Second Degree Murder vs. Manslaughter

To the surprise of many commentators, Zimmerman was not charged with manslaughter, as was widely predicted, but instead charged with second degree murder. Second degree murder, unlike first degree murder, does not require “a premeditated design to effect the death” of another person, but it still sets a higher bar than manslaughter:

Fla. Stat. Ann. § 782.04(2). Second degree murder.—

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life[.]

Florida’s manslaughter provision is a general catchall for killings that are criminal, but don’t involve either the premeditation or the depraved mind of a murder charge:

Fla. Stat. Ann. § 782.07(1). Manslaughter.—

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter[.]

The key distinction between the two is that the second degree murder charge requires a finding that Zimmerman killed Trayvon while engaging in an act “imminently dangerous to another and evincing a depraved mind regardless of human life.” Take that element away, and you still have the lesser included offense of manslaughter, so both charges are still theoretically on the table.

Unlike Murder 1, for a Murder 2 charge you do not need to show a premeditated plan, or a plan to kill that came into existence prior to the moment of the shooting. Murder 2 just requires that the defendant deliberately, and with so little justification as to be reckless, engaged in conduct that puts others at obvious risk of death or great bodily harm. To give a rough example, imagine an individual who, on a random whim, decides to throw a boulder off a cliff, when that individual knows that there is a path at the bottom of the cliff that people walk on. The individual could not have known if the boulder would kill anyone, and did not actually intend to cause anyone’s death, but could still be subject to a murder 2 charge if in fact someone was struck and killed.

But murder 2 still requires showing a level of recklessness that is difficult to show when the only survivor of the incident is the defendant himself. The fact that Florida is charging Zimmerman with second degree murder, and not manslaughter, is a strong indication that the prosecutor thinks there is some pretty compelling evidence out there in the state’s favor. Even ignoring the self-defense aspect of this case, it is dubious whether there is enough evidence that has been publicly confirmed to support a finding of a “depraved mind with no regard for human life.” So what might the prosecutor have to make them confident enough to bring a murder charge? Some possibilities:

1. The autopsy of Trayvon Martin contradicts Zimmerman’s version of events. It is possible that the autopsy revealed that Trayvon was shot at from a distance and angle that does not support Zimmerman’s story. This strikes me as a little bit unlikely, but it’s possible. We know that Trayvon was shot at “close distance,” but perhaps the coroner’s report was somehow able to confirm that Trayvon was shot from two feet away — it is hard to reconcile Zimmerman’s story with such a finding, if one was made. Or, less likely but still possible, the angle of the bullet wound is inconsistent with Zimmerman’s story. However, if the two were fighting when Zimmerman pulled a gun and fired, my entirely uneducated assumption is that the bullet trajectory could have plausibly been any number of angles, due to movements and jerking and uncertainty about how far Zimmerman was able to draw his gun before firing.
2. The prosecution has evidence that thoroughly discredits Zimmerman. Perhaps either through a combination of small but significant inconsistencies — e.g., if Zimmerman has no evidence of any significant injury, if Zimmerman’s known locations doesn’t support his version of how the encounter occurred, if Zimmerman’s claims that Trayvon was going for his gun were not part of his initial story to police — or through a major, so far unreleased discrepancy — some piece of evidence that has been withheld so far, with blows Zimmerman’s story out of the water — the prosecution believes it has enough evidence to suggest that Zimmerman knows that the killing was not actually in self-defense, and Zimmerman has deliberately crafted a false, alternative version of events to support his self-defense claim. Zimmerman is the only person alive who saw how the fight started — if the only evidence he has to support a claim of self-defense is his own testimony, and if his own testimony is shown to be false and misleading, then he has no self-defense claim to proceed on.
3. The prosecution is confident that it can prove that the voice yelling “help” was Trayvon; or, failing that, they can prove it was not Zimmerman. This point is similar to point 2 above, but, if shown, it would be vitally important for the prosecution for several reasons, all of which would go a long way to helping the state make its case. If it can be proven to be someone other than Zimmerman yelling for help, then (a) Zimmerman loses his best chance of objectively proving a subjective state of mind at the time of the killing that supports his defense; (b) Zimmerman is shown to have had the presence of mind to, within ten minutes of the killing, tell an untruthful cover story, suggesting a depraved state of mind; and (c) it strongly suggests that Zimmerman had full awareness at the time of the killing that Trayvon’s screams for help were the screams of someone who was scared for the life and wants to end an altercation, not the screams of someone who is trying to kill someone else; in other words, Zimmerman subjectively knew, even during the fight, that Trayvon’s yells were not the yells of an equal participant in the fight.
4. The prosecution does not have any evidentiary aces up its sleeve; instead, the state believes from the circumstances surrounding Trayvon’s death they can prove Zimmerman was acting dangerously, unreasonably, and with no regard for human life. The affidavit of probable cause would help support this theory, in that every allegation that has been added in to meet the depraved mind element is based only on facts of the case that have been widely reported in the media, i.e., Zimmerman perceived a threat where the objectively was none, as it was just a kid walking home from the 7/11; Zimmerman’s state of mind was that he was enraged about “those assholes” and “those fucking [punks/coons/goons]“; Zimmerman then disobeyed police dispatch instructions not to pursue Trayvon, presumably due to his apparently deep-felt desire to make sure this particular asshole didn’t get away. So, it’s possible that the prosecution thinks that alone would be enough to convict Zimmerman for a depraved mind killing. However, I am reluctant to draw too many conclusions from what is revealed in such initial documents. The prosecution is only trying to release enough of their case to actually meet the probable cause standard in these types of affidavits, while holding back enough to put them in better position for the trial. As such, the prosecutor here may have simply decided to base a case for probable cause of a depraved mind base solely on the publicly available evidence.

