legal rationale for manslaughter charge in this case?

[old lady new shooter]

I just read a story (http://www.breitbart.com/video/2016...after-beating-wifes-would-be-rapist-to-death/) about a woman who was the victim of a home invasion, BG was trying to rape her, she and her sister who was also present called the police and various family members, her husband came home and beat up the would-be rapist, who subsequently died of his injuries. The husband is being charged with manslaughter. I would like to understand the rationale for this, is rape not considered an appropriate reason to use force against the attacker in NY? Or what could be the rationale?

 

[NormH3]

I prefer to wait until all the facts are out. Regardless of where the story comes from, there are usually things that aren't reported correctly or left out. Case in point, I had read that the BG had already left the apartment and the husband followed. Don't know if that is true.

 

[Kleanbore]

We do not know the facts, but since the question is "what could be the rationale", it could be that the evidence indicates that the husband used more force than had been reasonably necessary to prevent the rape.

 

[Double Naught Spy]

I would like to understand the rationale for this, is rape not considered an appropriate reason to use force against the attacker in NY? Or what could be the rationale?

Sure rape is a reason to use force, but rape or attempted rape wasn't occurring at the time of the ATTACK by the husband. In fact, the attempted rape was over and the suspect was casually walking down the apartment building hallway, NOT in the residence where the attempted rape occurred. So the attack by the husband, with a TIRE IRON (lethal weapon), after the fact, was unjustified. He is lucky he isn't being charged with murder.

Check out the video.

http://bronx.news12.com/news/nypd-m...-manslaughter-charge-1.11858853?firstfree=yes

Generally speaking, the DAs don't charge people willy nilly for self defense. When you hear of such cases being reported, you can bet significant portions of the story are NOT being reported.

Even the talking head here said that the husband allegedly beat the guy to death who was trying to rape his was. It is presented in the present tense, the beating and the raping, but as seen in the video, the would-be rapist isn't trying to hurt anyone when the husband clubs him (from behind as he went into the elevator?) with the tire iron.

 

[old lady new shooter]

Thanks for the video link, also kleanbore's comment probably nailed it. And yes, breitbart left out important information, no way to know whether that was deliberate or they just posted what they had at the time. IAC the manslaughter charge seems less unreasonable now.

There was a case in Florida a couple years ago where a guy came home to find the male babysitter sexually abusing his son, he beat the babysitter unconscious and got a knife from the kitchen to finish him off, amazingly the little boy got between him and the molester and prevented him from killing him. The babysitter got 25 years, the father was not charged. I guess catching him in the act is the differentiating factor to today's case, but technically the father didn't have to beat the molester unconscious to stop the act either.

 

[Double Naught Spy]

There was a case in Florida a couple years ago where a guy came home to find the male babysitter sexually abusing his son, he beat the babysitter unconscious and got a knife from the kitchen to finish him off, amazingly the little boy got between him and the molester and prevented him from killing him. The babysitter got 25 years, the father was not charged. I guess catching him in the act is the differentiating factor to today's case, but technically the father didn't have to beat the molester unconscious to stop the act either.

Of course catching a person in the actual act is completely different than killing somebody after the fact.

As far as the necessity of beating a person into unconsciousness, how do you know it was not necessary? The molestation may have stopped, but had the threat actually stopped? Was the molester fighting the father? If so, then yeah, it may have been very necessary to continue to fight the threat until the threat stopped being a threat, which happened to be when the threat lost consciousness.

 

[Frank Ettin]

Stick to the legal issues please.

 

[Derry 1946]

New York Penal Code 125.20 provides in pertinent part:

A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;  or
2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25.  The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision;  ...

So there are two theories for prosecuting such a case as manslaughter. One, the defendant only meant to hurt the victim, but the victim died. Two, the defendant meant to kill the victim, and did so, but acted under extreme emotional disturbance. The latter theory mitigates the killing from murder to manslaughter. Under the first theory, the defendant did not have the intent for murder.

Why is the homicide not justifiable, in the eyes of the prosecutor? Presumably the DA does not believe that a defense of justification is viable in view of a lack of proof that force was used in defense of self or other.

If the would-be rapist had broken off the attack and was simply walking away, it would be very difficult for the defendant to prove that he reasonably feared further aggression to a degree that warranted a beating that proved fatal.

Early press coverage is often wrong, and always incomplete. It's like looking at four pieces of a thousand-piece puzzle and saying, I just don't see how this is going to be a picture of a zebra. The volume of evidence adduced at a trial in a homicide will be vastly greater and more nuanced than any news snippets. This is especially so with more sensationalistic sources.

