstances, such as provocation at the time of his act *339 ivhich is contended to arouse extreme emotional disturbance. It is not such a disturbance when standing alone.

Id. (emphasis added).

Stated another way, and relating the above to the facts of this case, the “defense” or mitigation exception provided for in the Kentucky murder statute comes into play only upon a showing of “provocation,” with the significant factor being that the jury must evaluate provocation through the eyes of the defendant. If the defendant has a mental illness such that he will see “provocation” where a normal person might not, the jury has to consider this deficiency on the part of the defendant.5 This is a far cry from the court’s holding here that extreme emotional disturbance is at all times an element of the offense of murder that has to be negated even when there is no claim of “provocation” or other “initiating circumstances,” much less evidence of it. On this latter point the Kentucky Supreme Court in Gall’s appeal specifically held:

While it is true that the “extreme emotional disturbance” phase of the murder instruction did not include the additional statutory language, “the reasonableness of which is to be determined from the standpoint of a person in the defendant’s circumstances as the defendant believed them to be,” we are of the opinion that the omission was proper. Obviously that particular language is appropriate only when there is evidence suggesting that the emotional disturbance was precipitated by some event or circumstance the defendant believed to exist. In this case there was no evidence to suggest that the appellant’s motivation involved any “belief’ on his part with regard to the circumstances that induced the alleged emotional disturbance. Ratliff v. Commonwealth, Ky., 567 S.W.2d 307 (1978), is factually distinguishable in this particular respect.

Gall v. Commonwealth, 607 S.W.2d 97, 109 (Ky.1980).

The United States Supreme Court in a case involving this same Kentucky statute stated:

At trial, petitioner attempted to establish the affirmative defense of “extreme emotional disturbance.”8 He called as his sole witness a social worker, Martha Elam, who formerly had been assigned to his case. At the request of petitioner’s counsel, she read to the jury from several reports and letters dealing with evaluations of petitioner’s mental condition. On cross-examination, the prosecutor had Elam read another progress report made while petitioner was institutionalized. The prosecutor then sought to have Elam read from a report of a psychological evaluation made by Doctor Robert J.G. Lange while petitioner was within the jurisdiction of the juvenile court after his arrest for Poore’s murder. Counsel for petitioner and the prosecutor jointly had moved the juvenile court to order this evaluation under Ky.Rev.Stat. §§ 202A.010-202A.990 (1977), which, at the time, governed involuntary hospitalization for psychiatric treatment. *340showing of mental illness, see Wellman, supra, at 697.

Buchanan v. Kentucky, 483 U.S. 402, 408-11, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987) (emphasis added) (some footnotes omitted).

In reaching its conclusion relative to the Kentucky murder statute, the court misreads Ratliff v. Commmonwealth, 567 S.W.2d 307 (Ky.1978), and Edmonds v. Commonwealth, 586 S.W.2d 24 (Ky.1979).

The defendant in Ratliff believed there was a conspiracy against her, and that the retail store clerk she shot and killed was part of the conspiracy.

Appellant believed the store clerk was a conspirator against her. She testified: “... Charlie Gilbert went up and told that woman at the store, the one I shot; he went up there and told her not to sell me nothing out of the store.... ” “They watched me, yes, and got smart with me and they acted like they wanted to bother me the Mullens girl and there’s another girl come in from across the street, a little black headed girl, and they both got together there and I thought they was going to jump me.” Appellant told state police detective Bellamy, “That lady (the victim) looked at me as if she was going to pull my hair.” Appellant had been on medication and had been visiting the local Comprehensive Care Center for some time prior to the shooting for treatment of her mental condition.

Ratliff, 567 S.W.2d at 309.