Zimmerman’s Available Defenses

For either a murder charge or a manslaughter charge, Zimmerman still has a few possible justifications and excuses that he could raise in his defense. Florida law has a half-dozen or so provisions which provide either a complete defense to a homicide charge, or have the effect of downgrading a homicide charge, in cases where the defendant was either acting in self-defense or had suffered sufficient provocation. The most basic is the provision providing that use of deadly force is not unlawful when used to resist an attempt to murder or to commit a felony against the one who used deadly force:

Fla. Stat. Ann. § 782.02. Justifiable use of deadly force.—

The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her[.]

Although Florida does have an excusable homicide statute as well, it is not available here, because it may not be invoked where “any dangerous weapon [is] used” in the killing — in applies more to situations where two parties tussle, and, by unlikely accident, a fatal injury that could not have been reasonably predicted occurs:

Fla. Stat. Ann. § 782.03. Excusable homicide.—

Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

There is also a provision providing for “unnecessary” killings done to stop an unlawful act. This section does not define any new substantive crime, but rather is an exculpatory provision that serves to reduce what would otherwise be a murder charge to one of manslaughter, for any homicide committed while resisting victim’s attempt to perpetrate unlawful act:

Fla. Stat. Ann. § 782.11. Unnecessary killing to prevent unlawful act.—

Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree[.]

It presumably would not apply here, as the State’s theory of the case is that Trayvon’s struggle with Zimmerman was done in self-defense — which is not itself an “unlawful act.”

Finally, we have the infamous “stand your ground” law, which provides that:

Fla. Stat. Ann. § 776.012.—

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if … [h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

The distinction between § 776.012 and § 782.02 is simply that the former does not incorporate an examination of whether or not the defendant had the ability to avoid the encounter with no danger to himself or others. As has been discussed elsewhere, the technical language of the Stand Your Ground law is not of such great relevance to the Zimmerman case — but the presumptions and assumptions created by the law seem to have effected the initial prosecutor’s decision not to bring a charge.

But the “stand your ground” law won’t protect Zimmerman if it can be shown he was simply fending off a few punches from an unarmed teenager. The provision specifically notes that deadly force is not permitted merely to stop another’s use of unlawful force; you can’t shoot someone simply because you’re getting punched and decide you don’t like the way the fight is going. And the use of deadly force only because justified when “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” An unreasonable belief does not provide any right of self-defense, no matter how subjectively real the belief was.  The fear of imminent death must be based on objective facts “such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.” Ammons v. State, 88 Fla. 444, 454, 102 So. 642, 645 (1924).

