Well. . . this is a pretty common tactic, in threats of violence made by telephonic means, or via the internet: argue that the indicted speaker/actor was so intoxicated that he could not have been of a truly "guilty mind" -- or possessed mens rea, in the Latin.
And that mental state -- specifically, intending to do great bodily harm to another human being (all as alleged by the government) -- is an element the government must prove.
So, at trial, the defense is likely to introduce what all was in Mr. Mulleady's liquor cabinet -- and out of it -- on the days and nights in question. [The defense has indicated that it may call what appears to be Mr. Mulleady's significant other. This would be one of the purposes, presumably, for that witness being seated.]
In any event, here is that federal filing in Miami, tonight -- and a bit of it:
. . .[Mr. Mulleady's potential] evidence regarding voluntary intoxication would not be part of the defendant’s “case-in-chief.” The voluntary intoxication instruction goes to the defendant’s state of mind, and ability to form the requisite mens rea, of a specific intent crime. Thus, evidence regarding voluntary intoxication is evidence that negates an essential element of the government’s prima facie case. It is not an affirmative defense presented as part of a defendant’s case-in-chief, but as rebuttal of evidence that may (or may not) be presented by the government that the defendant did in fact form the requisite mens rea “at the time in question.” See Clark v. Arizona, 548 U.S. 735, 769 (2006) (“[E]vidence tending to show that a defendant suffers from mental disease and lacks capacity to form mens rea is relevant to rebut evidence that he did in fact form the required mens rea at the time in question.”); see also United States v. Melhuish, 6 F.4th 380, 394 (2d Cir. 2021) (“A defendant may submit mental health evidence for the purpose of rebutting the prosecution’s proof of the mens rea element of a specific intent crime.”) (citations omitted).
One district court in Tennessee recently summed up a similar situation nicely. As that court explained, “The Defendants here, for example, could wait and decide what defenses to raise once they see what evidence the Government presents at trial. Or perhaps they believe the Government is, in any event, unable to put on a case that will survive a motion for a directed verdict. If that is the case, it would be untenable -- and, most likely, unconstitutional -- to require Defendants to turn over potential evidence (most of which is currently privileged) to the Government or risk forfeiting a defense. The source of that concept, whatever it might be, is fundamentally foreign to the adversarial system of criminal justice contemplated by the United States Constitution.” United States v. Wilkerson, 388 F. Supp. 3d 969, 975 (E.D. Tenn. 2019). . . .
I may have to spend a week in Miami for this one -- could be. . . highly entertaining! Hah!
नमस्ते
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