In Ratliff there was also psychiatric evidence that the defendant was a paranoid schizophrenic, and a defense of insanity was asserted. Although the court instructed on the insanity defense, it did not give the first-degree manslaughter instruction contemplated by the statute when the facts justify mitigation as a result of extreme emotional disturbance. The conclusion of the Ratliff court was that the instruction should have been given because the defendant thought the victim was conspiring against her, and the jury should have evaluated this delusion based upon defendant’s paranoid schizophrenia. Thus, clearly, the court found the necessary predicate provocation to be the defendant’s delusion that the victim was plotting against her. Once the predicate provocation is found, then, and only then, the prosecution has the burden of negating extreme emotional disturbance as a mitigating factor. Illustrating this point, the court in Ratliff stated:

In the case presently before us, the prosecution carried the burden to satisfy the jury of the absence of extreme emotional disturbance as statutorily defined. The defendant carried the burden to convince the jury that she was legally insane at the time of the commission of the offense. KRS 504.020. If the jury had a reasonable doubt that the defendant had been proved not to have acted under the influence of extreme emotional disturbance for which there was a reasonable justification or excuse under the circumstances as she believed them to be, the punishment they could otherwise assess for murder could have been mitigated by a finding of first degree manslaughter. Of course, if the defense of legal insanity had been believed by the jury the result would have been complete exculpation and not mitigation of punishment.

Id. at 309-10 (emphasis added).

Even under these circumstances, three of the seven Kentucky justices dissented. The language in the dissent is illuminating:

There is no doubt that Clarsie [the defendant] was suffering from a mental disease. She was classified by a psychiatrist as a schizophrenic paranoid. A psychiatrist testified that she might commit a similar offense again and again. If an iota of evidence existed that Clarsie was acting under extreme emotional disturbance I would join the majority in saying that she was entitled to an instruction on first-degree manslaughter. I do not believe it is the *341function of this or any appellate court to embark on a crusade to find errors where none exist.

Id. at 310. At the risk of stating the obvious, the disagreement between the majority and dissent did not involve whether extreme emotional disturbance was an element of the crime of murder, but, rather, notwithstanding that defendant suffered from a serious mental illness, was there a factual predicate, i.e., provocation, sufficient to even require the , jury to look at the killing through the eyes of the defendant.

Similarly, in Edmonds the defendant, who had a “psychoneurotic condition,” was infatuated with the woman he murdered. In describing the circumstances immediately surrounding the murder the court stated: “The appellant [defendant] was jealous of Betty [the victim] and on this fateful afternoon was laboring under the impression that she was going out with another man.” Edmonds, 586 S.W.2d at 26.

As in Ratliff, the issue in Edmonds was the trial court’s failure to give a first-degree murder instruction. In finding error in the failure to do so, Edmonds is totally consistent with Ratliff. The predicate, the delusion that the victim was seeing another man, was present and, when coupled with the defendant’s mental condition, would require the jury to look at the murder through the eyes of the defendant.6

In Gall, the Kentucky Supreme Court did not find that there was insufficient evidence of any predicate which would trigger the extreme emotional disturbance defense, but that there was “no evidence.” In my view, this is a factual finding which must be accorded great deference. It also is clear beyond peradventure that it is correct. There was never even a suggestion that the 12-year-old girl, who Gall raped and then shot, somehow in Gall’s eyes had done something to provide “a reasonable explanation or excuse” for his actions. The most Gall offers is that he doesn’t remember the killing. This might be relevant to his insanity defense, but is not a basis for holding that the “extreme emotional disturbance” provision of the murder statute was called into play.

One additional Kentucky case is worthy of mention although it must be read against the backdrop of the other Kentucky cases which make it clear that the extreme emotional disturbance language in the murder statute is a term of art and is not intended, to apply whenever a person, in the abstract, may be emotionally disturbed as that term is commonly understood. In Coffey v. Messer, 945 S.W.2d 944, 945 (Ky.1997), the court added further clarification to this discussion:

Although we have occasionally described EED as a mitigating circumstance, e.g., Gall v. Commonwealth, Ky., 607 S.W.2d 97, 108 (1980), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824, [ ] (1981), it is, in fact, a defense to the extent that its presence precludes a conviction of murder. KRS 507.020(l)(a). We have often characterized EED as a defense, and it is referred to as a “defense to the crime” in the mitigating circumstances section of our capital penalty statute. KRS 532.025(2)(b)2. Once evidence is introduced to prove the presence of EED, its absence becomes an element of the offense of murder. Gall v. Commonwealth, supra, at 109. As with other penal code defenses, the Commonwealth then assumes the burden of proof on the issue but is not required to produce *342direct evidence of its absence. Matthews v. Commonwealth, Ky., 709 S.W.2d 414, 421 (1985), cert. denied, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 170, [ ] (1986). Evidence of EED entitles the defendant to an instruction on the lesser included offense of first-degree manslaughter. KRS 507.030(1)(b). Although a lesser included offense is not a defense within the technical meaning of those terms as used in the penal code, it is, in fact and principle, a defense against the higher charge. Gall v. Commonwealth, supra, at 108; Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257(1977).

