legal rationale for manslaughter charge in this case?

[Derry 1946]

Thanks for the correction, the explanation of the difference between a "mitigating factor" and a "justification", and the kind words.

My pleasure.

 

[Frank Ettin]

...Three examples: People v. Padgett, People v. Huntley, People v. Steele, all of NY.

It would be useful to look at the opinions in those cases to see how the and when the legal principles being discussed apply in real life. First, let me point out that the courts in their opinions in these cases refer to a "charge" in the context of charging the jury or giving a charge to the jury. In some jurisdictions an instruction given to a jury by the trial judge regarding the law to be applied is referred to as a "charge."

I. People v. Steele, 26 N.Y.2d 526 (1970)

These case grew out of an altercation involving the defendant, Lisa Steele, her brother, and a third party named Thompson. The prosecution's theory was that during that altercation Thompson was shot by the defendant and stabbed by her brother. The defendant testified that she wasn't present at the time and did not shoot Thompson.

Not withstanding the defendant's denial and alibi, the defense asked for a justification instruction to the jury. The instruction was denied. The Court of Appeals reversed.

First, th Court of Appeals found that there was evidence in the record supporting a justification defense noting (at 528 -- 529, footnotes omitted):

...Ordinarily, the possibility of the defense would not appear until injected by the defendant (see, e.g., People v. Sandgren, 302 N.Y. 331) but, here, the prosecution's case, viewed separately, warrants the requested charge. The People's eyewitnesses testified that Thompson possessed the knife, and the assistant district attorney, with commendable candor, frankly admitted that the complaining witness was the initial aggressor. Consequently, a jury could find that defendant reasonably believed that Thompson was "using or about to use unlawful deadly physical force" (revised Penal Law, § 35.15, subd. 1, par. [a]) at the time she shot him.....

With regard to the alibi defense, the Court of Appeals stated (at 529):

...the question remains whether the alibi defense precludes the requested charge. We have recognized that the jury may believe portions of both the defense and prosecution evidence (People v. Asan, supra, at p. 530). Since a jury might disbelieve the alibi and still find, on the prosecution's evidence, that defendant acted justifiably, the prosecution claim of inconsistent defenses is not a bar to the charge requested. ....

II. People v Huntley (87 AD2d 488, affd 59 N.Y.2d 868)

As discussed in the opinion of the Appellate Division, the primary ground for the appeal and the reversal was juror misconduct. However, the Appellate Division also addressed a second issue presented on appeal: the trial judge's refusal to instruct the jury that justification is a defense to manslaughter in the second degree. The Appellate Division found that refusal to be reversible error, stating (at 494):

... According to Huntley's version of the episode, Simmons had approached him with a knife and demanded his money. Further, Huntley testified that he broke away and ran across the street pursued by Simmons, still holding his knife, and that it was during the ensuing scuffle that the knife inadvertently went into Simmons. Thus, if the jury believed defendant's version of the event, it could have found that he was justified in using force to thwart an attempted armed robbery and the court's failure to provide that charge was reversible error ...

III. People v. Padgett, 60 N.Y.2d 142 (1983)

The Court of Appeals outlined the case (at 144):

...[Defendant] testified that he and his friends were telling jokes and having a good time at the bar when they were informed by the bartender that their presence was no longer welcome. The trio attempted to leave by what turned out to be the emergency exit door. The alarm went off, causing the bar owner to verbally abuse the defendant. After he reset the alarm, the owner threatened defendant, who became frightened. Defendant, believing the owner was about to hit him, tried to exit through the emergency door. He pushed the frame of the door hard, and the glass shattered, but he stated that he neither pushed on nor punched the glass. An altercation ensued, joined in by others in the bar.

Defendant requested that the court charge the jury on the defense of justification as being applicable to the four assault charges as well as the criminal mischief charge. The trial court instructed the jury that justification was a defense to the assault charges, but refused such an instruction with regard to the charge of criminal mischief. The court stated that the defense of justification is not applicable to a charge of criminal mischief. Defendant was acquitted of the four assault charges, but convicted of criminal mischief.....

Note that the charge of criminal mischief arose from the breaking of the glass in the door.

