United States v. Bridget M. Denny-Shaffer

Defendant Bridget Denny-Shaffer appeals her conviction and sentence under 18 U.S.C. Sec. 1201(a)(1). The indictment charged that the defendant "wilfully and knowingly did transport in interstate commerce" from New Mexico to Texas and Minnesota a child "Kevin Daniel Chavez, who has been unlawfully seized, kidnapped, carried away and held by the defendant ... for the purpose of keeping the child ... as her own." The defense of Ms. Denny-Shaffer--a victim of multiple personality disorder (MPD)--was insanity within the meaning of 18 U.S.C. Sec. 17(a). The trial judge rejected the insanity defense and instructions requested on it at the conclusion of the trial for insufficiency of proof by defendant under Sec. 17(a). Defendant was then found guilty by the judge after a jury determination was waived.

The central issue on appeal is whether the trial judge erred in rejecting the insanity defense for insufficiency of the evidence thereon, and in refusing to submit jury instructions on the defense. Being convinced that the evidence required the submission of the defense, we reverse.

* THE KIDNAPPING

The record reveals the following facts concerning the taking of the child, which were basically not in dispute at the trial.

In 1990 and 1991, Denny-Shaffer was employed as a labor and delivery nurse at Rehoboth Hospital in Gallup, New Mexico. On May 10, 1991, at about 5:40 a.m., defendant entered the Memorial General Hospital in Las Cruces, New Mexico, wearing a lab jacket and identifying herself as a University of New Mexico (UNM) medical student named Linda. See III R. at 42-44. She went to the nursery where she inspected several babies, including Kevin, claiming to be doing a pediatrics rotation for the UNM medical school. See id. at 48-51. While unobserved by other hospital personnel, Denny-Shaffer picked up the infant, hid him under her arm and left the hospital. She then got into her car and headed for Texas with the baby. See VIII R. at 1007-08, 1014-15. The same evening, she arrived at the Bryan, Texas, home of her former boyfriend, Jesse Palomares. According to him, defendant appeared to be pregnant. See III R. at 145-48.

About noon the next day, defendant telephoned Palomares at work and asked him to return home. When Palomares arrived at his house, he saw defendant in bed with an infant in her arms. Defendant told Palomares: "This is your little one." Id. at 150. There was blood on the sheets and carpet. Palomares also noticed a bag containing a human placenta. See id. at 151, 153. Defendant asked him to bury the placenta in the front yard next to where his son's placenta was buried. Defendant refused any medical attention. Palomares had doubts as to the paternity of the baby. He made it clear to defendant that whether or not he was the baby's father, he did not want to maintain a romantic relationship with her. See id. at 161-62.

After a few days in Bryan, defendant left to join her family, including her mother and teenage daughter, Genesis, in Minnesota. While in Minnesota, defendant presented and treated the stolen baby as her own. See IV R. at 378-79; VI R. at 634.

On May 20, 1991, defendant had a telephone conversation with her supervisor at Rehoboth Hospital, Beatrice Cowdry. Before leaving New Mexico, defendant had told Cowdry that she had a baby with her Texas boyfriend, Palomares. See IV R. at 252-53. During the call, defendant told Cowdry that she was going to return to New Mexico with the baby, but that it had not grown. See id. at 269-70. Cowdry could hear an infant crying in the background. See id. at 270. Cowdry knew about the Las Cruces kidnapping and became suspicious that defendant might be involved; she thus contacted the police. See id. at 271-72.

On May 21, 1991, defendant and her daughter Genesis left Minnesota and headed back to New Mexico by car. On May 23 the New Mexico police and the FBI stopped defendant's car in Albuquerque. See id. at 415. As the car was being pulled over, defendant instructed Genesis to hide the baby under a pillow. See VI R. at 638-39. However, the baby was discovered and defendant was placed under arrest for kidnapping. Defendant told an FBI agent: "I took the baby from the Las Cruces Hospital." See V R. at 485.

Defendant was indicted in the District of New Mexico on the kidnapping charge on June 4, 1991. However, she moved for transfer of the case, which was granted. The case was tried by the New Mexico federal judge in Topeka, Kansas.

