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NGI Procedure – Abandonment of NGI Plea and Necessity of Personal Colloquy

State v. Jennifer F. Francis, 2005 WI App 161
For Francis: Hans P. Koesser

Issue: Whether the trial court must engage the defendant in a personal colloquy before allowing an NGI plea, § 971.06(1)(d), to be abandoned.

Holding: Because an NGI plea is not a constitutional or otherwise fundamental right, a personal colloquy with the defendant isn’t a precondition to withdrawal of the plea, ¶¶15-22.

¶23      The following summary distills what, from these cases, we ascertain to be the prevailing rules.  First, defendants can withdraw their NGI pleas through counsel rather than personally. In deciding whether to withdraw a plea of NGI, counsel has no right to act contrary to the defendant’s expressed wishes, as the decision ultimately belongs to the defendant.  See People v. Blye, 43 Cal. Rptr. 231, 234-35 (Cal. Ct. App. 1965); State v. Tenace, 700 N.E.2d 899, 906 (Ohio Ct. App. 1997); >State v. Byrge, 225 Wis. 2d 702, 727, 594 N.W.2d 388 (Ct. App. 1999), aff’d, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477. In the absence of an objection, however, counsel acts on the defendant’s behalf when counsel withdraws the defendant’s NGI plea and may exercise professional discretion in choosing whether or not to do so. See People v. Gaines, 375 P.2d 296, 298-99 (Cal. 1962), overruled on other grounds by People v. Morse, 388 P.2d 33 (Cal. 1964);Blye, 43 Cal. Rptr. at 233-34; see also Tenace, 700 N.E.2d at 904-06, 908 (reversing judgment of conviction because defendant objected on the record); People v. Baker, 58 Cal. Rptr. 691, 694 (Cal. Ct. App. 1967) (objection must be affirmative; the defendant cannot idly stand by and later claim that counsel acted improperly).

The foregoing language is very broad, but it is surely relevant that Francis pleaded guilty after striking a plea bargain. It’s fair to assume that the plea bargain wrapped up all the pending issues, including the NGI plea, although this idea does not seem to have informed the result. Would a contest in Phase I have made a difference? Not according to Weber v. Israel, 730 F.2d 499, 506-08 (7th Cir. 1984) (NGI plea is affirmative defense and its withdrawal a matter of tactics by counsel; thus, no error where following guilty verdict pending NGI plea simply ignored). But that case, not cited by but nonetheless much like this one, involved extreme facts; at the other end of the scale are such cases as Mirzayance v. Hickman, 66 Fed. Appx. 676, 679-680 (9th Cir. 2003):

 Weber involved the abandonment of an insanity defense, but there were tactical reasons for its abandonment. The counsel in Weber abandoned an insanity defense because the prosecution had two psychiatric reports stating that Weber was not suffering from a mental disease or defect at the time of the alleged crimes, one of which referred to Weber as “malingering,” and defense counsel had no psychiatric reports to the contrary. Id. at 506-07. The decision to abandon the insanity defense in Weber also took place prior to the guilt phase. Id. at 505. Defense counsel thought that if the jury knew an insanity phase would follow, the jurors would not give the defendant as much deference on the merits. Id.In Mirzayance’s case, the insanity defense was withdrawn after the guilt phase and there was a cadre of experts ready to testify that Mirzayance was insane. Dr. Markham, Dr. Sharma, Dr. Vicary, and Dr. Blum were all prepared to testify that Mirzayance met the standard for legal insanity. SeeProfitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) (“We cannot baptize the decision to forego the insanity defense with the rejuvenating labels of ‘tactical’ or ‘strategic’ choice. Judges wisely defer to true tactical choices — that is to say, to choices between alternatives that each have the potential for both benefit and loss … we simply can see no advantage in the decision to bypass the insanity defense.”) (emphasis in original); see also United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (“We have a hard time seeing what kind of strategy, save an ineffective one, would lead a lawyer to deliberately omit his client’s only defense, a defense that had a strong likelihood of success, and a defense that he specifically stated he had every intention of presenting.”).

Not quite clear, either, how to square that Weber with this one: State v. Weber, 146 Wis.2d 817, 433 N.W.2d 583 (Ct. App. 1988), which without providing any factual background simply indicates, “For some reason, the trial court never afforded him the second phase of his trial after the jury came back with a guilty verdict on the first phase”: and as a result, the court remanded for NGI-phase trial (not, to be sure, much discussion on this point; same Ray Weber, by the way, but different case).Nor should it be assumed that an NGI plea is merely a matter of tactics. See, e.g., State v. Bean, 171 Vt. 290, 762 A.2d 1259 (Vt. 2000) (“We join these courts and hold that the decision whether to assert an insanity defense lies with defendant, and not defense counsel. Under this rule, it was improper for defense counsel to assert an insanity defense over defendant’s objection in this case.”). Indeed, Francis clearly indicates that the defendant has veto-power over the issue of withdrawal of the plea, once entered, ¶23, though it is much less clear whether a violation of that principle must be raised as ineffective assistance of counsel, with its required showings of deficient performance and prejudice.

And for an interesting permutation of the problem – challenge to pursuit of NGI plea on ground of misapprehension that the plea would support defense on lack of intent – see Morgan v. Israel, 735 F.2d 1033 (7th Cir. 1984) (denying relief, albeit with this trenchant observation: “The proposition that you can be insane yet be able to form the intent required for an utterly criminal deliberate act such as first-degree murder smacks of paradox.” But, given that the author is Judge Posner, the opinion goes on to offer a way out of the dilemma.)


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