A RECENT NEW YORK CASE SHOWS WHY THE "EXTREME EMOTIONAL DISTURBANCE" DEFENSE SHOULD BE ABOLISHED

Two weeks ago, the New York Court of Appeals - the State's highest court - heard the case of People v. Roche. Ramon Roche had stabbed his common-law wife, Lillian Rivera, twenty-three times; hidden the murder weapon; changed his clothes; and then told the police Rivera killed herself. At trial, Roche said he was innocent. Two juries have disagreed, finding Rivera guilty as charged.

An intermediate appellate court, however, overturned the latest jury verdict. It held that Roche should receive a new trial, so that the jury can consider the defense of "extreme emotional disturbance" - an affirmative defense that could reduce the charges from murder to manslaughter. Now Roche's fate is in the hands of New York's highest court.

In New York, the "extreme emotional disturbance" defense works like this. First, the defendant must prove he was more than just angry. Doubtless, anyone who fatally attacks another is angry. He must prove that he was so emotionally disturbed that he actually lost control.

Second, the defendant must prove that there was, in the words of the New York penal code, a "reasonable explanation or excuse" for his emotional disturbance. What's reasonable is determined from the defendant's viewpoint.

As described, the defense sounds quite strange. And the more one examines it, the stranger it becomes. Indeed, we should seriously consider eliminating it altogether.

Why Does the "Extreme Emotional Disturbance" Defense Exist?

At the outset, it's worth asking precisely what gap in the criminal law this defense is intended to plug.

The law also protects those suffering from a mental disease or defect. All states allow a defendant to prove that due to a recognized mental defect, the defendant was not responsible for his actions the way most of us usually are.

New York law is clear, however, that an extreme emotional disturbance is something less than insanity. You don't have to be crazy to reduce the charges from murder to manslaughter; you just have to be really, really wigged out. Nor do you have to legitimately believe you are in danger at any time - current, past, or future - to establish the extreme emotional disturbance defense.

That leads to an important question: Why does this defense exist? If you are neither suffering from a mental disease or defect, nor in fear of harm - and you have actual physiological control over your actions, even though you lack emotional control - then it seems entirely reasonable that you should not be able to excuse, or even mitigate the consequences of, your attack on another person.

The criminal law exists in part to encourage people to walk away before the merely stressful explodes into the seriously violent. We all lead stressful lives. The law (and its punishments) ensure order by compelling us to confine our reactions to those stressful lives within non-injurious limits.

The defense of extreme emotional disturbance interferes with that mission. It says, essentially, that perfectly sane but really desperate people don't have to live by the same rules as the rest of us. It is worse than a defense: it is an invitation.

The Illogical Structure of the "Extreme Emotional Disturbance" Defense

The illogic of the extreme emotional disturbance defense is manifest in its elements, which are a quixotic mix of the elements of the insanity defense and the elements of self-defense.

The criminal law aims to separate those who are responsible for their actions from those who aren't. If the defendant is actually unable to control himself - if he's insane, for example - the reason for his insanity is legally irrelevant.

Yet the extreme emotional disturbance defense - which is based on the idea that the defendant was unable to control himself emotionally - nevertheless finds relevant the reason for the disturbance that led to the loss of control. It asks: Was the disturbance based on a "reasonable explanation or excuse"?

In sum, the "extreme emotional disturbance" defense borrows one element - loss of control - from the insanity defense, and one element - the reasonableness of the defendant's actions - from the doctrine of self-defense. The problem is that these two elements have nothing to do with one another. Indeed, they actually conflict with each other - for the first presumes the defendant is irrational, and the latter that he is rational.

The self-defense doctrine is for the rational: if you correctly apprehend the danger you're in, you are allowed to protect yourself. The insanity defense, of course, is for the irrational: If you can't control yourself due to a mental disease or defect, we will not hold you responsible for your actions.

By definition, the defense of extreme emotional disturbance is also for the irrational: you have lost control. If you truly cannot control yourself, why should the reason matter? Accordingly, if we have this defense at all, it ought to run parallel to the insanity defense, and have no "reasonableness" requirement.

Another problem with having the reasonableness requirement for the "extreme emotional disturbance" defense is that, in practice, it means that juries and courts will make essentially political decisions about when it's acceptable to lose control, and when it's not. For example, if racial anger is what has disturbed the defendant and caused him to attack, you can be certain that no court in New York would allow the defense to be raised - regardless of whether the defendant indeed "lost control" within the meaning of the state's law.

A final oddity of the defense is that the disturbance can be seen as reasonable, from the defendant's perspective, even if it has nothing to do with the victim. So if the victim happens, through no fault of her own, to catch the defendant on a bad day - job lost, mortgage foreclosed, wife gone - well, that just might be the victim's problem.

Roche's Defense: Thin Evidence, Little Proof of a "Reasonable" Disturbance

In Roche, the evidence that the defendant killed his common-law wife under the influence of an emotional disturbance was shockingly thin. According to the evidence, she was critical and a shouter. The night she was murdered, she had the temerity to make demands that - in the words of the appellate court that found in favor of the defendant - "required the defendant to walk up and down the stairs to their fifth floor walk-up apartment." For this, and for practically nothing else, a court found the defendant is entitled to the "extreme emotional disturbance" defense.

Note what's missing. There was no evidence of a history of violence on Roche's wife's part. There was no evidence of her threats. There was not even any evidence of what, exactly, she had said to him the night of the murder. Out of the fragments of an unhappy relationship, the intermediate appeals court conjured a defense and threw out a four year old murder conviction.

In addition, the notion that, according to this evidence, Roche's disturbance could have been found by a jury to be "reasonable" is rather, well, disturbing. The appellate court has essentially said that proof of a contentious marriage is good enough to reduce the charges from murder to manslaughter. It has done exactly what countless New York cases say it should not have: turned mere anger into a defense.