Before trial, defendant gave notice pursuant to Rule 12.2(a) of the Federal Rules of Criminal Procedure of her intention to invoke an insanity defense.1 The government moved for a mental examination of defendant pursuant to Rule 12.2(c) and 18 U.S.C. Sec. 4242 to determine her sanity at the time of the kidnapping. The court granted the motion and ordered a mental examination at the Federal Correctional Institution at Lexington, Kentucky. There a forensic evaluation report was prepared for the court in accordance with 18 U.S.C. Sec. 4247(c) by Dr. Mary Alice Conroy, a psychiatric staff member at the institution. Defendant was also examined for the defense by Dr. Teresita McCarty, a private psychiatrist with experience in dissociative disorders such as MPD.

We detail the experts' views later. It is convenient now, however, to note these critical points about the experts' views. The government and defense experts were in agreement that one of the defendant's alter personalities, "Rina," perhaps with another alter personality, "Bridget," controlled defendant's conduct at the time of the kidnapping. The expert witnesses had varying views as to any conscious participation by defendant's host or dominant personality "Gidget" in preparations for or carrying out the kidnapping. See II R. at 20; VIII R. at 1008-20. However, the expert for the defense, Dr. McCarty, said she did not know whether the alters in control at the time of the abduction knew that taking a baby was wrong. See VIII R. at 1136-37. Solely because of the lack of evidence concerning the alters, the judge rejected the insanity defense and refused to submit instructions on it to the jury. See VIII R. at 1147-48, 1153.

After the judge rejected the defense and instructions on it, defense counsel stated that there was no need to attempt argument to the jury since her sole defense had been rejected. The trial judge said that argument on the defense would not be permitted. For this reason trial by jury was waived with the consent of the prosecution and defense counsel, and with the approval of the judge. The judge then made a finding that the defendant was guilty, see 18 U.S.C. Sec. 4242(b)(1), and sentenced her to 63 months' imprisonment to be followed by five years of supervised release, see IX R. at 1175. This timely appeal followed.

We turn first to the important evidence concerning the defendant's background, her mental condition, and the degree of its severity.

THE BACKGROUND OF DENNY-SHAFFER'S MENTAL CONDITION

The testimony of several percipient and expert witnesses at trial reveals the following facts concerning defendant's background and mental illness without significant dispute.

* Defendant's Background

Defendant was born in 1954 in Richfield, Minnesota, as the third of 10 children. Her parents divorced when she was 12. During childhood defendant experienced an array of severe physical and sexual abuse. Her mother, described by defendant's sister as "very moody," kicked and hit defendant and her siblings with her hands, belts, and hangers on all parts of their bodies. See V R. at 500-01. The mother once beat defendant black and blue all over her legs and back, sent her to school, and warned her not to tell anyone what had happened or she would be beaten again. See VI R. at 630. Several times, defendant received bloody noses from her mother's blows; on one occasion, she suffered a broken arm as a result of abuse. See VII R. at 871-72, 888. At least once, her mother burned defendant's lower legs in the bathtub. See VIII R. at 1045-46.

In addition to physically abusing her, defendant's mother tormented defendant concerning her eating habits and told her, at age four, that she could not have food at the dinner table because she was too fat. Conversely, one time after defendant had been throwing up, her mother told her to eat more food. Defendant began binge eating at age seven, and in the eighth grade became anorexic. See VII R. at 884-85.

From about age four, defendant was subjected to sexual abuse by her older brother. See V R. at 513-14; VII R. at 866. According to defendant's sister Katy, who had herself been sexually abused by the brother, defendant was sexually abused by her brother as well. See id. The abuse continued until defendant was in junior high school. Beginning about that time, defendant also experienced several incidents of sexual abuse by one of her uncles. See VII R. at 566.

At age 14, while staying with her father in California, defendant was raped by one of her father's friends. Defendant told Dr. McCarty that as a result she became pregnant and had an abortion. See VII R. at 872. At age 16 defendant was also raped by her employer in California. See id.; VI R. at 609. At age 16 defendant met her first husband, Daniel Coffman. They were married and had two children together, Genesis and Shoshona. Mr. Coffman was abusive toward defendant and after five years of marriage, she divorced him. See V R. at 519.

