dissenting.
I agree that the trial court erred in permitting defense counsel to attend Ber-ryman's evaluations with court appointed experts, and I agree that double-jeopardy principles prevent retrial. I cannot agree, however, that the trial court correctly denied the State's motion to exclude Berry-man's expert witnesses. Therefore, I respectfully dissent on that issue.
The majority concludes that McCall v. State, 273 Ind. 682, 408 N.E.2d 1218 (1980) compels the conclusion that a defendant who refuses to comply with the statutory scheme for interposing an insanity defense must nevertheless be allowed to offer expert opinion in support of that defense. It is true that our supreme court ruled in that case that such evidence should have been allowed even though the defendant did not cooperate with the State's expert. To say that McCall established a rule requiring that the defendant must be allowed to offer this evidence in all cases where the defendant refused to cooperate, however, paints with too broad a brush.
The essence of the rationale for the court's ruling in McCall is best summed up in the following: "The right of the trial court to impose sanctions to enforce compliance with orderly procedures is not questioned. But, due process of law simply cannot tolerate a procedure that imposes sanctions that cut out the very heart of a legally acceptable defense, for con-duet, the accountability for which is closely aligned with the central issue at trial." Id. at 1220. The court went on to clarify that the conduct in question was the defendant's "seemingly irrational refusal to cooperate" with the State's expert. Id. As I interpret the record, Berryman's refusal to cooperate is not even arguably based in irrationality. To the contrary, Berryman was quite lucid and he made it clear that the basis of his refusal was tactical-he would not cooperate with the State's expert because his counsel had instructed him not to do so. Whatever we may think of counsel's decision from a tactical viewpoint, it cannot seriously be argued that the effect of this approach was to thwart the will of the legislature. °
In Ind.Code Ann. § 85-86-2-1 et seq. (West 1998), the Indiana General Assembly authorized the defense of insanity. The statutory scheme devised by the legislature, however, requires that a defendant seeking to offer the defense must follow *747certain procedures. One of those required procedures is that the defendant must submit to a psychological evaluation by the State's expert. I am at a loss to understand why a defendant should be permitted to interpose the defense when he rationally and caleulatedly opts to flaunt the rules governing that process. Again, this is not a situation like that in McCall, where the failure to cooperate was arguably a result of the defendant's claimed insanity. Rather, Berryman followed specific instructions in making his decision and in so doing accomplished what defense counsel surely intended-he severely hampered the State's ability to rebut the insanity plea Judging by the results here, I would say the tactic is an effective one. And, based on today's ruling, I cannot imagine why, from this time forward, any defense counsel would not advise his client to stonewall the State's experts when the insanity defense is raised. I would not create a rule whose primary effect is to incentivize the willfal disregard of a statutory mandate, in clear contravention of legislative intent. Therefore, I respectfully dissent from Issue 1 of the majority's opinion.