If Zimmerman was not actually getting his head deliberately bashed into concrete — which, from the lack of any genuine injuries and improbability of that scenario, would seem to be the case — then Zimmerman was not justified in using force against Trayvon, no matter what his actual beliefs were.   Zimmerman may have had the adrenaline rushing through his blood, may have perceived his opponent as a murderous thug gang-member rather than a skinny teenager because of the presence of a hoody; it’s possible Zimmerman really did think that a wrestling match on the grass with a skinny teenager somehow put his life in mortal danger. But his hyperactive threat perception system does not excuse him.

An individual’s right to life is not contingent upon maintaining a constant impression of harmless frailty –  “men do not hold their lives at the mercy of excessive caution or unreasoning fear of others.” Ammons, 88 Fla. 444 (1924). Even if Zimmerman truly believed he was somehow in danger for his life, he was not thereby granted permission to kill Trayvon if his fears were the product of an unreasonable mind. And there is plenty to suggest Zimmerman was in fact acting out of excessive caution and unreasoning fear that night. His hyperactive vigilance, his willingness to see a boy returning home from a candy run to the store as a grave threat to his neighborhood, his professed fear for his life due to a tussle with an unarmed boy that he outweighed — if the jury finds from Zimmerman’s behavior that his fears were unreasonable, and that his fear for his life due to a couple bumps on the grass was not prudent, then the killing is not justifiable as self-defense.

Moreover, even the “stand your ground” law imposes a duty to retreat in cases where the defendant has caused the fight, even if he later finds himself on the losing end of it:

Fla. Stat. Ann. § 776.041. Use of force by aggressor.—

The justification described in the preceding sections of this chapter is not available to a person who… [i]nitially provokes the use of force against himself or herself, unless [s]uch force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant[.] (emphasis added)

If Zimmerman instigated the encounter, then, even assuming he could somehow conclusively prove that Trayvon was in fact trying to wrestle Zimmerman’s gun away from him, that still won’t necessarily provide an absolute defense to the killing. Zimmerman was the one who chose to arm himself while pursuing a teenager who was rightfully in the neighborhood and doing nothing wrong; Zimmerman was the one who chose to stand outside of his vehicle looking for the kid, even when he was told not to do so by police dispatch; Zimmerman was the one who created a situation where, if a shoving match occurred between him and Trayvon, he could then argue that the fact he was armed made an unarmed boy a potentially lethal threat that put Zimmerman in fear of his life, because Zimmerman knew he had a gun that the boy could theoretically steal. Because “[a] killing is not justifiable or excusable if the defendant brought about the necessity therefor through his own wrongful act or without being reasonably free from fault in provoking the difficulty in which the killing occurred.” Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Ballard v. State, 31 Fla. 266, 12 So. 865; Padgett v. State, 40 Fla. 451, 24 So. 145.

It is arguable that regardless of who threw the first punch, Zimmerman provoked the confrontation by, while armed with a gun, recklessly hunting down an innocent neighbor. Zimmerman could have easily avoided any confrontation with Trayvon — Zimmerman himself admits that the kid ran away from him when he first saw Zimmerman, trying to escape. If Zimmerman had not pursued Trayvon, and if Zimmerman had not brought a gun, thereby inserting the possibility of deadly force into the equation where previously there had been none, then Trayvon would be alive today, regardless of who shoved who first:

“A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable.  One instance is where he has brought about the necessity without being reasonably free from fault.  Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.”  Ballard v. State.

Will Zimmerman Have to Take the Witness Stand to Claim Self-Defense?

