Second Degree Murder

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Latest post Thu, Aug 25 2016 7:04 PM by Ford. 13 replies.
  • Wed, Aug 24 2016 3:31 PM

    • LogOfWould
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    Second Degree Murder

    I'm writing a novella that narrates the happenings of a trial against a defendant who's a Clinical psychologist experienced with patients dealing with violence and abuse-related trauma. I'm looking for commentary on the allowability of the charge pursued by the prosecution. Below are some details that I can share at this moment.

    Here is the course of events.

    In heavy rains, a driver in an SUV, while texting, and likely speeding, and driving downhill, on a dimly lit road, at 3:30 AM, hits a cyclist not wearing high-visibility gear. As a result of the hit,the cyclist gets thrown over the roadside 2.5 foot high railing into a steep ditch. During the fall, the victim hits several trees, a few of them marked with blood spatter to indicate the high-speed impact.The driver (Clinical psychologist experienced with patients in trauma from violence) reaches the victim's body. The victim is found conscious, but heavily injured with a shattered clavicle and bleeding from the abdomen. The driver attemps to reposition the victim to stabilize him before calling emergency services, but the victim looks straight at the driver and says, in clear words "its done. i'm ready to go. let me go." with a smile. The driver watches the victim as his eyes dart around trying to take in the surroundings with a smile. Twenty minutes later, the victim closes his eyes. The driver calls emergency services and they arrive within fifteen minutes. The victim is found barely alive, and is pronounced dead at 4:15 AM by paramedics as they transport the body.

    Prosecution wants to try this case as a second degree murder owing to disregard for human life as it does satisfy the lack of premeditation. Prosecution wants to argue that the driver, while able to perform the activities required to contact emergency services sooner, did not do so willingly to allow the victim to die. Prosecution plans to use the defendant's professional history to show that he shows consistent lack of regard for human life and posits that in the face of this accident also wants to act in his best interest and show lack of regard for the victim's life. 

    I want to know if a judge would allow the case to be tried as second degree murder, and also if the approach used by prosecution is valid.

  • Wed, Aug 24 2016 10:02 PM In reply to

    Re: Second Degree Murder

    LogOfWould:
    I want to know if a judge would allow the case to be tried as second degree murder, and also if the approach used by prosecution is valid.

    If you want to write a crime novel, you have to start by reviewing and understanding the criminal statutes of whatever state you want to set your story to take place in.  Then you need to learn the rules of procedure and evidence.  For example, in WA state, a murder doesn't have to be premeditated in order to be first degree murder and character evidence in general is inadmissible.  Who gets charged with what is up to the prosecutor's office.  In WA it can be by indictment or information.  If it's an indictment that means a grand jury was convinced that there was probable cause to believe that a murder occurred.  If it's an information, that comes straight from the prosecutor's office with a statement of probable cause.  The defendant then has a right to seek to dismiss the indictment or formation which are rarely successful....Either choose a subject you are already very familiar with or start researching and studying.

  • Wed, Aug 24 2016 10:40 PM In reply to

    • LogOfWould
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    Re: Second Degree Murder

    Thanks for pointing me in the right direction. 

    In regards to Inadmissibility of character evidence, based on my reading of the Rules of Evidence in WA, rule 404 offers an exception to evidence of character as such 

    "Character Evidence Generally. Evidence of a person's

    character or a trait of character is not admissible for the
    purpose of proving action in conformity therewith on a particular
    occasion, except:
    
        (1) Character of Accused. Evidence of a pertinent trait of
    character offered by an accused, or by the prosecution to rebut the same;"
    
    
    Would testimony from the accused's past "victims", as the trial will show,
    (contd.) not serve as a strong indicator of the accused's extreme disregard to human life?

     

  • Thu, Aug 25 2016 1:04 AM In reply to

    Re: Second Degree Murder

    LogOfWould:
    Would testimony from the accused's past "victims", as the trial will show, (contd.) not serve as a strong indicator of the accused's extreme disregard to human life?

    You need to read that exception more closely. It allows for the DEFENDANT (indicated by the phrase “offered by the accused”) to offer evidence of a pertinent trait of character and, if the defendant does that, then the rule allows the prosecution to introduce evidence to rebut what the defendant has offered (in the words of the rule “to rebut same.”) There is no exception allowing the prosecution to come forward first introduce character evidence to try to paint the defendant as a generally horrible person. The reason for that rule is that the jury is to convict the defendant on evidence that he or she committed the particular crime charged and not rule against him/her for being a bad person generally.

