PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 1/04/99 No. 97-8452 THOMAS K. KAHN CLERK
D.C. Docket No. 5:94-CV-267
DAVID L. NAGEL, Petitioner-Appellant,
versus
DOUGLAS OSBORNE, Acting Superintendent of Central State Hospital; JAMES W. MIMBS, M.D., Chief Medical Officer and Clinical Director of Central State Hospital,
Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Georgia
(January 4, 1999)
Before HATCHETT, Chief Judge, and RONEY and CLARK, Senior Circuit Judges.
PER CURIAM:
David Nagel appeals the district court’s denial of his habeas corpus
petition. Nagel has been in a state institution since he was found not guilty by reason of insanity of the murders of his grandparents in 1981 and subsequently civilly
committed. After approximately ten years of confinement, Nagel filed an application
for release in a state superior court. The superior court held a hearing at which two
doctors, a psychiatrist and a psychologist, testified that Nagel did not meet the criteria
for civil commitment because he was neither mentally ill nor imminently dangerous.
The doctors also testified on cross-examination that they believed that Nagel had
probably not ever been mentally ill, and that his acquittal was in error. No other
evidence regarding Nagel’s mental status was presented. The superior court
subsequently denied Nagel’s petition for release based wholly on the presumption of
continuing insanity.
Nagel appealed to the Georgia Supreme Court, which found that the
superior court had failed to weigh the evidence against the presumption of insanity,
and remanded the case for specific findings of fact and conclusions of law. The
superior court again denied Nagel’s release, finding that although the doctors’
testimony was “weighty,” it did not balance “against the seriousness of the petitioner’s
acts, his history of violence, and the likelihood that his current stabilized condition
will persist and that he will not return to his previous unstable and depraved state of
mind.” The judge further found that there was insufficient evidence to show that
2 Nagel’s stabilized condition would persist outside of a structured environment or “was
persistent enough to conclude that he [wa]s no longer insane.”
The Georgia Supreme Court affirmed the superior court.1 The state
supreme court found that the superior court could have found that the medical experts’
testimony was not credible, and therefore was entitled to no weight, due to their
opinion that Nagel had never really been insane.
Nagel then filed this habeas corpus petition in federal district court,
alleging that the experts' testimony rebutted the presumption of continuing insanity
and that the state court's denial of his application for release amounted to an
irrebuttable presumption. The district court denied the petition, finding that "[t]he
state court had good reason to question the medical testimony presented by
Petitioner." The district court further found that "when weighed against the
presumption of continuing insanity and other factors suggesting that Plaintiff [sic] had
not recovered from his insanity, Petitioner's evidence could reasonably be found to
have come short of establishing that Petitioner is now sane."
We have previously held that Georgia’s presumption of continuing
insanity is lawful, and that Georgia may lawfully require the insanity acquittee to bear
1 Nagel v. State, 264 Ga. 150 (1994).
3 the burden of proof of sanity at the release hearing.2 Here, Nagel did not meet his
burden of proving his sanity. The condition that Nagel had at the time of his trial was
a condition that was factually, legally, and pragmatically a mental illness and insanity
sufficient to afford him a defense to murder. Georgia law presumes that condition
remains the same unless the acquittee proves that it has changed. In testifying that
Nagel is not now mentally ill and was never mentally ill, the experts testified that his
condition remains unchanged. Therefore, Nagel has failed to carry his burden of
showing that his condition has changed. We AFFIRM the district court’s denial of his
habeas corpus petition.
CLARK, Senior Circuit Judge, dissenting:
I respectfully dissent. The majority opinion has changed Georgia law
governing the release of insanity acquittees by requiring acquittees to show that their
condition has changed. Nagel met his burden of proof, but the majority’s application
2 Benham v. Ledbetter, 785 F.2d 1480, 1491-92 (11th Cir. 1986). of the law has left him with an irrebuttable presumption. I agree with the dissent from
the Georgia Supreme Court’s opinion which noted that this release application creates
much anxiety and apprehension, but this court, like the Georgia Supreme Court, is
required to apply the law. Perhaps Nagel should not be released into society, but in
upholding the application of the law to the facts of this case, it is impossible to affirm
the denial of his habeas corpus petition.