Defendant and her daughters moved to Arkansas where she attended nursing school. In Arkansas, she met Peter Shaffer and they were married. While living in Arkansas, defendant suffered from long periods of severe depression and emotional instability. See V R. at 528-29; VI R. at 556, 566-67, 612, 619. From 1985 to 1989, while pursuing an advanced nursing degree, she received mental health treatment in the counseling program at the University of Arkansas. As part of the program defendant had a total of 98 individual therapy sessions. The counselors diagnosed her as suffering from a major depressive disorder and prescribed an antidepressant for her to take. See VII R. at 876-79.

In 1989 defendant moved to Bryan, Texas, where her husband Shaffer had grown up, but he never joined her there. Defendant's emotional condition worsened during her stay in Bryan and her daughters noticed a recurrence of bulimic behavior. See VI R. at 565-67, 626-27. While in Bryan, defendant struck up a romantic relationship with Jesse Palomares which lasted about a year. She became pregnant by Palomares but the pregnancy ended in a miscarriage. See VI R. at 609-10, 627. The miscarriage left defendant more depressed than ever. She lay in bed for several days in a bathrobe soaked in blood and did not change her clothes or sheets. See id. at 610-11.

In early 1990 Palomares broke off his relationship with defendant. Soon thereafter, defendant entered a treatment program at the Cedars Hospital, complaining of stress, bulimia, and anorexia. See VII R. at 882-83, 886-87. She told her counselors about her childhood abuse and her sensation that she was observing herself, including her thoughts and feelings, from outside. Defendant was diagnosed as suffering from eating disorders and borderline personality disorder. See id. at 888-94, 899, 917.

Defendant transferred to Parkside Hospital where she was diagnosed with anorexia, bulimia, alcohol and chemical dependence, depression disorder, mood disorder, and moderately severe personality disruption. See id. at 894, 917. She was discharged after a 38-day stay. See id. at 895-96. While at Parkside, defendant lost her job. Her condition deteriorated and her mood swings intensified. See VI R. at 576, 590-91. On one occasion, she even failed to recognize one of her own daughters while talking to her at the house. The following day, defendant did not remember what had happened. See id. at 578-79.

In late 1990 defendant wrote in her diary that her life was "in Mai's hands" and that she was waiting to see "what Mai wants for me." See VIII R. at 948-52. She also made entries indicating that she thought she was pregnant and due in May 1991. At her father's funeral in Minnesota in December 1990, defendant told her family that she was pregnant. In January 1991 she experienced bleeding and believed she had a miscarriage. See id. at 961, 999.

The same month, defendant accepted a job as a nurse in the Women's Health Unit at Rehoboth Christian Medical Center in Gallup, New Mexico. The job was scheduled to begin February 4 and end May 6, 1991. Defendant's diary indicates that she was concerned about leaving Palomares and was confused about their relationship: "I can't accept it's over, so I can't go on. I only want to let go if it's really over for him." See id. at 961. In block letters she wrote: "CONFUSED ME." See id. at 959. Defendant moved to Gallup to start her new job. She continued to pretend to her family that she was pregnant, and she wrote and talked to Palomares about her pregnancy, trying to convince him the baby was his and probably was a boy. See III R. at 126, 136; IV R. at 300.

While in Gallup defendant acquired a new social security card under the name Marina Bridget Kelly-Denny, plus two altered birth certificates, one indicating her mother was American Indian and the other indicating her father was Sioux. She also obtained a New Mexico driver's license under the name Marina Kelly. In March 1991 defendant had her picture taken, appearing pregnant. She told the photographer that she wanted to send the photo to the baby's father. See IV R. at 339, 341, 348.2

On May 8 defendant checked into a motel in Albuquerque. Two days later, she abducted Kevin Chavez from the Las Cruces Memorial Medical Center nursery.

