Kemp v. State
In Kemp v. State, 61 Wis. 2d 125, 138, 211 N.W.2d 793 (1973), Donald Kemp was treated intermittently for mental and emotional problems related to his service in Vietnam.
One night, while in bed with his wife, Kemp dreamt that he was being attacked by the Viet Cong. See id. Kemp slept with a gun under his pillow, and said that he killed some of the Viet Cong in his dream and was awakened by the gun shots to find his wife next to him. See id.
The next day, he took his two children to California for three days, and when they returned to Wisconsin, Kemp checked into a hotel instead of returning home. See Kemp, 61 Wis. 2d at 131-32.
Kemp's wife's body was found in their bed in their apartment, with two bullet wounds caused by Kemp's gun. See Kemp, 61 Wis. 2d at 128-29, 132.
When Kemp was informed of his wife's death he appeared emotionally upset, but said that he had no recollection of the past several days. See Kemp, 61 Wis. 2d at 132.
Six psychiatrists testified at Kemp's trial. See id. at 135. The defense psychiatrist and two court-appointed psychiatrists concluded that Kemp lacked the mental capacity to be held responsible for killing his wife. See id.
Two psychiatrists hired by the state would not express an opinion. See id. A third state psychiatrist testified that Kemp may have lacked capacity, but believed that no-one could state for certain whether he lacked capacity because of the variables of alcohol abuse and a possible marital dispute. See id.
The jury concluded that Kemp did not have a mental disease such that he lacked capacity to be held responsible. See Kemp, 61 Wis. 2d at 127-28.
The supreme court granted a new trial in the interests of justice because a new trial would probably result in a different outcome on the issue of mental responsibility. See Kemp, 61 Wis. 2d at 138.
The court concluded that the evidence as a whole predominated heavily on Kemp's side. See id. The court acknowledged that Kemp bore the burden of demonstrating lack of capacity, and that the jury was to resolve the credibility of the witnesses and whether Kemp had met his burden. See Kemp, 61 Wis. 2d at 137.
However, the court pointed out that Kemp had a history of mental health difficulties, that three experts testified that he lacked capacity while no-one unequivocally testified that he did not lack capacity, and that there was no evidence of a marital disagreement before the shooting. See Kemp, 61 Wis. 2d at 136-38.