Id. at 945-46 (footnote omitted) (emphasis added).

Coffey is significant for another reason. It makes clear that when a defendant introduces evidence that he was acting under extreme emotional disturbance, it is not a defense which could result in an acquittal, but only a defense that allows the defendant to have the jury instructed on the lesser included offense of first-degree manslaughter. Even though he wasn’t entitled to it, Gall received the benefit of such an instruction. In short, the trial court actually proceeded as if it were a case in which the defendant was entitled to the instruction on the lesser included offense.

Having found the prosecution failed to prove an element of the offense, the majority next addresses the finding to the contrary by the Kentucky Supreme Court (section III B 2 c of the court’s opinion). The court concludes that the Kentucky Supreme Court’s decision violated due process by shifting “the burden to defendants to produce evidence of emotional disturbance.” There are several things wrong with this conclusion. First, what the Kentucky Supreme Court actually said was:

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, in view of its historical development and the expression in the Commentary to the effect that it may be aroused by “any event, or even words,” as quoted above. 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 ivas done.

Gall, 607 S.W.2d at 109 (emphasis added).

This was the holding of the Kentucky court. Here, the majority, which quotes this portion of the Kentucky opinion, leaves out the language concerning the historical development of this section and then goes on to quote and rely upon language in the opinion that is clearly dicta and not controlling in this case. Nonetheless, the Kentucky court clearly found that the view of the statute which makes negating extreme emotional disturbance an element of the crime of murder was the one taken by the trial judge, and that this was demonstrated by the instruction the trial judge gave to that effect.

Stated another way, assuming arguendo that the Kentucky Supreme Court in Gall’s direct appeal did place an interpretation on the murder statute that differed from the interpretation it was previously given in Ratliff and its progeny, it makes no difference because the trial court proceeded in a manner consistent with Ratliff. I say “assuming arguendo ” because one must not lose sight of the fact that the Kentucky court in Gall concluded that Ratliff was “factually distinguishable” and, as I have pointed out earlier, such was indeed the case.

In addition to being based upon a misinterpretation of the Kentucky murder statute as well as the case law interpreting that statute, the majority’s conclusion will not stand up under logical analysis. For example, if a person is charged with murder under the Kentucky statute and all *343that is offered by way of defense is a claim by the defendant that he was in another state at the time of the murder, there would be no need for the prosecution to offer any evidence of the defendant’s mental state. Yet, if, as the majority claims, the absence of extreme emotional disturbance is an element of the crime of murder it would have to be proven in all cases. To merely state this proposition is to show its absurdity. When all of the Kentucky cases dealing with the Kentucky murder statute are read, both those that precede Gall’s crime and those that follow, it is clear that when “extreme emotional disturbance” is referenced in the same breath with “element,” all that is intended is that once a defendant provides the necessary evidentiary predicate, the prosecution has the burden of proof on that issue.

Thus, the court’s analysis concluding that the Kentucky Supreme Court violated due process, proceeds from an erroneous premise as to what the court actually ruled relative to Gall’s appeal, as well as a misreading of the earlier cases. The trial judge, in fact, proceeded in a manner consistent with what the majority contends was the then-existing law and instructed the jury appropriately.

In a case in which there is a claim of acting under extreme emotional disturbance and an insanity defense, the difference between the two must be kept clear. 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. This distinction is critical in this case. Everyone would agree that Gall had mental problems and had previously been institutionalized. Yet, Gall presented nothing that would require or permit the jury to see the crime through his eyes because “no reasonable explanation or excuse” was offered as is required by the statute. At the risk of repeating myself, there has to be something either done by the victim or inherent in the circumstances surrounding the murder that would arouse extreme emotional disturbance and allow the jury to consider whether the defendant acted under such disturbance, which would then allow the crime to be viewed as first-degree manslaughter.