The Trial Evidence on Defendant's Mental Condition

As noted, Dr. Conroy performed a court-ordered examination of defendant at the FCI in Lexington, Kentucky, and prepared a forensic evaluation which was admitted into evidence at trial. See II R. at 1-21; IX R. at 1169.3 Dr. Conroy's report as the government's expert details much of the personal and medical history recounted above. Dr. Conroy diagnosed defendant as suffering from Multiple Personality Disorder (MPD), II R. at 19, as did the defense expert. Dr. Conroy stated:

All factors taken together, the diagnostic picture presented by Bridget Denny-Shaffer is very consistent with a dissociative disorder known as Multiple Personality Disorder.... It involves the existence of two or more well integrated personality states within a single individual....

In the case of Ms. Denny, the psychological disorder seems to have had its onset in early childhood. As is often the case, it may have developed as a defense against the physical, psychological, and/or sexual abuse which she endured.

II R. at 18. Moreover, Dr. Conroy discounted the possibility of malingering by the defendant. Id. at 17-18; see also the discussion of Dr. Foote's testimony in note 8, infra.

Dr. Conroy did not opine that defendant's host or dominant personality was in control at the time of the abduction of the infant.4 Her report stated:

It is essential to emphasize that someone suffering from a multiple personality disorder is still a single individual. Nonetheless, it is important to examine which alter personality was in fact in control of the behavior during the instant offense. The defendant strongly emphasized the role of the irresponsible adolescent personality ["Rina"]. When accessed, this persona agrees she was searching for a baby and she took it from the hospital. However, she also refers to "Mother Superior" ("Bridget") as being present with her at the time. The most likely scenario from all data gathered seems to be the adolescent personality and the "Bridget" ("Mother Superior") personality are co-conscious and were co-conspirators in this offense.

II R. at 20 (emphasis added). Thus Dr. Conroy concluded that the alters Rina and Bridget were "present" at the time of the taking of the infant and that defendant's host or dominant personality was not present at the time of the abduction. There was some evidence in Dr. Conroy's report suggesting that the host personality may have been present at some points during the later trip. See infra Part VI(D).

The conclusion by the government expert that defendant's host or dominant personality was not present at the abduction of the baby was similar to that of defendant's expert, Dr. McCarty, who testified extensively at trial.5 She concluded:

A. My conclusion was she was indeed suffering from a mental illness and the primary illness was multiple personality disorder.

....

Q. Was she still suffering from it at the time you saw her?

A. Yes, she was.

Q. And was she suffering from it before and on May 10th of 1991?

A. Yes, she was.

....

Q. Now, in Ms. Denny's case, who have you identified as the primary personality?

A. It seems that Gidget is the primary personality.

....

Q. What are the names that you have identified of the other personalities?

A. There's Gidget, Bridget, Paul or Pal.... Then there was that part that I identified as a 14-year-old, because that's really all the information I got from her. And then Rina, ... who's also sometimes called M-A-R-I. Then there was a part called Mother Superior, and a part called Bird, and then there was a part that wasn't identified by a name, but by a description. It was female and little....

VII R. at 860; VIII R. at 972-73 (emphasis added). Dr. McCarty described the severity of defendant's mental illness as follows: "The illness was serious and severe." Id. at 1030. Dr. McCarty testified that in an MPD case, the primary personality is also sometimes called the host personality, that it is recognized by society as the person, and that it is the personality which interacts with the outside world and is identified "officially." Id. at 969-70. As to the personality in control at the time of the abduction, Dr. McCarty said:

Q. ... From your discussing this with the primary personality, did the primary personality plan the abduction?

A. No.

Q. Did she know that there was going to be an abduction?

A. No.

....

Q. Did she execute it?A. No.

....

Q. Was Gidget capable of stopping this?

A. No.

VIII R. at 1030-31 (emphasis added). Dr. McCarty testified that the defendant's primary personality, Gidget, does not control the other personalities. Id. at 987.

Dr. Conroy and Dr. McCarty thus agreed that, at the time of the kidnapping, defendant was suffering from MPD and that her dominant or host personality, "Gidget," did not consciously participate in the abduction.6 Neither expert, however, could establish that the alter personality in control of defendant at the time of the offense was legally insane, i.e., "unable to appreciate the nature and quality or the wrongfulness of [defendant's] acts." 18 U.S.C. Sec. 17(a). The government expert, Dr. Conroy, believed that "[e]ach of the personalities taken alone knew, or was very capable of knowing, what she was doing and of making moral judgments." II R. at 21.