 

[Rex B]

This is where a grand jury should no-bill the case.
If not, jury nullification may be the ultimate solution.

 

[Kleanbore]

This is where a grand jury should no-bill the case.

Why?

It would appear that the actor employed deadly force when it was not necessary--a serious crime.

The only way to find out is to put the case before a trial jury.

 

[Spats McGee]

This is where a grand jury should no-bill the case.
If not, jury nullification may be the ultimate solution.

On what legal basis? From what I can tell, the attack took place near the elevators in the building. Any imminent threat to life or limb was over, so this wasn't defense of self or others.

 

[Carl N. Brown]

According to the New York Daily News, the husband, 61, was arrested and initially charged with manslaughter of the alleged rapist, 43, ex-con. Charges were reduced to assault. Prosecutors say final charges will depend on the outcome of their investigation. The man was released pending outcome of the investigation. The husband had responded to his wife's call. left his job, rushed to the apartment building, took the elevator, as he stepped out the elevator the man was coming down the hall toward the elevator, the wife shouted that's the man. According to the wife, the alleged rapist struck the first blow at her husband, who had armed himself with a tiretool.

 

[Kleanbore]

Presumably the DA does not believe that a defense of justification is viable in view of a lack of proof that force was used in defense of self or other.

More likely, the charging authority does believe that there is sufficient evidence to prove beyond a reasonable doubt that the man's actions were not lawful.

At the arraignment hearing, the charges were reduced to two counts of assault, harassment and criminal possession of a weapon.

http://nypost.com/2016/05/31/husband-charged-for-beating-would-be-rapist-to-death/​

 

[Derry 1946]

More likely, the charging authority does believe that there is sufficient evidence to prove beyond a reasonable doubt that the man's actions were not lawful.



At the arraignment hearing, the charges were reduced to two counts of assault, harassment and criminal possession of a weapon.

http://nypost.com/2016/05/31/husband-charged-for-beating-would-be-rapist-to-death/​

Right. I agree. Bringing charges of any kind means the DA considers at least some of the husband's actions unlawful, i.e., not justified.

I'm addressing the original question as to why the alleged killing of the alleged would-be rapist is prosecuted at all, i.e., why the DA does not simply consider it justifiable. In broad terms, justification for a killing requires proof of fear of some impending harm. We are likely seeing the evolution of some mitigating factors (see my earlier post).

But if the alleged would-be rapist was just sauntering casually away, it's hard to see a case for justification for killing him. If, however, the alleged killer had just been apprised that the alleged would-be rapist has just committed a violent aggression and then takes the first swing, a more colorable picture of justification begins to emerge.

True justification, however, suggests no prosecution at all, not reducing charges to assault. Of course, there can be all kinds of other charges, like the weapons possession charge, etc. Does the husband have a criminal record? Does the wife really not know the attacker? Who knows?

The recently-elected Bronx DA will want to get this right. She has a lot riding on her response to this high-profile case. Homicides can't be taken lightly. Neither can attempted rape. Various community interests are involved. It's a political minefield. She's trying to gather facts as quickly and as reliably as possible.

It's early days. We would need solid facts, and plenty of them, to draw meaningful conclusions. For now, we can only offer generalities. But these can at least be firmly grounded in law and criminal procedure.

 

[Double Naught Spy]

According to the wife, the alleged rapist struck the first blow at her husband, who had armed himself with a tiretool.

Wow, based on the video, she lied. Go to about 1:53 on the video. You can clear see the suspect disappear into the elevator as the husband gets out and starts to head the other way and then the husband swings around with the tire iron to beat the suspect. http://bronx.news12.com/news/nypd-m...-manslaughter-charge-1.11858853?firstfree=yes

 

[stchman]

It's the state of New York, enough said.

People in Communist states are not allowed to defend themselves or their loved ones.

My thoughts are, if you don't want to get beaten/shot, don't break into people's homes. Problem solved. The guy that tried to rape his wife got what he deserved, and since he died, taxpayer money won't have to be wasted on the scumbag's trial. Wait a sec, the law in NY has to have a taxpayer money wasting trial, so they're going to have one one way or another.

 

[Kleanbore]

It's the state of New York, enough said.

People in Communist states are not allowed to defend themselves or their loved ones.

The use of force laws in New York are not much different from those in other states, such as Missouri. There are gun ownership restrictions, but this guy from Guinea used a tire iron.