Perhaps the most interesting aspect of Zimmerman’s possible claim of self-defense is that, in order to raise it, Zimmerman may very well be forced to take the stand in his own defense. As previous Florida case law has held, “in order to be entitled to instruction on self-defense, there must be some evidence that the defendant acted out of self-defense. … In the present case, there is no evidence in the record that defendant shot her husband in self-defense. The defendant and her husband were the only witnesses to the shooting and the defendant did not testify.” Smiley v. State, 395 So. 2d 235, 236-37 (Fla. Dist. Ct. App. 1981). Getting Zimmerman on the stand would blow open up a huge new angle of this case, and would give the State an invaluable opportunity to meet its burden of proof. If the State gets to cross-examine Zimmerman, it will have the opportunity to discredit his story beyond any reasonable doubt — something the state is unlikely to be able to do based on an abstract and vague encounter in the dark between two individuals.

I am not a criminal attorney by any means, so this analysis should be taken with a grain of salt. But, from a quick read of Florida law, it seems like Zimmerman’s only route of guaranteeing that a self-defense instruction is made available to the jury is by providing his testimony on why self-defense was necessary. Zimmerman will likely not be able to raise a defense to the murder charge based solely his statements to police that it was so — for one thing, much of the second-hand reporting of what Zimmerman said will likely be inadmissible hearsay, leaving Zimmerman with few alternative routes for presenting evidence of his self-defense claim. And the hearsay exceptions that are likely to apply in this situation are stacked in favor of admitting statements tending to show his guilt, not exculpate him. When a defendant seeks to introduce his own out-of-court exculpatory statement for the truth of the matter stated, it is inadmissible hearsay. See, e.g., Ehrhardt, Florida Evidence § 801.3 (1998); Lott v. State, 695 So.2d 1239 (Fla.1997); Logan v. State, 511 So.2d 442 (Fla. 5th DCA 1987); Fagan v. State, 425 So.2d 214 (Fla. 4th DCA 1983).  So although Zimmerman has, apparently, given some details of the encounter to the police, without his supporting testimony on the stand, that alone probably will not be sufficient to get him a jury instruction on the self-defense claim:

“[W]e conclude that the trial court correctly refused to instruct the jury on self-defense because, simply stated, there was insufficient evidence adduced below to support such an instruction. The sole evidence at trial on the issue was the testimony of a police detective who stated that the defendant made an oral statement to the police that, “ ‘I stabbed the victim in self-defense.’ That he was assaulted by group of males.” Plainly, this evidence was nothing more than an assertion of self-defense by the defendant and in no way explained the exact circumstances upon which the assertion was based. This being so, the trial court was not required to instruct the jury on self-defense based solely on the defendant’s bald assertion of self-defense.” Gaffney v. State, 742 So. 2d 358, 362 (Fla. Dist. Ct. App. 1999).

At the same time, if Zimmerman does testify, it means that the State will have to either produce a contradicting witness, or diminish any credibility in Zimmerman’s own claims, in order to prevent a successful claim of self-defense:

“The defendant’s direct testimony concerning the victim’s threats and his menacing approach together with the defendant’s assertion that he was in fear of his life made out a prima facie case of self defense[]. The state presented no evidence to rebut the defendant’s direct testimony that he acted in self defense nor was it able to diminish his testimony on cross-examination.” Diaz v. State, 387 So. 2d 978, 980 (Fla. Dist. Ct. App. 1980).

So maybe that’s what the prosecution is banking on. If Zimmerman does not claim self-defense, then the State has already met all the elements necessary to convict him of manslaughter, and has a good shot at proving second degree murder to boot. But if Zimmerman does want to claim self-defense, he may have to take the witness stand to do so — and perhaps the prosecution is confident that, if it comes to that, they can impeach his testimony into oblivion.

-Susan

I completely agree that law schools–or at least the one I went to, GW Law–don’t give much attention to the post-conviction aspect of habeas review. I really have no idea why that is. Perhaps it’s because so many of the post-conviction cases are (at least in practice) entirely lacking in merit, or maybe it’s because the kind of student who attends a so-called “national” law student typically does not aspire to do post-conviction work. (An exception might be those who want to be prosecutors, but in my experience even prosecutors view post-conviction work as bitter medicine that must be tolerated to get to the “good” work.)