    Because the prosecution only gets to introduce evidence of bad character once the defendant has opened the door by introducing evidence of good character defense attorneys generally don't offer evidence of good character if there is anything at all that the prosecution can then use to paint the defendant as a bad person. They would rather keep that bad character evidence out to avoid inflaming the jury against their client.

  • Thu, Aug 25 2016 1:21 AM In reply to

    • LogOfWould
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    Re: Second Degree Murder

    Thanks very much for that clarification. This helps me out a lot. 

  • Thu, Aug 25 2016 8:41 AM In reply to

    Re: Second Degree Murder

    LogOfWould:
    Prosecution plans to use the defendant's professional history to show that he shows consistent lack of regard for human life and posits that in the face of this accident also wants to act in his best interest and show lack of regard for the victim's life.

    The second half of this sentence doesn't make much sense ("posits that in the face of this accident"?), and it's really not clear what any of this means.

     

    LogOfWould:
    I want to know if a judge would allow the case to be tried as second degree murder

    Under Washington law (RCW 9A.32.050(1)), "[a] person is guilty of murder in the second degree when:

    (a) With intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person; or

    (b) He or she commits or attempts to commit any felony, including assault, other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants. . . ."

     

    It seems to me that it would be more than a bit of a stretch to prove that the defendant intentionally caused the death of the victim.  I think it is far more likely that it would be tried as first or second degree manslaughter under RCW 9.32.060 or 9.32.070.  Of course, a lot of this depends on how much of the facts mentioned in your post the prosecutor has evidence to prove.  You told us the defendant was "likely speeding" and texting, but does the prosecutor have evidence of any of that?

     

    LogOfWould:
    and also if the approach used by prosecution is valid.

    Not sure what you mean by this.  If this is a question about your statement that the prosecutor "plans to use the defendant's professional history," you'll have to explain what you mean by this.  All you've told us is that the guy is a clinical psychologist experienced with patients in trauma from violence.  How that might be relevant here is totally unclear from your post.

  • Thu, Aug 25 2016 8:48 AM In reply to

    Re: Second Degree Murder

    LogOfWould:
    based on my reading of the Rules of Evidence in WA, rule 404 offers an exception to evidence of character as such

    Rule 404(a)(1) allows the DEFENDANT to offer evidence of character that is inconsistent with the crime charged and, if the defendant does that, then the prosecutor may offer character evidence to rebut the defendant's evidence.  It does NOT allow the prosecutor to offer character evidence in the first instance.

     

    LogOfWould:

    Would testimony from the accused's past "victims", as the trial will show,
    (contd.) not serve as a strong indicator of the accused's extreme disregard to human life?

    I have no idea, since your original post contained no information whatsoever about any "past 'victims.'"

     

    I'm not really sure what the theme of this story is supposed to be, but the only intentional act you described was the delay in calling for emergency services.

  • Thu, Aug 25 2016 9:06 AM In reply to

    • LogOfWould
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    Re: Second Degree Murder

    Thanks for the clarificaiton. I was reading Rule 404 incorrectly before but now I've corrected that in my notes.

     

    As for the other victims, I decided to drop that angle as it is clear that it wouldn't be admissible and make no sense to have Defense bring up character witnesses to establish general good character in this case. They were elements that I am no longer going to use for this novella (/short story)

     

    The theme of the story is actually not focussed on the trial, but it focus on death. It compares the defendant's view of the death of the victim, the prosecution's view, the jury view, and the victim's view which (for dramatism's sake I will reveal once the draft is complete). Suffice it to say, the viewpoints will reflect the relationship between the pragmatic, the legal, the popular, and the welcoming. As such, the trial is the vehicle through which these viewpoints become known. The reason I'm spending a lot of time on legal research is that I want the charge, the proceedings, and the examinations to be professoinally satisfying such that lawyers and legal personnel when they read the story, they shouldn't be put off by any laziness. 

  • Thu, Aug 25 2016 9:14 AM In reply to

    • LogOfWould
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    Re: Second Degree Murder

    ca19lawyer2:
    The second half of this sentence doesn't make much sense ("posits that in the face of this accident"?), and it's really not clear what any of this means.

    What I meant was (when I was previously pursuing establishing a general character evidence) that the person has consistently shown self interest as the major driver in professional decisions. This has since been abandoned.

     

    ca19lawyer2:
     You told us the defendant was "likely speeding" and texting, but does the prosecutor have evidence of any of that?

    With regards to this: I want to leave this for prosecution to address. While there may be circumstancial evidence and a policeman might say that speeding was likely a factor in the accident, I wanted prosecution to bring this up and create a lingering feeling in the jury about the defendant. Sure I understand that in trial, this additional theory to paint the defendant's negligence may be dismissed (and objected, or discredited in cross examination of the testifying policeman) having that bit in creates doubt and I wanted the jury to go through that doubt.