In reversing the conviction and ordering a new trial, the Court of Appeals found (at 145 -- 146):

...defendant claimed he was trying to avoid what he believed was an attack by the bar owner. He pushed hard against the emergency exit door — hard enough, apparently to break the glass — in order to retreat from what he described as unprovoked aggression. The justification defense seems peculiarly appropriate to a situation such as this, where defendant inflicts damage to property in his attempt to avoid physical injury to himself. The People argue, however, that defendant was not entitled to the justification charge, because his testimony indicated not that defendant caused property damage to avoid personal injury, but that he never intended to cause property damage. The People would limit the availability of the justification defense to cases in which the conduct is admitted to have been intentional, but in avoidance of a greater injury. The cases on point, particularly Huntley, indicate that the People have tendered a much too narrow interpretation of the circumstances under which this doctrine may be applicable.

Here, as in Huntley, an aspect of the defendant's testimony is inconsistent with the defense. In that case, Huntley never admitted that he intentionally stabbed the victim, just as the present defendant never admitted that he intentionally broke the glass. Indeed, it appears well settled that this type of inconsistency should not deprive defendant of the requested charge.....

IV. Discussion

One theme runs through all three cases: In each case there was evidence in the record from which it could be concluded that the actions of the defendants, for which they were criminally charged and on trial, were legally justified. In Steele that evidence, perhaps anomalously, came from the prosecution witnesses.

And in both Huntley and Padgett the injury or damage upon which the criminal charges were based were the result of action reasonably undertaken by each of those defendants to avoid personal injury to themselves resulting from the wrongful conduct of another. So although the specific results of their respective acts weren't the intended consequence of those acts, they were natural and direct consequences of those act.

In Steele the defendant didn't claim justification. She claimed she wasn't there and didn't do it -- certainly claims inconsistent with a claim of justification. But since she was convicted, at her first trial, it looks like he alibi wasn't believed by the jury. It would be interesting to know how she handled the issue at her new trial (if the prosecution decided to pursue the case).

 

[Derry 1946]

Thank you, Frank, for taking the time to flesh those cases out. You make your points most persuasively. Again, these are New York cases, and not applicable everywhere. I don't know for certain, but I think some jurisdictions do not permit inconsistent defenses. Perhaps a better informed mind on that point will chime in.

 

[Frank Ettin]

...I don't know for certain, but I think some jurisdictions do not permit inconsistent defenses....

In any case, a practical consequence of inconsistent defenses will usually be an erosion of the defendant's credibility.

Most of the time in a self defense case the defendant's story will be a core part of his self defense claim, so maintaining credibility can be especially important. It's hard to imagine a jury giving any credence to a defendant's story when it goes something like: I was justified in shooting him; and if you don't believe that, it was an accident; and if you don't believe that, I wasn't there.

Now in Steele there was nothing inconsistent about her story. She claimed she wasn't there, and the jury didn't believe her. The jury found that she had shot Thompson and convicted her. The possibility that her shooting of Thompson was justified in defense of her brother came from the testimony of prosecution witnesses, but the trial judge didn't give the jury a justification instruction. I suspect any inconsistencies there disappeared in her re-trial, if the prosecution pursued the case.

In Huntley I suspect that the trial judge declined to give an instruction to the effect that justification is a defense to manslaughter in the second degree because in New York second degree manslaughter would be, at least in the context of the facts in Huntley, homicide as the result of reckless conduct (NYPC 125.25(1)), i. e., the result of reckless conduct rather than an intentional act. But Huntley did intentionally fight off the wrongful attack of another (and presumably committed one or more batteries in the course thereof).

 

[Derry 1946]

In any case, a practical consequence of inconsistent defenses will usually be an erosion of the defendant's credibility.



Most of the time in a self defense case the defendant's story will be a core part of his self defense claim, so maintaining credibility can be especially important. It's hard to imagine a jury giving any credence to a defendant's story when it goes something like: I was justified in shooting him; and if you don't believe that, it was an accident; and if you don't believe that, I wasn't there.

I completely agree, and I recall at least one case in which Justice Scalia did too.

 

[Arizona_Mike]

There was an attorney on TV pointing out that case involves a burglar (someone who unlawfully enters for the purpose of committing an offense) and attempted rapist still in a private residential building full of potential victims, not a public place. He was still in the act of burglary at the very least at the time of the encounter.

Mike

 

[JohnKSa]

There was an attorney on TV pointing out that case involves a burglar (someone who unlawfully enters for the purpose of committing an offense) and attempted rapist still in a private residential building full of potential victims, not a public place. He was still in the act of burglary at the very least at the time of the encounter.

The guy may not be convicted--I tend to think that it will be hard to seat a jury that won't be sympathetic.

That said, chasing someone down and beating them to death is going to be difficult to legally justify. Burglar or not, rapist or not, murderer or not, still in the building or not. Once someone breaks off and genuinely tries to escape, justification for deadly force generally evaporates.