Still, I disagree with Professor Kovarsky’s suggestion that this “bifurcation” explains the inattention federal courts seem to give to post-conviction habeas cases. To some extent, I think the fact that the executive detention cases get a more thorough treatment stems from their novelty; the legal issues are really unsettled and judges can get excited about tackling some difficult questions. But more importantly, I think the difference comes from what’s actually being “reviewed” in each of the two types of cases.

In an executive detention case, a court essentially reviews the executive’s assurance that an individual is dangerous or has otherwise merited detention under the laws of war. Judges routinely question the choices made by the legislative and executive branches, and some judges particularly approach executive assurances with a heavy degree of skepticism. These cases are the bread-and-butter “constitutionality review” cases that federal courts have loved for hundreds of years.  See Marbury v. Madison, 515 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”)

In the post-conviction context, on the other hand, federal judges are reviewing the decision of a state court judge (and usually a state court jury). In contrast to the executive and legislative branches, these state courts are supposed to be on equal footing with the federal courts when it comes to resolving legal questions. Moreover, federal judges are often intimately connected to the state courts they’re reviewing–many federal judges start their careers in state courts and maintain close connections there. Consequently, federal judges are likely less troubled by the decisions of their state court colleagues, a fact that’s reflected in the sometimes almost flippant treatment given to state post-conviction review.

In any event, I do think Professor Kovarsky is right in hinting that law schools should consider putting more emphasis on the post-conviction stuff, whether as part of a “unified theory” of habeas or otherwise. Post-conviction law has some really interesting stuff buried inside of it, so professors shouldn’t let the “hot” research trend take too much away from the time spent on tried-and-true post-conviction review.

-Michael

1. Sale or use of a traffic signal preemption transmitter (18 U.S.C. § 39):  It would be great to be able to have a magic device to get you all green lights on the way to work.  Unfortunately, it would not be great to go to federal prison for that magic device.

2. Transportation of water hyacinths (18 U.S.C. § 39):  Water hyacinths can produce pretty flowers, but they can also grow shockingly fast and clog up waterways.  Apparently, they’re so much of a problem that they can earn a six month prison sentence.  If only Congress had passed a statute like this for kudzu.

3. Use of aircraft or motor vehicles to hunt certain wild horses or burros (18 U.S.C. § 47(a)):  Who knew wild burros were a federally-protected class?

4. Variola virus (18 U.S.C. § 175c):  Federal law requires you to keep your smallpox to yourself.  Of course, this makes me wonder why there is not a similar statute for the even more frightening monkeypox.  (Monkeypox scares me more because of its primate-related name.)

5. Convict labor contracts (18 U.S.C. § 436):  If you’ve seen The Shawshank Redemption, you know that nothing good comes from prisoner labor schemes.

6. Troops at polls (18 U.S.C. § 592): I suppose this is a great idea given that nobody likes a military junta, but I wasn’t aware there was actually a law on the books keeping soldiers away from our polling places.

7. Theft of livestock (18 U.S.C. § 667): As far as I know, you can steal $10,000 from a jewelry store and not face a federal prison sentence.  If, however, you steal $10,000 of cattle (or, as I like to call them, soon-to-be-steaks), you could get locked up for five years in a federal slammer.  I guess our nation really loves our livestock.

8. Improper use of the “Woodsy the Owl” character, Swiss Confederation coat of arms, or “Golden Eagle” insignia (18 U.S.C. §§ 711a, 708, 715): I don’t even know who Woodsy the Owl is, or what the Golden Eagle is.  But apparently, if you misuse them, you’re going to jail.  Same thing for the Swiss symbol.  These kinds of laws raise a lot of questions in my mind.  What are the implications of this law for Victorinox, makers of the Swiss army knife?  Can Swiss Miss get in trouble if she wrongfully displays her country’s flag?  Dear god, not Swiss Miss!!

9. Impersonation of 4-H Club members or agents (18 U.S.C. § 916): You can be fined $5,000 and get six months in jail for impersonating a 4-H member.  This only confirms my theory that all of the nation’s gold and alien bodies are actually stored at 4-H headquarters here in DC.