     

     

     

  • Thu, Aug 25 2016 9:56 AM In reply to

    • Ford
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    Re: Second Degree Murder

    LogOfWould:
    Suffice it to say, the viewpoints will reflect the relationship between the pragmatic, the legal, the popular, and the welcoming. As such, the trial is the vehicle through which these viewpoints become known.

    The relevant Rules of Evidence will be your hurdle.  To me, it sounds like you want the trial to paint the reality of these views, but, as I've told tons of clients, trials are not about reality - they are about "evidence."  "Evidence" is just the stuff that makes it past the rules that are designed to keep the jury from wandering all over the place - putting "not guilty" people in jail.

    For instance, you want to present the prosecutor's view of the death, but the prosecutor likely isn't going to get to talk about death in general, or any other deaths in particular.  The jury is supposed to focus on the actions of the defendant, not the emotional damage that death causes.  That stuff causes a jury to convict out of sympathy for the victims, not because of the potential criminality of the defendant.  (I suppose you COULD present it through evidentiary hearings where the state is arguing its beliefs and the judge is telling the state to shut up and not cause a mistrial - pre-trial evidentiary hearings (motions in limine), sidebars, or situations where the jury is excused and the parties argue an issue to the court during the trial. That seems complicated.)

    Along that "evidence" not reality line, a whole lot of the info you present in the first post is problematic because the driver is the only witness to most of it, and he has a right to remain silent.  He sounds like an educated person who would know to retain counsel if he is involved in a car accident that results in a death.  For instance, the statement from the V to just let him die - the state doesn't know about it unless the driver starts talking to the cops.  Talking to the cops like that doesn't sound appropriate for your character, unless you are making him a sociopath or something, which seems to get overly dramatic and does not seem to match the theme of the piece you are working on.

    The character evidence you were addressing would be relevant if driver testifies and "opens the door" to that testimony.  Plenty of defendants want to do that.  Plenty of them do it.

  • Thu, Aug 25 2016 10:30 AM In reply to

    • LogOfWould
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    Re: Second Degree Murder

    Interesting! Thanks, that was very insightful. 

    In regards to the defendant, you're right, He's not gonna be a sociopath or anything, and well-spotted that it wouldn't sit with the theme. 

    And you're right, the Rules of Evidence are my biggest hurdle at this point because even the defense's stance relies on it heavily. Since any topic such as "Victim's last words" might already be uncovered by the detective, a difficulty I'm having is how to uncover the "last words" phenomenon during the trial (during defendant's cross-examination.) The plea I was working with when I first wrote the complete outline was of shock and panic. (btw the first post isn't the complete outline, just scarce parts of it. In retrospect, that might have been a big contributor to confusion for the responders: I apologize.) I am still trying to brew the defense's plea at this point. 

  • Thu, Aug 25 2016 11:05 AM In reply to

    Re: Second Degree Murder

    LogOfWould:
    Since any topic such as "Victim's last words" might already be uncovered by the detective, a difficulty I'm having is how to uncover the "last words" phenomenon during the trial (during defendant's cross-examination.)

    In the vast majority of cases, a criminal defendant isn’t going to testify in his trial so the prosecution will never get the chance to cross-examine him/her. Too often little good comes from putting the defendant on to testify; it just opens the door for the prosecution to make mince meat out of the defendant in cross-examination. Defendants have the right to remain silent and not testify, and their lawyers will advise them that the best thing they can do is keep their mouths shut. Some defendants will insist on testifying anyway, but that often doesn’t go well when they do it against their attorney’s advice. There are some kinds of cases where the defendant‘s testimony is needed to make his/her defense, but the description of your story so far does not suggest to me that this is a situation that would call for the defendant to have to testify.

  • Thu, Aug 25 2016 12:35 PM In reply to

    Re: Second Degree Murder

    LogOfWould:
    I am still trying to brew the defense's plea at this point.

    Do you mean the defense he might present if it went to trial?  The first thing you have to do is lay out what facts the police and prosecutor can actually prove.  The coronor/pathologist will testify to the victim's injuries and that he's definitely dead, but all his injuries would be consistent with the accident....The defense always starts from there--what can they actually prove and how do we stop or counter it at trial.

  • Thu, Aug 25 2016 7:04 PM In reply to

    • Ford
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    Re: Second Degree Murder

    Have your defendant get blitzed-out drunk and in an argument with his mistress, where he blurts out the statement of the now-deceased driver.  And she goes to the cops because he is like six months past the time where he told the mistress he was going to leave his wife for her.

    Alcohol ex machina.  Jilted lover ex machina.

     

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