 

[old lady new shooter]

The guy may not be convicted--I tend to think that it will be hard to seat a jury that won't be sympathetic.

That said, chasing someone down and beating them to death is going to be difficult to legally justify. Burglar or not, rapist or not, murderer or not, still in the building or not. Once someone breaks off and genuinely tries to escape, justification for deadly force generally evaporates.

The point about the would-be rapist still being in a private building I think is important. One article I saw quoted the husband as saying he didn't want the assailant to do to anyone else what he had done to the wife. We do know that the wife was not a pre-selected target, the assailant was filmed going door to door in the building trying to get in to whatever apartment he could. Further, the surveillance video of him going toward the elevator did not look like he was "trying to escape", somebody "trying to escape" would more likely be running, he was kind of sauntering, I bet he had a smirk on his face.

Separately, I agree 100% that the jury will be very sympathetic. Maybe the husband is technically guilty of manslaughter (yes, I know it was reduced to assault) under the "extreme emotional distress" justification, but I can't see any jury giving him a jail sentence for what he did.

 

[Arizona_Mike]

I'm assuming the husband would have to be mindful that the person was leaving or "fleeing" (being conscious of movement away). It dose not appear that the husband does not even noticed the rapist until encountering his wife nude on the hallway floor (from the descriptions and the video, it appears she was just off camera). At that T-sub-zero instant, the man was right next to him.

Mike

 

[Sam1911]

While many things will be up to a jury to make a final decision about, the fact that the guy was in a "private building" doesn't really speak to whether he was still attacking someone. (And even then, being within the walls of an apartment building is not the same as being inside an apartment itself.)

Further, lethal force is never justified in preventing what actions someone MIGHT do in a few minutes or later that day. Only in stopping what is happening RIGHT NOW. So if you say, "I fired/beat/stabbed him because I was afraid he was going to go attempt to rape someone else in the building," that's an admission of criminal homicide.

 

[JohnKSa]

Further, lethal force is never justified in preventing what actions someone MIGHT do in a few minutes or later that day.

Never might be too strong a word. But short of some really unusual circumstances I would agree.

I could see that kind of justification might be successfully used in a situation where an attacker, for example, had systematically killed more than one victim in view of another citizen and, having exhausted the ready supply of victims in the immediate vicinity was leaving the scene with the murder weapon(s) and in such a manner that the citizen observing the criminal had every reason to believe that he was not fleeing after having committed a crime but was actually engaged in an ongoing attack and was searching for additional victims.

That would be a situation where one isn't merely speculating that the attacker might seek out additional victims in the future but rather where the circumstances gave rise to the reasonable belief that the attacker was still actually in the process of committing an ongoing violent crime with multiple victims.

Obviously that wouldn't apply to this specific case.

 

[Sam1911]

Ok. That would be other than "never." But darned close to "never."

In this case, if the defendant was to make such a claim he'd have to give very specific, credible, and persuasive reasons for why he knew or had every reason to believe that someone (probably a pretty specific someone, at that) was in immediate risk from this guy. Just "well, he was in the building and I figured he might go and attack someone else so I killed him," wouldn't cut it by a mile.

 

[Frank Ettin]

...I could see that kind of justification might be successfully used in a situation where an attacker, for example, had systematically killed more than one victim in view of another citizen and, having exhausted the ready supply of victims in the immediate vicinity was leaving the scene with the murder weapon(s) and in such a manner that the citizen observing the criminal had every reason to believe that he was not fleeing after having committed a crime but was actually engaged in an ongoing attack and was searching for additional victims....

That's an interesting theory, but I really haven't seen it floated anywhere or any case law that would suggest it has legs. Of course it probably hasn't come up.

The most on-point case of which I'm immediately aware is Tennessee v. Garner Memphis Police Department v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In that case the Supreme Court looked at the reasonableness of using lethal force to stop a fleeing suspect and did so in the context of a 42 USC 1983 civil suit. In Garner the Court said (471 U.S. 1, at 10 -- 11, emphasis added, footnotes omitted):

...It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners.

Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, the presently available evidence does not support this thesis. The fact is that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape,.....

How this might translate to a private citizen's use of force is unclear. And and it's also unclear how strong a showing of a serious threat to others will be necessary for an LEO to justify the use of lethal force to stop a fleeing suspect. But the Court talks in terms of probably cause, which is a higher bar than a mere suspicion.