From these underlying conclusions, Dr. Conroy's report stated that there were two possible views on legal responsibility: (1) that in light of the presence of a host personality and several alter personalities, if the statute means that all alters, or at least the host personality, must be fully aware of the nature, quality, and wrongfulness of an act, then Denny-Shaffer was not responsible at the time of the abduction; and (2) on the other hand, if an MPD victim is viewed as a single individual with varying personality components, and not divided as separate people, the issue changes; in such a case the question would be whether the personality in control at the time of the offense was unable to understand the nature, quality, and wrongfulness of her acts. If this is the proper interpretation of the statute, then the defendant did suffer from a significant mental illness, but it was not such as to render her unable to understand the nature, quality, and wrongfulness of her acts.7

Dr. McCarty, on the other hand, was unable to render an opinion one way or another about the controlling alter or alters' being able to appreciate the nature and quality or wrongfulness of their conduct. See VIII R. at 1136-37.

The American Psychiatric Association defines MPD via two criteria:A. The existence within the individual of two or more distinct personalities or personality states (each with its own relatively enduring pattern of perceiving, relating to and thinking about the environment and one's self).

B. Each of these personality states at some time, and recurrently, takes full control of the individual's behavior.

AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS Sec. 300.14 (3d ed. rev. 1987) [hereinafter DSM-III-R]. Dr. McCarty noted that there are cases of MPD in which the alters are entirely separated with respect to memory, perceptions, emotions, and identity, so that no one personality knows about any of the others. See VIII R. at 968.8

The trial judge held that the evidence was insufficient to raise the insanity defense, stating:

[W]e must look at the personality in control at the time of the act, and determine if that personality was able to understand the nature, quality, or wrongfulness of the act....

....

This record is void of any information or any testimony which would indicate whether the acting personality could or could not appreciate the nature and quality of the act or whether it was wrongful, and ... the defendant has the burden of proving the defense of insanity by clear and convincing evidence.

....

I feel that there is no testimony to support the submission of the [insanity defense] instruction under the view that I have taken concerning the application of the defense of insanity in this multiple personality context.

VIII R. at 1147-48, 1153.

The defendant argues that the stringent requirement imposed by the judge in these circumstances was error. She maintains that when the evidence, as here, sufficiently demonstrates that the defendant is suffering from a multiple personality disorder and that there is an identified host or dominant personality, and that this personality was not conscious of the planning or carrying out of the wrongful conduct, then a sufficient showing has been made to require submission of the defense to the trier of fact under 18 U.S.C. Sec. 17. See Appellant's Brief-in-Chief at 44-50. The government, on the other hand, supports the restrictive view of the evidence adopted by the trial judge, arguing that only evidence as to the mental state of the alter personality or personalities in control at the time of a wrongful act is relevant. Brief of Appellee at 18-20.

Before we turn to the insanity issue we will deal with the government's claim, made for the first time in this Court, that Denny-Shaffer waived her right to appeal the district court's denial of an instruction on her insanity defense. Noting that after the judge rejected her insanity defense, she elected to waive trial by jury and have her guilt or innocence determined by the judge, the government claims that she thus waived all claims of error "peculiar to a jury trial." See Brief of Appellee at 25.

The government argues that the issue is: "Whether a defendant, convicted in a bench trial, can raise an issue concerning the failure to give an instruction." Brief of Appellee at 1. This formulation is flawed, as it fails to recognize the underlying substance and extent of the trial judge's rulings. While the judge did refuse any instructions to the jury on the insanity defense, he did so because he first ruled that due to insufficiency of evidence, the possibility of a verdict or a court finding of "not guilty only by reason of insanity," 18 U.S.C. Sec. 4242(b), was "out." IX R. at 1172-73. The judge himself as trier of the facts refused to consider the defense,9 in addition to denying any instruction to the jury on insanity. These actions by the judge are appealable in our judgment, and the issue whether the insanity defense was sufficiently raised by the evidence was not waived.