After erroneously concluding that the prosecution failed to prove an element of the crime of murder, the court then goes on to further find Gall was insane when the crime was committed 22 years ago. This finding is made without any discussion of what must be shown under Kentucky law to establish the defense. In Kentucky, a defendant offering an insanity defense bears the burden of proof. The relevant Kentucky statutes provide:

500.070 Burden of proof; defenses

(1) The Commonwealth has the burden of proving every element of the case beyond a reasonable doubt, except as provided in subsection (3). This provision, however, does not require disproof of any element that is entitled a “defense,” as that term is used in this code, unless the evidence tending to support the defense is of such probative force that in the absence of countervailing evidence the defendant would be entitled to a directed verdict of acquittal.
(2) No court can require notice of a defense prior to trial time.
(3) The 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.

504.020 Mental illness or retardation

(1) A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or retardation, he lacks substantial capacity either to appreciate the *344criminality of his conduct or to conform his conduct to the requirements of law.
(2) As used in this chapter, the term “mental illness or retardation” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(3) A defendant may prove mental illness or retardation, as used in this section, in exculpation of criminal conduct.

Ky.Rev.Stat. Ann. § 504.020. The commentary to § 504.020 states:

The section also adopts the prior law which governed the burden of proof on the issue of insanity. Previously the defendant had to bear that burden; and, subsection (3) of this section continues to require that the defendant prove his insanity.

In concluding Gall was insane, the court relies upon statements by two psychiatrists concerning Gall’s existing mental condition who never unequivocally said that, on the day of the murder, Gall either didn’t understand what he was doing or, if he did, that he was unable to resist the impulse to violate the law. There is no doubt that the “mental disease or defect” prong of the insanity defense was satisfied, but a “snapshot” of Gall’s mental condition on the day of the murder was never presented to the jury with any degree of certainty, or in a form they would be compelled to accept. Upon cross-examination by the prosecutor, Dr. Noelker, the defense expert, was unable to specify even one event which might have caused Gall to leave the state of remission he was in and suddenly become legally insane at 8:00 a.m. on the day he murdered Lisa Jansen.-Noelker also admitted that because of Gall’s claimed amnesia, his mental condition on the day of the murder was difficult to ascertain.

Although the majority concludes on the basis of the expert testimony that Gall was insane on the day of the rape and murder, the jury certainly was not required to reach that conclusion. As the Kentucky Supreme Court points out in its lengthy opinion affirming Gall’s conviction, this was an unusual trial in many respects, not the least of which was that Gall acted, at least in part, as his own counsel. The Kentucky court found, and I agree, that some of the so-called bizarre trial tactics indulged in by Gall were actually very clever.7 The jury had an opportunity to observe the defendant in action in a manner seldom afforded to juries in criminal cases, much less those in which an insanity defense is offered. There is absolutely no rule of law, evidence, or procedure, which would have compelled this jury to find Gall insane. Neither does common sense compel that result. In addition to seeing Gall in action, the jury heard from several persons who had a chance to observe Gall and his demeanor within hours of the murder. The jury was entitled to credit this “snapshot” of Gall and conclude that he appreciated the criminality of his conduct and was able to resist the impulse to commit the murder if he had chosen to do so.

II.

The court also concludes, as another ground for reversing Gall’s conviction, that egregious prosecutorial misconduct occurred. I respectfully disagree. I first note that the court’s decision to acquit the defendant by reason of insanity subsumes all other errors unless they relate to Gall’s insanity defense. Thus, the focus, insofar as alleged prosecutorial misconduct is concerned, must be on the alleged acts of misconduct which bore on the insanity defense. The court does point to several comments made by the prosecutor in closing argument, but in each and every instance the remarks are taken out of context and ignore the very essence of the way this trial unfolded.

*345Although not always the case, generally when a defendant offers an insanity defense there is little doubt that he committed the crime and the insanity defense is his last resort. Such is the case here. Gall never made a believable claim of innocence, and the majority opinion does not even hint at innocence. Therefore, it is understandable that under these circumstances the prosecutor would bring out his heaviest artillery and direct it at the insanity defense. This certainly is not a license to make improper arguments, but the arguments that were made have to be viewed against the backdrop of the nature of the insanity defense in this case.