No one has said that he would not have been justified in defense or in prevention. The problem seems to be that that's not what he did.

Try the same thing in St. Charles, MO and see what happens. You may not lawfully use force punish someone who has committed a crime or who has attempted to do so, anywhere the country.

There are some rare instances in which one may use force to stop a fleeing fellow, in some jurisdictions. New York happens to be more permissive on that score than is Missouri.

 

[old lady new shooter]

Wow, based on the video, she lied. Go to about 1:53 on the video. You can clear see the suspect disappear into the elevator as the husband gets out and starts to head the other way and then the husband swings around with the tire iron to beat the suspect. http://bronx.news12.com/news/nypd-m...-manslaughter-charge-1.11858853?firstfree=yes

I don't think that contradicts the husband's statement, he said his wife was in the hallway naked or partially naked and screamed that the guy going into the elevator was the one who assaulted her.

Someone earlier posted the statute that sets forth what factors can reduce homicide to manslaughter, the second one was "extreme emotional disturbance", that seems to me to apply here.

 

[Frank Ettin]

...based on the video, she lied.....

Conflicts in the evidence -- there's nothing new or unusual about that. That's why we have investigations, grand juries (sometimes), preliminary hearings (sometimes), and trials.

....My thoughts are,...

Who cares what your thoughts are? Here we try to help improve our understanding of how things actually are and work in real life in the real world. One's thoughts about how things should be are irrelevant.

What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.

 

[1911 guy]

Quote:
One's thoughts about how things should be are irrelevant.

Yep. Because we live in Utopia and nothing needs to change. We all love it exactly the way it is.

Now on to the matter at hand. Somebody died and the prosecutor needs a conviction. It's a little tough to convict a dead guy of his crimes, so the guy who killed him is going to get charged. Never mind the fact that Mr. Diallo had taken an action that is and has been perfectly acceptable and even expected since the beginning of human history. His wife was assaulted and he got to the perp before the police did. End of story. Yes, I know this isn't politically correct. Yes, i know this isn't "good form". Yes, I know that under New York law, it isn't apparently legal, either. But in the minds of everyone not vested in the letter of the law versus the spirit of the law, it's right. While often misused, this is an example of "right versus legal". Think I'm the lone nut who supports wanton violence? Think again. I'll go out of my way to avoid it if i am given the opportunity. But start asking women what they think about charging a husband who killed his wife's assailant. Then start asking men like me whose wives have been the victim of sexual assault. Anyone who had any personal conviction and principle would be embarrassed to defend the actions of this prosecutor.

Back when Shakespeare wrote the line "First, we kill all the lawyers", it was actually a compliment to the profession. Lawyers were seen as an obstacle to Jack Cade, a fellow who had designs on taking the throne of England by deceit and knew that lawyers would find the flaws in his claims. Shakespeare was for the masses as well as upper class and this view of lawyers was widely held. In 400 years since the bard's death, an esteemed profession has fallen to the point that the line from Shakespeare has taken on a new life with exactly the opposite meaning. The story of Mr. Diallo is but one example of why this is so.

 

[Frank Ettin]

Quote:
One's thoughts about how things should be are irrelevant.

Yep. Because we live in Utopia and nothing needs to change. We all love it exactly the way it is....

Well you, and a lot of folks, don't get it. But your prattling on about your fantasies isn't going to change anything.

Also, how you think things should be is not what the Legal Forum is for or about.

First, see the description of the Legal Forum on the THR Index Page:

In the Legal Forum we try to understand what the law is (including court decisions and proposed laws), how it works, and how it applies to RKBA issues. We focus on the way things are – not the way we think they should be.....

Second, see the THR Legal Forum Guidelines:

Note: The Legal Forum is for the discussion of the law as it is and how the law actually applies in RKBA matters, not the way we think things should be or the way we wish they were. Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles. Comments based on wishful thinking may be openly refuted or simply deleted by the staff....

....Now on to the matter at hand. Somebody died and the prosecutor needs a conviction. It's a little tough to convict a dead guy of his crimes, so the guy who killed him is going to get charged....

Hogwash! You might believe that, but being your warped belief doesn't make it true.

....Never mind the fact that Mr. Diallo had taken an action that is and has been perfectly acceptable and even expected since the beginning of human history...

Garbage! It certainly hasn't been thus in the history of the Common Law or our Republic.

...Yes, I know this isn't politically correct. Yes, i know this isn't "good form"....

Nor is it legal.

....Yes, I know that under New York law, it isn't apparently legal, either....

Nor is killing for revenge legal anywhere in our country or in the civilized world.