We reject the government's waiver argument for several reasons. First, this waiver contention was not made in the district court at any time. At the close of the hearing, when the district judge announced his views on the insanity defense, he referred to the appeal to this court which was reasonably certain to follow. See IX R. at 1172-73. Defendant elected to waive trial by jury only after the district court had made its legal ruling that the evidence on the insanity defense was insufficient to present a submissible defense. Thus the circumstances do not support an inference of an intent to waive this key issue.

Defense counsel confirmed that she had rested her case after announcement of the judge's ruling. Then the judge and counsel discussed the issues for the fact finder as guilty, not guilty, or not guilty by reason of insanity. See id. at 1150. Rejecting that formulation of the issues, the court flatly stated that the issue of not guilty by reason of insanity was "out," saying that the defense was no longer an option for the jury or the court if it was to be the finder of fact. See id.; see also IX R. at 1172 ("it won't be a defense in this case").

After this pronouncement by the judge, defense counsel stated that it did not make sense to present any argument on insanity--it would have been pointless because she would not have been allowed to argue it to the jury. See VIII R. at 1150. The court responded: "No, you can't. I wouldn't permit you to." Id. at 1151 (emphasis added). Only then did defense counsel say that the "thing to do is to waive the jury." Id. However, defense counsel clearly stated that she opposed the underlying ruling, and her objection was noted by the court, which said "[s]urely." Id.

The district judge's comments show his recognition of defendant's reservation of her right to appeal his ruling:

I will find that defendant has waived her right to a jury trial solely because of the court's ruling, and that in order to be entitled to instruction on the affirmative defense of insanity she needs to present evidence that the acting alter was unable to appreciate the nature and quality or wrongfulness of her actions. I will find that the waiver of defendant's right to a jury trial operates for this proceeding only; that is, this trial, and that if there is a retrial, her right to a jury trial is not waived for that retrial or further trial. I will find further that the decision which I will make in connection with guilt or innocence is not made in reliance on any evidence which related to the defendant's claimed insanity at the time of the offense.

IX R. at 1160-61 (emphasis added). The government stated no objection or claim of waiver by defendant's waiver of jury trial as the posture of the case was shaped for defendant's appeal.

The trial judge explained to the jury the essence of his ruling--that the insanity defense was one which could be taken advantage of only by the personality in control at the time the baby was taken. See IX R. at 1172. The judge said he had advised counsel that the insanity defense would not be submitted: "[I]t won't be a defense in this case, and [so] counsel ha[ve] decided to go forward with the case without the jury." Id. Arguments were waived and the court announced that it found Denny-Shaffer guilty. See id. at 1175.

Thus the district judge did not merely reject one or more proposed jury instructions on the insanity defense. Rather, he rejected the insanity defense as not being available to defendant at all. See United States v. Whitehead, 896 F.2d 432, 435 (9th Cir.) (affirming a district court's refusal to instruct the jury on the insanity defense because the evidence adduced could not have established "with convincing clarity" that the defense was applicable), cert. denied, 498 U.S. 938, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990). Defense counsel specifically objected to the rejection of the insanity defense, stating that there was sufficient evidence to go to the jury on the insanity issues proposed by the defendant's requested instructions. IX R. at 1168.10

It has been held that jury trial waivers do not operate to waive appellate review of certain underlying claims of error. For example, in Government of Canal Zone v. Davis, 592 F.2d 887 (5th Cir.1979), the defendants had feared that the jury composition was suspect. They thus moved to inspect the records kept by the court clerk that related to the selection and composition of the jury. When the district court denied that motion, the defendants elected to waive jury trial and be tried by the court on stipulated facts. The government argued that the waiver of jury trial operated as an abandonment of their right to challenge the error on appeal. The Fifth Circuit disagreed, finding that rather than waiving jury trial per se, the defendants had instead waived "a trial by a jury of suspect composition." See 592 F.2d at 889. In the instant case, one might say that rather than waiving her right to a jury trial per se, Denny-Shaffer merely waived trial by a jury which was to be prevented by the court from considering her only defense.11

In sum, as the trial judge below clearly recognized, defendant's procedure in no way amounted to a waiver of her right to appeal and argue that a submissible insanity defense was presented in accord with 18 U.S.C. Sec. 17(a). The issue was not waived and will be considered on its merits.