If anyone is aware of any cases more closely addressing John's hypothetical, I'm sure we'd all be interested.

 

[danez71]

There was a instance where the police shot a fleeing home invasion suspect that was driving 100mph on the wrong side of the freeway.

They shot him from a police helicopter.

While fairly rare, the police (I think all LASD) have done it about 10 times in the last 15 yes or so and have trained to do it since, I believe, the 80s or maybe 90s.

http://abc7.com/news/deputies-in-helicopter-shoot-wrong-way-driver-after-chase/991282/

I remember that the parents sued the LASD for not using less lethal tactics toward their repeat offender, home invasion robbing son, but I can't seem to find any follow up.

Perhaps someone with those resources can find the case; the person's name is in the article.



However, again, this is the police doing it; not a citizen.


Statistically, it would seem this has had to come up more times.

 

[Frank Ettin]

There was a instance where the police shot a fleeing home invasion suspect that was driving 100mph on the wrong side of the freeway.....

Yes, Mullrnix v. Luna (Supreme Court, No14--1143, 2015). It involved a question of qulified immunity for a use of lethal force to terminate a high-speed chase. The Court found that the use of lethal force was reasonable for the purposes of the Fourth Amendment, so the officer was protected against a 42 USC 1983 suit. The Court considered it in terms of the danger the suspect created by reason of his efforts to avoid arrest (slip op. at 12):

...The fact is that when Mullenix fired, he reasonably understood Leija to be a fugitive fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw if the police did not abandon their pursuit, and who was racing towards Officer Ducheneaux’s position. ...

But again, it's a 42 USC 1983 case. It would be interesting to find some cases involving private citizens.

 

[JohnKSa]

Here's a shooting from before the concealed carry law passed in TX.

It has a witness killing a fleeing murderer and escaping indictment. Most agreed that the no-bill wasn't really the result of the shooting's legal justification but rather out of a sense of outrage over the callous nature of the murder. A man shot a woman at a mall, then walked up close to her and executed her with a shot to the head.

http://www.people.com/people/archive/article/0,,20117241,00.html

"... <Todd Broom> saw Edwards, a cable-TV company supervisor, gun down Taylor, a flight attendant who had recently ended their four-year relationship. "I was right between the girl and where his car was parked," says Broom. "He went right past and looked at me. I got out of my car, pointed my gun and yelled for him to freeze. The first time I shot, he was still in front of the open door [of his car]. When I fired the second shot, he was inside." That slug, police say, pierced the car door and fatally wounded Edwards in his left side.​

Broom was not indicted although his own statement indicates that he fired on a man to keep him from escaping when there was no clear threat to himself. He also appears to have escaped prosecution for carrying a handgun illegally.

HOWEVER, the consensus was (as stated in both of the links) that the grand jury's verdict was not really consistent with the law.

http://www.deseretnews.com/article/94147/NO-INDICTMENT-IN-PARKING-LOT-SHOOTING.html?pg=all

"Prosecutor Norm Kinne said the grand jury's decision "reflects the way the average citizen feels about the case, whether it's based on the law or not.""​

http://articles.latimes.com/1990-03-29/news/mn-222_1_grand-jury

"<Broom's> attorney, Frank Jackson, said: "We feel that equity prevailed in this case, and sometimes you have to temper the law with equity in order to arrive at the just result.""​

The case under discussion may closely parallel the case under discussion. Both have a witness killing a fleeing criminal although there is no obvious legal justification for doing so. In both cases, prosecution of the witness who killed the criminal may be difficult due to the feelings that the average person has about the nature of the deceased's offense.

 

[old lady new shooter]

There was a instance where the police shot a fleeing home invasion suspect that was driving 100mph on the wrong side of the freeway.

They shot him from a police helicopter.

While fairly rare, the police (I think all LASD) have done it about 10 times in the last 15 yes or so and have trained to do it since, I believe, the 80s or maybe 90s.

Well, somebody driving 100 mph on the wrong side of the freeway is a clear and present danger to other motorists, not to mention that he was also armed.

Re shooting from the helicopter, where I live the helicopters seem to be the main way the police control crime, they fly over my house all the time. Black-and-whites go to investigate crimes that already happened, like the double stabbing a couple weeks ago at the 7-Eleven around the corner (but while the officers in the black-and-whites were investigating the crime scene etc, helicopters were overhead looking for the BG, who was thankfully apprehended after a few hours), and cruise the streets giving traffic tickets, but if I hear a siren it's ALWAYS fire dept / paramedics, I can't even remember the last time a siren turned out to be a black-and-white.