I see no relevance of what the experts thought of petitioner's sanity at the
time of his trial to his application for release. The Georgia statute states that an insanity
acquittee can be released only if he does not meet the criteria for civil commitment.1
The criteria for civil commitment states that a person must be mentally ill, in need of
inpatient treatment, and either present a “substantial risk of imminent harm to that
person or others, as manifested by either recent overt acts or recent expressed threats
of violence which present a probability of physical injury to that person or other
persons,” or is so unable to care for their own physical health and safety such that an
imminent life-endangering crisis exists.2 These are the only factors to be considered
in deciding an acquittee's application for release. Any suppositions that experts make
about the accuracy of a jury’s verdict or the applicant's mental condition ten years
1 O.C.G.A. § 17-7-131(f). 2 Id. § 37-3-1(9.1).
5 earlier are simply not relevant. Requiring an acquittee to show that his condition has
changed imposes a new condition that is not found in the statute.
It is noteworthy that the superior court found that the experts' testimony
was uncontradicted and weighty. The state trial court certainly could have questioned
the credibility of the experts based on their idea that Nagel was never insane and
rejected their testimony; trial courts are free to reject the credibility of a witness, and
in such circumstances, this court gives deference to such findings.3 Both the Georgia
Supreme Court and the district court noted that the superior court could have given no
weight to the experts' testimony, but that is not what actually happened. The state trial
court did not discredit the experts' testimony. Therefore, the experts' testimony must
be weighed against the presumption of continuing insanity.
The superior court weighed the experts’ testimony against several factors:
Free access — add to your briefcase to read the full text and ask questions with AI
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 1/04/99 No. 97-8452 THOMAS K. KAHN CLERK
D.C. Docket No. 5:94-CV-267
DAVID L. NAGEL, Petitioner-Appellant,
versus
DOUGLAS OSBORNE, Acting Superintendent of Central State Hospital; JAMES W. MIMBS, M.D., Chief Medical Officer and Clinical Director of Central State Hospital,
Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Georgia
(January 4, 1999)
Before HATCHETT, Chief Judge, and RONEY and CLARK, Senior Circuit Judges.
PER CURIAM:
David Nagel appeals the district court’s denial of his habeas corpus
petition. Nagel has been in a state institution since he was found not guilty by reason of insanity of the murders of his grandparents in 1981 and subsequently civilly
committed. After approximately ten years of confinement, Nagel filed an application
for release in a state superior court. The superior court held a hearing at which two
doctors, a psychiatrist and a psychologist, testified that Nagel did not meet the criteria
for civil commitment because he was neither mentally ill nor imminently dangerous.
The doctors also testified on cross-examination that they believed that Nagel had
probably not ever been mentally ill, and that his acquittal was in error. No other
evidence regarding Nagel’s mental status was presented. The superior court
subsequently denied Nagel’s petition for release based wholly on the presumption of
continuing insanity.
Nagel appealed to the Georgia Supreme Court, which found that the
superior court had failed to weigh the evidence against the presumption of insanity,
and remanded the case for specific findings of fact and conclusions of law. The
superior court again denied Nagel’s release, finding that although the doctors’
testimony was “weighty,” it did not balance “against the seriousness of the petitioner’s
acts, his history of violence, and the likelihood that his current stabilized condition
will persist and that he will not return to his previous unstable and depraved state of
mind.” The judge further found that there was insufficient evidence to show that
2 Nagel’s stabilized condition would persist outside of a structured environment or “was
persistent enough to conclude that he [wa]s no longer insane.”
The Georgia Supreme Court affirmed the superior court.1 The state
supreme court found that the superior court could have found that the medical experts’
testimony was not credible, and therefore was entitled to no weight, due to their
opinion that Nagel had never really been insane.
Nagel then filed this habeas corpus petition in federal district court,
alleging that the experts' testimony rebutted the presumption of continuing insanity
and that the state court's denial of his application for release amounted to an
irrebuttable presumption. The district court denied the petition, finding that "[t]he
state court had good reason to question the medical testimony presented by
Petitioner." The district court further found that "when weighed against the
presumption of continuing insanity and other factors suggesting that Plaintiff [sic] had
not recovered from his insanity, Petitioner's evidence could reasonably be found to
have come short of establishing that Petitioner is now sane."
We have previously held that Georgia’s presumption of continuing
insanity is lawful, and that Georgia may lawfully require the insanity acquittee to bear
1 Nagel v. State, 264 Ga. 150 (1994).
3 the burden of proof of sanity at the release hearing.2 Here, Nagel did not meet his
burden of proving his sanity. The condition that Nagel had at the time of his trial was
a condition that was factually, legally, and pragmatically a mental illness and insanity
sufficient to afford him a defense to murder. Georgia law presumes that condition
remains the same unless the acquittee proves that it has changed. In testifying that
Nagel is not now mentally ill and was never mentally ill, the experts testified that his
condition remains unchanged. Therefore, Nagel has failed to carry his burden of
showing that his condition has changed. We AFFIRM the district court’s denial of his
habeas corpus petition.