* The Background of the Defense

Our criminal justice system punishes those it convicts for many reasons, chief among them being retribution against the criminal, deterrence of future crimes, and rehabilitation of the criminal. See Kelly v. Robinson, 479 U.S. 36, 49, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986). However, we hold accountable only those who are morally culpable for their conduct; historically we have not held "the very crazy" morally accountable for at least some of their actions. See Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability, 39 UCLA L.REV. 1511, 1521 (1992); Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, 58 S.CAL.L.REV. 777, 781 (1985) [hereinafter Morse]. In principle, the insanity defense can be traced back through at least 1,000 years of British law, and perhaps back as far as Roman, Christian, and Judaic law. See Ira Mickenberg, A Pleasant Surprise: The Guilty But Mentally Ill Verdict Has Both Succeeded in Its Own Right and Successfully Preserved the Traditional Role of the Insanity Defense, 55 U.CIN.L.REV. 943, 953-54 (1987); Morse, 58 S.CAL.L.REV. at 781 & n. 5.

The point to be gleaned from this discussion is simple: Whatever the specific formulation of the defense has been throughout history, it has always been the case that the law has been loath to assign criminal responsibility to an actor who was unable, at the time he or she committed the crime, to know either what was being done or that it was wrong. This basic tenet has apparently been entirely unaffected by advances in medicine or psychology. See Michael L. Perlin, Unpacking the Myths: The Symbolism Mythology of Insanity Defense Jurisprudence, 40 CASE W.RES.L.REV. 599, 658-66 (1990) [hereinafter Perlin]. As the first Justice Harlan noted nearly one hundred years ago, while one of the goals of the criminal justice system is to punish criminals and protect public safety, some "crimes of the most atrocious character" must not be the subject of criminal sanctions if the imposition of such sanctions would require the courts "to depart from principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice." Davis v. United States, 160 U.S. 469, 493, 16 S.Ct. 353, 360, 40 L.Ed. 499 (1895).

The district court rejected the insanity defense as not submissible to the jury because "[t]his record is void of any information or any testimony which would indicate whether the acting [alter] personality could or could not appreciate the nature and quality of the act or whether it was wrongful." VIII R. at 1147-48, 1150. The judge thus limited consideration of the evidence to that dealing with the alter or alters acting at the time of the offense, requiring proof as to that alter or alters to satisfy the statute, and denying consideration of the evidence dealing with the dominant or host personality of the defendant to satisfy the insanity defense statute as the judge construed it.

The defendant argues that the judge erred in his ruling construing Sec. 17. She maintains that the proof was sufficient to raise a submissible insanity defense with a reasonable and proper interpretation of the Act. We agree. We are convinced that the proof was sufficient, given reasonable and proper interpretation of the statute, for the trier of fact to find that the defendant had shown by clear and convincing evidence that, as a result of a severe mental disease or defect, she was not guilty by reason of insanity since her dominant or host personality was neither aware of nor in control of the commission of the offense and thus was unable to appreciate the nature and quality or wrongfulness of the conduct which the alter or alters carried out. As noted, Dr. McCarty testified that in Denny-Shaffer's case, "[t]he illness was serious and severe." VIII R. at 1030.12

Nothing in the language of the statute itself provides a clear guide to its application here.13 Nor is there anything in the legislative history we have indicating the answer to our question. Indeed, there is no mention of MPD or dissociative disorders in that history.14 This is not surprising, considering the fact that Congress appeared to be primarily concerned with shifting and increasing the burden of proof in insanity defense cases, as well as eliminating the volitional prong of the defense in order to avoid its unwarranted application in some cases, unlike this one, in which the available expert witnesses disagreed as to the defendant's mental condition. See S.Rep. No. 255, 98th Cong., 2d Sess. 222-23 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3404-05.

We are convinced that the trial court's interpretation of Sec. 17 is unreasonable in restricting the focus of the court and jury narrowly to the alter or alters cognizant of the offense, and ignoring proof that the dominant or host personality was not aware of the wrongful conduct. We are instructed that such "[l]iteral interpretation of statutes at the expense of the reason of the law and producing absurd consequences or f