 

[Spats McGee]

. . . . Tennessee v. Garner Memphis Police Department v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In that case the Supreme Court looked at the reasonableness of using lethal force to stop a fleeing suspect and did so in the context of a 42 USC 1983 civil suit. . . .

. . . . Mullrnix v. Luna (Supreme Court, No14--1143, 2015). It involved a question of qulified immunity for a use of lethal force to terminate a high-speed chase. . . .
But again, it's a 42 USC 1983 case. It would be interesting to find some cases involving private citizens.

I don't want to get to "inside baseball," as Frank likes to call it, but . . . . Frank knows this, but for purposes of keeping this discussion on track, I would like to point out that a criminal charge against a non-LEO is a whole different beast from a s1983 excessive force suit against a police officer. The former is a claim that the non-LEO violated a state (usually) statute and is governed by criminal law doctrines, rules of criminal procedure, etc. The latter is a civil case, usually a claim that the officer violated the plaintiff's constitutional rights (often mixed with claims of violations of statutory rights), and embraces doctrines like qualified immunity. It's also important to note that qualified immunity doesn't apply to non-governmental actors.

 

[old lady new shooter]

Charges Dropped

http://newyork.cbslocal.com/2016/09/07/mamadou-diallo-charges-dropped/

.................

Two very interesting points from the article:

"An autopsy determined [the would-be rapist's] death was caused by complications related to his injuries, cocaine intoxication and heart disease."

and

"[The would-be rapist] had been arrested 19 times before on charges including robbery, arson, assault, and more."

 

[Double Naught Spy]

Wow, that is a twist. I am surprised. I don't agree with what he did, but I can see the charges being dropped. If he didn't take the plea deal, the DA may have figured there being a tough job to get a conviction from a jury.

 

[Frank Ettin]

....If he didn't take the plea deal, the DA may have figured there being a tough job to get a conviction from a jury.

That's most likely part of it. Another is hinted at in the story:

...Diallo caught Nash as he was running away, and a fight broke out, according to authorities....

So if Diallo's story is that he tried to detain Nash, Hash resisted, and Diallo had to defend himself, a self-defense plea probably becomes more attractive to a jury.

Politics also played its part:

• ...Nash’s younger sister was among those who urged the District Attorney’s office to drop the remaining charges...

  and
  
  

• ...Diallo’s supporters included members of the Black Lives Matter movement, civil rights leaders, and educators...

 

[Double Naught Spy]

So if Diallo's story is that he tried to detain Nash, Hash resisted, and Diallo had to defend himself, a self-defense plea probably becomes more attractive to a jury.

We all saw the video (link provided in Post #4). There was no real "running away" even if that was what was claimed. He was leaving, sure. There wasn't any trying to detain Nash and and Nash wasn't resisting such that Diallo needed to defend himself.

The video shows Nash was waiting on the elevator. The door opened and Diallo walked out and when Nash stepped in, Diallo turned and hit him with a tire iron repeatedly. It was a vicious attack. Go back and rewatch. There is no attempt to detain.

 

[Frank Ettin]

....The video shows Nash was waiting on the elevator. The door opened and Diallo walked out and when Nash stepped in, Diallo turned and hit him with a tire iron repeatedly. It was a vicious attack. Go back and rewatch. There is no attempt to detain.

Yes, the current spin doesn't seem to be entirely supported by the video.

 

[old lady new shooter]

Any thoughts on what influence, if any, the autopsy report had?

An autopsy determined [the would-be rapist's] death was caused by complications related to his injuries, cocaine intoxication and heart disease.

I.e. would there have been reasoning along the lines of if he hadn't been high on cocaine (the part that was his own choice) maybe the beating wouldn't have killed him? Sort of like contributory negligence or something?

 

[Frank Ettin]

Any thoughts on what influence, if any, the autopsy report had?

An autopsy determined [the would-be rapist's] death was caused by complications related to his injuries, cocaine intoxication and heart disease.

I.e. would there have been reasoning along the lines of if he hadn't been high on cocaine (the part that was his own choice) maybe the beating wouldn't have killed him? Sort of like contributory negligence or something?

It's really a matter of public perception more than anything else. Simply put, making Nash less sympathetic helps relieve any pressure on the prosecutor to press matters against Diallo.

But legally Nash's medical frailties are irrelevant. The injuries caused by Diallo's acts, and thus Diallo's acts, are the legal cause of Nash's death even if similar injuries would not have killed someone in better health, or stronger, or younger, etc.