To begin with, there is no doubt given Gall’s history that any health professional brought in to testify would indicate Gall suffered from a mental disease. This explains why the government did not offer additional psychiatric testimony, a fact that the majority seems to find significant. But just as there are many schizophrenics who function day-to-day in society and commit no crimes, there are schizophrenics who, at the time they commit a crime, are able to distinguish right from wrong and are not acting under an irresistible impulse. In this case, the prosecution’s theory was that Gall was faking the inability to remember the events surrounding Lisa Jansen’s death. This point is worthy of further elaboration.

Gall was in a bind in that even though no eyewitness saw him rape and shoot Lisa Jansen, he was positively identified as the perpetrator of the store robbery and police officer’s shooting that took place shortly after the time of Lisa’s murder. Gall admitted that he remembered the police chasing him and remembered shooting the state trooper, but indicated he could not recall his actions immediately before that. The circumstantial evidence tying him to Lisa’s murder was very strong. Under these circumstances, it should not be surprising that the prosecution felt this was a very convenient case of amnesia and argued accordingly. Into this mix came Gall’s participation in his own trial. It is clear that Gall was seeking to get a full acquittal on the merits, even though his counsel was relying on an insanity defense. This working at cross purposes was further evidence in the eyes of the prosecutor that insanity was a sham defense in this case. Gall was doing his best to show the jury he was sane and innocent, while the experts called by his attorney were trying to show he was insane. The testimony of the experts thus became critical. Although the prosecutor’s attacks on their testimony may have been inartful and at times even inappropriate, they were all for the purpose of trying to keep the jury from confusing the fact that Gall had a mental disease with the conclusion that as a result he was legally insane — a very legitimate goal. As the Supreme Court stated in Barefoot v. Estelle, 463 U.S. 880, 898, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), “[pjsychiatric testimony predicting dangerousness may be countered not only as erroneous ... but also as generally so unreliable that it should be ignored.”

To the degree that the prosecutor committed the “I believe” sin, it was clearly harmless error. This was not a case of a prosecutor vouching for some government agent or secret informant’s credibility, but, rather, of a prosecutor commenting on the testimony of experts in a field in which the jury knew the prosecutor had no special expertise. In light of the jury’s extensive opportunity to see Gall in action, the jury was in a far better position than is usual in a case involving an insanity defense to weigh the testimony of the experts in the context of all the other relevant facts. Although the prosecutor arguably erred when he urged the jury to not let Gall return to society, the jury was already aware that a verdict of not guilty by reason of insanity would have its consequences. Furthermore, the prosecutor did not overstate the consequences. As I pointed out earlier, in any post-trial civil commitment proceeding the test is not whether the defendant was insane when he *346committed the crime, but whether he is insane now. As the Kentucky Supreme Court stated in Gall’s appeal: “it cannot be truthfully said that he will be committed, because if he is sane enough to be participating in the trial there is very little likelihood of his being validly found insane immediately thereafter.” Gall, 607 S.W.2d at 111 (emphasis in original).

On direct appeal, the Kentucky Supreme Court thought so little of the allegations of prosecutorial misconduct that it spent little or no time in discussing them. Now, on habeas review, with its narrower scope, the majority finds these unobjected to instances of prosecutorial conduct to be sufficient to require a reversal. This hardly affords the decision of the state court the deference that is due.

III.

I now turn, to the best of my ability to follow it, to the tortured path followed by the court to reach its conclusion that there was a violation of Gall’s Sixth Amendment confrontation rights sufficient to mandate an acquittal. The government presented the testimony of its only mental health professional, Dr. Chutkow, by videotape deposition. We were not told why this was done. It is clear from the record, however, that Gall’s counsel informed the court that if the prosecution did not offer Dr. Chutkow’s testimony, he would. In any event, the court concludes that any claim of error was procedurally defaulted and that Gall cannot show cause for the default. Nonetheless, the court then goes on to find the circumstances here qualify for the “fundamental miscarriage of justice” exception because “the Confrontation Clause violation clearly stood in the way of an acquittal for reason of insanity.” This result-oriented conclusion simply won’t hold water. Not speaking pejoratively, I use the term “result-oriented” because the court had to find a way to keep this defendant in custody after vacating his murder conviction, and this was the vehicle for doing so.

