Millard v. State

Murphy, C. J., delivered the opinion of the Court. Charged with the offense of robbery with a deadly weapon, appellant filed a written plea that he was insane at the time of the commission of the crime under Maryland Code, Article 59, Section 9 (a), which provides: “A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial.capacity either to appreciate the criminality of his conduct or to conform his conduct to the require- ⁴²¹ merits of law. As used in this section, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” The basis for appellant’s insanity plea, as later unfolded at the trial, was that he had an extra Y chromosome in the brain and other cells of his body which constituted, within the meaning of Section 9(a), a mental defect resulting in his lacking substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. At the trial before a jury in the Circuit Court for Prince George’s County, the State established the corpus delicti, adduced proof of appellant’s criminal agency, and then rested its case.

Thereafter, under the prescribed Maryland procedure, it became incumbent upon the appellant in undertaking to establish his insanity defense to first adduce sufficient competent proof in support thereof, out of the presence of the jury, from which the trial judge could properly find, as a preliminary matter of law, that the presumption of sanity had been rebutted and a doubt raised in the minds of reasonable men as to his sanity. See Jenkins v. State, 238 Md. 451 ; Fowler v. State, 237 Md. 508 ; Saul v. State, 6 Md. App. 540 ; Strawderman v. State, 4 Md. App. 689 ; McCracken v. State, 2 Md. App. 716 . To this end, and in conformity with the approved procedure, appellant adduced evidence through the testimony of a Lieutenant at the Prince George’s County jail showing that while in confinement appellant was agitated, nervous, upset, and became so violent on occasions that he had to be handcuffed and shackled in leg irons; that appellant cut himself five or six times on his arm between the elbow and the wrist, resulting in severe bleeding, although no arteries were severed; that these cuts “ran the gamut from scratches to very severe cuts requiring quite a number of sutures”; and that as a result of his condition, appellant was sent to three different hospitals for treatment and evaluation. ⁴²² Dr. Cecil Jacobson, the appellant’s only medical witness, testified that he was an Assistant Professor in the Department of Obstetrics and Gynecology and Chief of the Reproduction Genetics Unit of the George Washington University School of Medicine; that he had obtained a degree in genetics from the University of Utah in 1960 and was “a research teacher teaching the full-time faculty” at the University; that he had published 42 articles in the field of genetics, had conducted extensive research in the field, supervised a number of genetics laboratories, and was a consultant in genetics to the Federal Government. He stated that in 1964 he also obtained a medical degree and was licensed to practice medicine in Maryland, Virginia and the District of Columbia; that he had interned for one year in 1964-1965 but did not serve a residency in medicine but “went directly into the academic program [at George Washington University] because he had an active teaching responsibility as a medical student.” He testified that while he received formal training in psychiatry as a medical student, and had received clinical experience in the psychiatric wards during his medical internship, he was not a psychiatrist, had received no post-graduate training in psychiatry, was neither Board eligible nor Board certified, and had “no competence” in the field of psychiatry beyond that possessed by “the conventional physician.” He testified that he was in the active practice of “academic medicine” but only as a consultant to other physicians; that he had ■participated in a number of research protocols in mental illness; that a considerable portion of his practice in genetics fell within the area of mental illness, “especially mental retardation;” that he had acquired intimate experience counselling patients who sought therapeutic abortions to realize the “psychological implication of the miscarriage;” and that a considerable part of his genetics practice involved “counselling the recurrence significant of birth defects” — an area which he said fell within “the realm of psychiatric practice.” Dr. Jacobson testified that genetics was “a sub-special ⁴²³ ity biology” having “quite a bit of inference in medicine,” involving a specific diagnostic technique dealing with the “very basis of human development, the chromosome material that “chromosomes [in the cells of the body] are the way that all genetic machinery is passed from one generation to another;” that “all things that are passed on from parent to child must go through chromosomes;” and that 46 chromosomes constituted the normal complement per cell and a person who possessed 47 chromosomes was genetically abnormal.

Dr. Jacobson testified that on December 16, 1968, appellant was examined and his body cells found to contain an extra Y chromosome (XYY); that the presence of this extra chromosome constituted a “basic defect in the genetic complement of the cell” affecting not only the way the cells grow in the body, but also the physical growth of the body itself; that the presence of the extra Y chromosome caused “marked physical and mental problems” affecting the manner in which persons possessing the extra Y chromosome “will react to certain stimulus; certain physiological problems; certain behavioral characteristics.” Dr. Jacobson then told of appoximately 40 published reports indicating that persons possessed of an extra Y chromosome tended to be very tall, with limbs disproportionate to their body; that such persons had marked antisocial, aggressive and schizoid reactions and were in continual conflict with the law. Dr. Jacobson stated that he had never previously testified in court. Asked whether he was familiar with the Maryland test of insanity, as defined in Section 9(a), he said that he had never read it, but believed it contained two parts — “One, whether there was a basic defect involved, and, secondly, whether or not the person is competent for his act.” Section 9(a) was then read to Dr. Jacobson, and he was then asked whether appellant was insane. Dr. Jacobson responded with a professorial narrative of appellant’s genetic make-up, after which he concluded that “if the definition of insanity has a mental de ⁴²⁴ feet, the answer is yes, he has a mental defect based upon his abnormal [chromosome] test.” Asked whether the “defect” was such as to cause appellant to lack “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law,” Dr. Jacobson answered: “I cannot say that because I have not examined him as a psychiatrist.

I have no competence in that area.” Appellant’s counsel then told the court that he intended to show through “case histories” that individuals having the extra Y chromosome have extremely aggressive personalities, “to the extent that most of them end up in jail for one reason or another because of their aggressive reactions.” Dr. Jacobson was then asked to examine appellant’s arms to determine whether the cuts thereon were “suicidal or merely attention cuts.” Dr. Jacobson did so briefly and stated that based on his experience as a medical doctor, he believed the cuts constituted an actual attempt at suicide; that based on this fact, and his brief questioning of appellant during a five-minute court recess, he felt appellant’s “reactions” were not normal; that appellant had a fear of “forceful activity with an attempt at extension of this regression and a lack of adequately controlling this;” that although he was “greatly restricted” by not knowing the “developmental history” of appellant, he believed, based upon the testimony of the jail lieutenant concerning appellant’s conduct while in confinement, including the suicide attempts, coupled with appellant’s genetic defect, that “this does not fall within the realm of sanity, as I understand it.” Dr. Jacobson then testified that the extra Y chromosome in appellant’s genetic make-up affected his behavioral patterns, as reported in other cases of persons similarly possessed of the extra Y chomosome. He conceded that persons having the extra Y chromosome may differ among themselves depending upon “what other physical effects are found in the body of the XYY,” environment also being ⁴²⁵ a factor accounting for differences between XYY individuals. Under further questioning by the trial judge, the prosecutor, and defense counsel, Dr. Jacobson stated that appellant’s genetic defect — which he characterized as a mental defect — Influenced “his competence or ability to recognize the area of his crime;” that appellant had a “propensity” toward crime because of his genetic abnormality; that based upon the medical literature, the appellants’ conduct and behavioral patterns, and his genetic defect, he was insane and not even competent to stand trial. The doctor defined insanity in terms of the “ability to comprehend reality” or the “inability to judge one’s action as far as consequence.” Dr. Jacobson next testified that he had “insufficient evidence” upon which to base a conclusion whether appellant appreciated the consequences of his action, but that because he