Consider the following fact pattern, as a jury did this week: A man shoots a woman through the head during an argument in the kitchen of his own home. As he shoots her, his girlfriend, the mother of his his three children, jumps onto his back. He shoots a third woman in he chest. She runs from the kitchen and down a narrow hallway; when she returns moments later, he shoots her again. When his gun jams as he tried to shoot her a third time, he tosses the weapon to he side, choking her. He is charged with murder as to the first woman, and attempted murder and assault as to he second woman.
The defense is self-defense. He and his girlfriend had been fighting moments before the shootings. As she and her girlfriend left the home in the wee hours of the morning of purchase a small package of cigars to make "blunts", large marijuana cigarettes, he told them not to return. He was tossing his girlfriend's clothing on the driveway when the decedent got angry and returned to the house, demanding that my client pick up the discarded clothing and stop acting like a child. This confrontation ended up in the kitchen, amid pushing, shoving, spitting. My client reached for a gun stored on the basement landing and then used it, immediately, without warning.
What say you, knowing no more? Murder or self-defense?
Self-defense is a complete defense to the crime of murder. We say that a person faced with immediate risk of serious physical harm can use deadly force. Thus a person can shoot to kill with justification if faced with such a threat.
It took one week to present the evidence in this case, so obviously a few short paragraphs cannot convey the nuances of what happened in that kitchen one January 2008. But this summary frames the legal issue the jury had to decide: Was the defendant justified in killing the decedent? We chose to defend the charge of murder on the grounds of self-defense, and self-defense alone. It was supposed to be an all or nothing game. The jury acquitted my client of murder, but did not set him free.
The state got nervous just as the case was to be submitted to the jury. And for good reason. We first tried this case one year ago, and a jury of 12 could not agree on a verdict as to the dead woman or on whether the defendant had tried to kill the surviving victim. That jury did, however, return a verdict of guilty on assault in the first degree and criminal possession of a firearm. My client was, you see, a convicted felon; it was unlawful for him to possess a firearm. In the second trial, the jury heard the same evidence, but was told to consider only the fatal shooting. It did not learn of the assault conviction or the felony-status of my client as my client chose not to testify.
Although the state only charged murder, it requested what is known as a lesser included offense of manslaughter in the first degree. We then asked for lesser included offenses, including second degree manslaughter. Self defense was a complete defense to all of these as well. In short, the jury was invited to compromise. It could reject the state's charge of murder, and the defendant's claim of self-defense. And that is precisely what the jury did, convicting the defendant of manslaughter in the first degree.
Lesser included offenses are little understood by the lay public. I fear they are also little understood by juries, even after the judge explains the law to them: it took almost an hour and a half to read the jury the legal instructions as the end of this case. Lesser included offenses invite compromise by juries, and sometimes the compromises make little sense.
In this case, the state charged that my client intended to cause the death of the dead woman, and then caused that death. That's murder in Connecticut, plain and simple. We admitted he killed her, but claimed it was self-defense. Neither side argued that he merely intended to cause her serious injury, but killed her without the intent to do so, the crime for which he was convicted.
Any crime is merely a combination of elements consisting of the defendant's state of mind and his actions. The law grades mental states in terms of blameworthiness, with acts specifically intended found worse than those merely intended, but not consciously seeking a prohibited end. Less culpable are reckless acts, those committed in the face of an unjustifiable risk of harm; least culpable of all are negligent acts.
Lesser included offenses invite a jury to move up and down this hierarchy of mental states, assigning blame to a less culpable mental state than the one associated with the crime charge. Lesser included offenses also recognize that a person's intent is hard to discern in the heat of the moment: thus, in a homicide, a defendant may have had the objective to kill, or he may merely have had the intent to cause injury, with a resultant, but unintended death. A lesser included offense charges conduct that is entailed, or otherwise necessary, to commit the crime charged. Thus, while it is unlawful in most cases to kill, if one unlawfully intends to kill, it goes without saying that one was also reckless and negligent. One can unlawfully kill without intending to do so.
If you are not a lawyer and your head hurts here, it probably should. Lesser included offenses can be confusing. My fear is that they invite juries to compromise when they aren't at all sure that the state has proven its case, but they are still troubled by the conduct alleged.