10. Misrepresentation of Indian produced goods and products (18 U.S.C. § 1159): Not only is it obnoxious to wrongfully call your junk “Native American made,” it’s also illegal.

11. Prostitution near military and naval establishments (18 U.S.C. § 1384): Prostitution is illegal everywhere in the U.S.  But it’s extra illegal if you’re trying to get lucky with some military men.

12. Corruption of seamen and confederating with pirates (18 U.S.C. § 1657): I’m not really sure I understand what this statute means, but it still makes me laugh.  I like to imagine somebody getting arrested for taking a seaman to his first strip club, or giving a seaman his first drink of alcohol — but I assume they’re referring to a different type of corruption.

13. Theft of newspapers (18 U.S.C. § 1710): This statute only applies to postal carriers.  That’s unfortunate, because somebody in my building kept stealing my Economist and Washington Post.  It would have been sweet justice to make an anonymous tip and get a federal indictment lodged against them.

14. Improper wearing of a postal uniform (18 U.S.C. § 1730): I don’t know why anyone would want to wear a postal uniform, but apparently you can’t live your dream if that’s the case for you.  This law makes me think that everyone on Project Runway committed a federal crime a few years ago.

15. Transportation or importation of prison-made goods (18 U.S.C. § 1761): Nothing says love like a prison-made plastic toothbrush shiv.  But you can’t mail one to mom this Mother’s Day — that’s illegal.

16. Transportation of dentures (18 U.S.C. § 1821): Gross.  Just gross.  I think they should expand this law to include any tooth and mouth related products.

17. False weather reports (18 U.S.C. § 2074): The statute requires one to knowingly produce a false weather report in order to break the law.  Otherwise, there would be hundreds of arrests of local weathermen each year.

18. Shanghaiing sailors (18 U.S.C. § 2194): I guess this statute was passed to address  a real problem in the Pacific Northwest in the early 1900s.   It seems funny to me that we still have this law on the books, given that the problem of “shanghaiing” largely ended with the advent of the steam engine.

-Michael

As The Seattle Times explained, ”[t]he concept of clemency dates to Babylonian times, acting as a safety valve for criminal sentences that kings believed were unjust, or a means to show their power to be merciful.  Without clemency, Alexander Hamilton wrote, ‘justice would wear a countenance too sanguinary and cruel.’”  The Framers embraced the right of clemency in Article II, Section 2 of the Constitution, which provides that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Thus, the President may grant clemency in any situation involving a federal crime (which would, interestingly, include any crime here in DC).  The pardon (like other forms of clemency, such as commutation) is meant to address the grey areas of the law while providing a degree of relief to those who have paid their debt and want their rights back.

The president’s clemency power, however, does not give the criminal complete absolution; it carries an imputation of guilt, and the acceptance of a pardon is tantamount to a confession.  See Burdick v. United States, 236 U.S. 76 (1915).  Moreover, pardons do not often allow convicts to escape from prison time, as they’re only given to those [(update: under the Guidelines, at least)] who have served their prison terms and proven they can live a productive life.  It’s also unlikely to go to anyone who committed a violent crime.  (See, for example, Bush’s pardons.)

To be honest, even though the system is relatively rigid and doesn’t leave murderers wandering the streets or anything, I don’t really see the de facto disappearance of the pardon as a bad thing.  Given their scarcity (even before the recent drought), pardons strike me as an arbitrary act of executive grace that is too de minimis to have any effect on the system as a whole.  It also seems to be an archaic holdover from a time when the king had absolute power — but that absolute power concept is contrary to the American concept of a more limited chief executive.  The pardon abrogates the finding of the jury who convicted the pardoned by stripping the verdict of its punitive weight.  And it appears prone to substantial abuse.

So, here’s hoping the drought continues.

-Michael

The answer: nope.  Apparently, a D.C. fellow had a bit too much fun one night, caused a commotion on the street, and then tried to run away from police on his bike.  He succeeded only in almost running over a small child and then falling over.  The court found Mr. Life-of-the-Party could be convicted of a DUI, while engaging in a somewhat disingenuous discussion about the public safety dangers of drunken biking along the way.