CLARK, Senior Circuit Judge, dissenting:
I respectfully dissent. The majority opinion has changed Georgia law
governing the release of insanity acquittees by requiring acquittees to show that their
condition has changed. Nagel met his burden of proof, but the majority’s application
2 Benham v. Ledbetter, 785 F.2d 1480, 1491-92 (11th Cir. 1986). of the law has left him with an irrebuttable presumption. I agree with the dissent from
the Georgia Supreme Court’s opinion which noted that this release application creates
much anxiety and apprehension, but this court, like the Georgia Supreme Court, is
required to apply the law. Perhaps Nagel should not be released into society, but in
upholding the application of the law to the facts of this case, it is impossible to affirm
the denial of his habeas corpus petition.
I see no relevance of what the experts thought of petitioner's sanity at the
time of his trial to his application for release. The Georgia statute states that an insanity
acquittee can be released only if he does not meet the criteria for civil commitment.1
The criteria for civil commitment states that a person must be mentally ill, in need of
inpatient treatment, and either present a “substantial risk of imminent harm to that
person or others, as manifested by either recent overt acts or recent expressed threats
of violence which present a probability of physical injury to that person or other
persons,” or is so unable to care for their own physical health and safety such that an
imminent life-endangering crisis exists.2 These are the only factors to be considered
in deciding an acquittee's application for release. Any suppositions that experts make
about the accuracy of a jury’s verdict or the applicant's mental condition ten years
1 O.C.G.A. § 17-7-131(f). 2 Id. § 37-3-1(9.1).
5 earlier are simply not relevant. Requiring an acquittee to show that his condition has
changed imposes a new condition that is not found in the statute.
It is noteworthy that the superior court found that the experts' testimony
was uncontradicted and weighty. The state trial court certainly could have questioned
the credibility of the experts based on their idea that Nagel was never insane and
rejected their testimony; trial courts are free to reject the credibility of a witness, and
in such circumstances, this court gives deference to such findings.3 Both the Georgia
Supreme Court and the district court noted that the superior court could have given no
weight to the experts' testimony, but that is not what actually happened. The state trial
court did not discredit the experts' testimony. Therefore, the experts' testimony must
be weighed against the presumption of continuing insanity.
The superior court weighed the experts’ testimony against several factors:
petitioner’s pre-offense history of violence, the offense behavior, and the possibility of
decompensation without a structured environment. Georgia law does not provide for
the consideration of these factors; it calls for an examination of the acquittee's present
mental status and possible dangerousness. Two of these factors, moreover, present
serious problems in that they constitute an irrebuttable presumption, as Nagel's pre-
offense history of violence and the offense conduct are immutable. This court has
3 See Benham, 785 F.2d at 1490-91.
6 stated that due process would not be consistent with a presumption that cannot be
rebutted by any amount of uncontradicted evidence.4 If no amount of evidence that an
insanity acquittee offered at a release hearing could rebut the presumption of insanity,
“the processes of proof in the due process hearing would be an empty ritual."5 The
evidence presented at the hearing included the record and the testimony of two doctors
who knew him personally; no other evidence was presented. If we say that the experts’
testimony did not overcome the presumption of insanity, I do not see what evidence
would overcome the presumption.
The Supreme Court case Foucha v. Louisiana6 is directly applicable here.
In Foucha, the Court stated that it is unconstitutional to confine a person who has a
personality disorder but no mental illness, regardless of whether the person presents
a danger to society.7 Like the acquittee in Foucha, Nagel presented evidence that he did
not currently suffer from a mental illness, and any assessment of his dangerousness
alone does not provide a constitutional basis for confinement.
In its attempt to distinguish Foucha, the state tries to claim it presented
evidence of Nagel's continuing mental illness. The state relies on information taken
4 Id. at 1491. 5 Id. 6 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). 7 Id.
7 from medical reports made before petitioner committed his crimes. There is no
evidence in the state trial court’s order that the court relied on these diagnoses or found
that petitioner had a continuing mental illness. One doctor testifying at Nagel's release
hearing diagnosed him with a personality disorder, and both doctors testified that he
exhibited no symptoms of a present mental illness. The experts testified that Nagel was
not mentally ill nor in need of inpatient treatment. On that basis, Nagel’s condition
failed to meet the criteria for civil commitment. For these reasons, the majority is in
error in affirming the district court.