In my client's case, a jury concluded he unlawfully used a gun to kill another person. It rejected self-defense. But it concluded that despite shooting the victim in the head at close range with a high-caliber weapon, he did not intend to kill. Instead, the jury found he merely intended to cause her serious injury. Yet the shooting was not deemed accidental or merely reckless. The jury simply discounted the objective my client sought to accomplish.
My fear is that this is a classic compromise. The jury most likely was troubled by the fact that at the time of her death, the decedent was intoxicated, and under the influence of a hallucinogen, cocaine and marijuana, a lethal cocktail, we argued, that rendered her out of control. We argued that the close confines of the kitchen and the agitation of the decedent made self-defense justifiable. Was the jury's no really a maybe? And if it was maybe, wasn't there the sort of reasonable doubt that should have yielded an acquittal of all charges? This is troubling.
That the state lacked the confidence in its case to stick to it to at the end is troubling, too. The state charged murder, but, after the evidence was in, hedged its bet by asking for a lesser included offense. The law permits either party to do so. But it strikes me as unfair: It encourages a form of shotgun justice in which the state is free to overcharge a case by alleging the most serious allegation it can find, and then winking at jurors as it begs them to find a defendant guilty of something, even if not the crime charged. It is far harder to dodge a handful of stones thrown in anger than it is to sidestep one missile.
My client is relieved, and his family is ecstatic. He will not face 60 years in prison; and he will be eligible for parole after a sentence far less than that customarily imposed for murder. Of course, the jury was never told about the consequences of a gullty plea. In Connecticut, we call it justice to sever fact-finding and consequences, a species of moral reasoning that permits the state to ask jurors to hold a person accountable in a contextless void.
Sentencing will take place in a couple of months on this compromise verdict. My client is already serving a long prison term for his assault of the other woman shot in the kitchen the night he killed the other victim. We will be asking for the new sentence to be served along with one previously imposed. No one won this sad and troubling case.
I always thought the white collar guys were a more gentlemanly cast of lawyers. They certainly look the part: Expensive suits, fancy shoes, and brief cases that all but announce: "Power, power, power." Most of my legal career has been spent in the tweedy trenches defending more obvious crimes, such as murder, rape and narcotics offenses. Hell, I used to consider bank robbery a white collar crime.
But I've been defending folks accused of white collar crimes increasingly in recent years. I even bought a couple of new suits and a new pair of shoes not long ago. And I've learned, to my surprise, that the lawyers aren't more gentlemanly at the white collar bar. Indeed, I've come to expect they are less so.
In the past month I've been approached by a people in a great deal of trouble with the United States Government. The clients are looking down the barrel of mail fraud, wire fraud and false statement charges. These aren't the eye-popping sorts of offenses that typically make headlines. Rarely does DNA evidence matter in such case; and almost always there are no guns. But the clients are every bit as terrified as those facing other criminal charges. Laws that are written in so broad and vague a manner as to make almost everything a crime transform confident leaders into cowering defendants.
The other day, I sat with someone discussing their situation. The matter of a fee arose. I quoted a fee sufficient to do the work. The client was impassive, and then recited the fees proposed by some of the brand-name players in the white collar bar. To my relief, I was competitive.
I was curious in both cases about how the clients had gone about finding a lawyer. Why had they come to see me? They mentioned other lawyers who sent them to me. I made a silent note to thank the referring lawyers next time I saw them.
And how did you come to see the other lawyers?, I asked. Their answers surprised me: These lawyers had called the clients directly to offer their services. In another case, a lawyer had sent promotional material to a business partner of a potential client. Wow, I thought, the well-heeled really do live different lives. The murder bar has far more class.
The ethics of lawyering recognize that clients are vulnerable people. Needing a lawyer is almost never a good thing. The relationship between lawyer and client should be one of trust and respect. Because the client places his or her liberty in the hands of a criminal defense lawyer, the lawyer's hands should be as clean as possible. The law frowns on lawyers who use runners who drum up business; it also frowns on soliciting clients by making cold calls. Yet, I am told, the practice of soliciting work in such a manner is routine. I was stunned to learn this.
I know the economy is tough just now. Everyone is having a hard time paying their bills. Still, folks keep getting arrested and are in need of counsel. It is understandable that lawyers will compete for a fee. But when the leaders of the white collar bar start diving for dollars, something is wrong. When it comes to lawyering, my sense has always been that good lawyers wait for their phone to ring; you simply do not initiate contact with a prospective client, ever. If that means you don't get invited to some dances, so be it. Better to sit watching than be accused of being a gate-crasher at a wake.