It was not the strategy of the government to try to find someone who would say that Gall was a perfectly normal human being. The government was content to counter the defense experts with the facts of the case and what the jury would learn for themselves from observing the defendant. Contrary to what the court concludes, the defendant was better off having Dr. Chutkow testify by deposition than in person. His deposition testimony, which was limited to his involvement in the competency phase of the trial, was of little value. So much was this the case that I firmly believe the defense decision not to raise an objection to the videotape deposition was a strategic decision and a good one to boot.8

Dr. Chutkow could only have made his testimony more valuable to the government if he had testified in person. As the court points out — ironically it seems to me — Dr.Chutkow’s testimony was of little or no value on the issue of insanity. Nonetheless, the court would elevate its significance through the bald and erroneous conclusion that “Dr. Chutkow provided the only evidence rebutting [the] showing of insanity.” This statement shows that, once again, the court simply misses the mark. There were no witnesses to the rape and murder or to Gall’s claimed amnesia. The jury was free to draw its conclusion on the issue of insanity from (1) its impressions of Gall’s demeanor; (2) testimony from lay witnesses about Gall’s emotional and mental state near the time of the crime; (3) expert testimony offering post-hoc clinical conclusions as to Gall’s general mental and emotional condition; and (4) conflicting opinions as to the genuineness of Gall’s amnesia.

Gall’s claim of amnesia was critical to his insanity defense, and a rational trier of fact need not have credited this claim. A rational trier of fact could have concluded that although Gall was a paranoid schizo*347phrenic, he killed during a period of remission in which he understood the criminality of his actions and was not acting pursuant to an irresistible impulse.

In sum, it is impossible to conclude that the jury gave undue weight to Dr. Chud-kow’s testimony since all he said was that Gall was competent to.stand trial, and the jury observed that for themselves. As the court concludes, the Confrontation Clause issue has been procedurally defaulted and not only has cause not been shown for the default, but, rather, a good reason why the issue was never raised is apparent. The only “fundamental miscarriage of justice” that has occurred is the court’s.conclusion that despite the jury’s verdict to the contrary, Gall must be found not guilty by reason of insanity.9

607 S.W.2d at 112.

. This section reads:

504.030 Disposition of person found not guilty by reason of insanity

(l)When a defendant is found not guilty by reason of insanity, the court shall conduct an involuntary hospitalization proceeding under KRS Chapter 202A or 202B.
(2)To facilitate the procedure established in subsection (1) of this section, the court may order the detention of the defendant for a period of ten (10) days to allow for proceedings to be initiated against the defendant for examination and possible detention pursuant to the provisions of KRS Chapter 202A or 202B.

Ky.Rev.Stat. Ann. § 504.030.

. In overturning the defendant's conviction, the court malees the penalty phase of the trial moot. Since the court has addressed this issue, however, I would indicate my concurrence in the result reached on the penalty issue without subscribing to all of the analysis used by the court to reach its result.

. This conclusion is also the lynchpin of the court's double jeopardy analysis. Thus, if this conclusion is wrong, the double jeopardy analysis is also wrong, and retrial would not be barred.

. By "provocation” I do not mean to imply that the victim has to have done something to provoke the defendant. Although such might be the case as in the classic shooting of a spouse found in bed with another, the term, in this context, would include such claims by a defendant as "God told me to shoot this person.”

At the time of the offense, the settled law in Kentucky was that this defense was available only where the defendant established two elements: that the defendant had been provoked, and that the defendant had acted in a subjectively reasonable way given this provocation. See Gall v. Commonwealth, 607 S.W.2d 97, 108-109 (Ky.1980); Wellman v. Commonwealth, 694 S.W.2d 696, 697-698 (Ky.1985). The defendant has the burden of production on this defense, see Gall, supra, at 109, which cannot be established simply by a

. Even if one were to assume that both Ratliff and Edmonds somehow presented a different view of the Kentucky murder statute than the view expressed in Gall, they would provide no support for the majority’s conclusion that the decision in Gall, as it related to the extreme emotional disturbance defense, resulted in an ex post facto violation since both cases were decided after the date of Gall’s offense.

. Gall has an I.Q. of 124.

. Significantly, the court rejects Gall’s claim of ineffective assistance of counsel.

. After I circulated my dissent the majority made revisions primarily aimed at responding to my dissent. After carefully reviewing the revisions, I have concluded no further modification of my dissent is necessary. I have clearly set forth the basis of my disagreement with the court's analysis and to write further would serve no useful purpose.