...But in the minds of everyone not vested in the letter of the law versus the spirit of the law, it's right. While often misused, this is an example of "right versus legal"....

What would you know about the "letter versus the spirit of the law"? More of your fantasies! And while you might think taking the law into your own hands and killing for revenge is right, there's a whole lot of folks in this country who don't agree.

Now this has been the last off-topic detour in this thread. Further off-topic posts will be deleted and infractions issued.

Those who continue to have concerns about the Legal Forum, and the Guidelines that apply, might want to review this thread: Legal Forum Participation.

For an overview of the law regarding the use of force see: An Overview of Basic "Use of Force" Law.

 

[JohnKSa]

One's thoughts about how things should be are irrelevant.

Context is everything.

How we think things should be should motivate us to try to make the world a better place. Especially in terms of who we elect and what sort of effort we put forth to make sure that our legislators don't lose track of what's important to us.

But in the context of understanding when deadly force is justified and when it's not, how we think things should be just confuses the issue. At that point, what's important is how things are.

His wife was assaulted and he got to the perp before the police did. End of story. Yes, I know this isn't politically correct. Yes, i know this isn't "good form". Yes, I know that under New York law, it isn't apparently legal, either.

Political correctness and good form doesn't matter. What matters is that chasing down someone who has committed a crime and killing them for what they did is murder. It's murder everywhere in the U.S., not just in New York. There may still be some third world countries where revenge killings are tolerated by the "legal system" but not in the civilized world.

This is not a "New York" thing, and it's nothing new.

Here's an exerpt from the 1879 Texas Penal Code.

https://www.sll.texas.gov/assets/pd...9/1879-4-penal-code-of-the-state-of-texas.pdf

ART. 570. Homicide is permitted by law when inflicted for the purpose In preventing of preventing the offense of murder, rape, ...

2. The killing must take place while the person killed was in the act of
committing the offense, ...

3. It must take place before the offense committed by the party killed
is actually completed; except that, in case of rape, the ravisher may be
killed at any time before he has escaped from the presence of his victim...​

Even over a century ago, and even in TX, once the rapist had escaped from the presence of his victim (as this one had when he stepped into the elevator), deadly force would not have been allowed.

 

[Carl N. Brown]

Do I have this right? Since defense of self or others is an affirmative defense to a chargable assault or homicide, you must undergo adjudication:
(a) you must admit to doing the deed, and
(b) you must offer convincing evidence to the prosecutor, grand jury, trial judge or trial jury of justification for the use of force.
It will not be decided in a news report or opinion blog.

 

[Spats McGee]

Do I have this right? Since defense of self or others is an affirmative defense to a chargable assault or homicide, you must undergo adjudication:
(a) you must admit to doing the deed, and
(b) you must offer convincing evidence to the prosecutor, grand jury, trial judge or trial jury of justification for the use of force.
It will not be decided in a news report or opinion blog.

Yeah, that pretty well sums it up, at least in jurisdictions where SD or DoO is an affirmative defense. I don't have time to look up the relevant law, but I'd be willing to bet it's an affirmative defense in NY.

The lay explanation that I've used for several years is this: (1) In ordinary crimes, the defendant usually says, "You can't prove that I did it." (2) In SD situations, the defendant (shooter) has to take the position of, "I did it, but I had a REALLY good reason."

 

[Derry 1946]

I Someone earlier posted the statute that sets forth what factors can reduce homicide to manslaughter, the second one was "extreme emotional disturbance", that seems to me to apply here.

That was me in post 8. I agree that the "extreme emotional disturbance" leaps to mind in this situation. As a slight point of clarification, it's a mitigating factor that can reduce murder (not homicide) to manslaughter. Both murder and manslaughter are forms of homicide, which refers to any killing of a person.

Hom = man or person; cide = killing. Similar concept as pesticide, herbicide, regicide, fratricide, suicide (the killing of a pest, an herb, a king, a brother, or oneself).

A mitigating factor (like "extreme emotional disturbance" or the concept of "temporary insanity" or "irresistible impulse") can result in a reduced charge or no charge or an acquittal. It's not the same thing as a justification, such as self defense, which can also result in a reduced charge or no charge or an acquittal.

Both can be present in the same alleged crime. Their permutations and interactions are very convoluted, probably beyond the scope of this thread, unless Frank decides to generously devote a large chunk of his time, as he often does. Or unless it's covered in some other thread I've never run across.

Old Lady New Shooter, I appreciate your questions and comments. They always shed light on the situation.