The court found that the definition of “vehicle” in the DUI statute should be broadly read, and that a bike is a vehicle because it is an “appliance” mounted on two wheels that can “move over a ‘highway.’”  My big take-away question:  will folks in wheelchairs be able to get their drink on anymore?

-Michael

As much as we might prefer otherwise, American standards of justice do not apply around the world.  Indeed, it is difficult to establish any principles of due process and justice that apply with equal weight throughout the world.  (Although Article 14 of the International Covenant on Civil and Political Rights is an attempt to define such rights, even that list is controversial and sometimes ambiguous.)  Thus, Americans cannot expect to enjoy the protections of “American” due process everywhere they go; travel should be accompanied by a recognition that one leaves the protective sphere of America and enters places where the protections might be minimal at best. 

Therefore, the government of the United States should probably only get involved in foreign trials in two instances: (1) where a trial violates well-established principles of international law or (2) where a trial violates the laws of the country where the trial is held.  Even in the second instance, however, involvement should be limited, as a nation should be permitted to interpret its own laws and administer its own system in the manner of its choosing.  Most of the critiques of the Knox trial I have seen don’t implicate either situation, however.  Instead, they are simple attacks on the “weight of the evidence” or the “bias of the prosecutor.”  I don’t think that merits American intervention.

These principles may seem disquieting in a situation like the Amanda Knox trial.  How can we really allow such an “injustice” to proceed?  Nevertheless, as Susan noted, our American system of justice is not that receptive to outside influences.  See, e.g., the Medellin situation involving Texas’ rejection of an ICJ order and international condemnation of our death penalty in general.  If we wish to construct our system of justice in a sphere free from outside influence, we should treat other systems in the same manner.

Lastly, I would question the notion of “American” justice.  It almost goes without saying that American prosecutors are often imperfect instruments of justice, and American juries are often motivated by impure considerations (e.g., racism, a hatred of the poor, etc.)  Outrages upon justice happen over here too, perhaps more often than we care to think about.  I think there’s even some possibility that Amanda Knox would have been found guilty in a stateside trial, given her conflicting accounts and strange behavior following her roommate’s death.  True, the prosecutor’s case theory probably would not have involved any satanic orgies, but in the end that doesn’t matter that much.  And had Amanda been tried in her home state of Washington, she would have been subject to the death penalty (unlike in Italy, where the death penalty is not an option).

As I said, this is not a happy case at all.  But I think it’s important to look past our anger and ask if we actually have a principled leg to stand on before we start taking diplomatic measures against Italy.

-Michael

[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.  Second, “delaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.”  Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.

[snip]

One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.

(citations omitted)

Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument.  I was unaware of any constitutional support for the argument then.  And I am unaware of any support for it now.  There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

[snip]

[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”

[snip]

At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature.  There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.”  I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.

(citations omitted)

This is a great articulation of both sides of the argument.  Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.

-Michael

As noted over at Opinio Juris, Colonel Sanders recently breached security at the United Nations and gained access to a number of restricted areas.  Sanders (ok, technically an actor playing Sanders) was even able to pose for a picture with new UN General Assembly president Ali Treki.  There’s no suggestion that the Colonel was engaged in any malicious activity like espionage (although he is very good at keeping secrets).  Even so, one might argue that he violated international law when he started sneaking around the UN complex.

The United Nations complex and the area surrounding it is called the “headquarters district.”  Under Article III, Section 7(a) of the Headquarters Agreement governing the district, that area is “under the control and authority of the United Nations as provided in the agreement.”   Admittedly, the same agreement also provides (in Article III, Section 7(c)):

Except as otherwise provided in this agreement or in the General Convention, the federal, state, and local courts of the United States shall have jurisdiction over acts done and transactions taking place in the headquarters district as provided in applicable federal, state, and local laws.

This provision suggests that Sanders might only have to worry about anything more than a common trespass conviction.  But note that the provision does not vest exclusive jurisdiction in U.S. courts.  Thus, the United Nations may argue that, given the international character of the headquarters district, Colonel Sanders might also be subject to international liability for sneaking into the “inviolable” district.  See Art. III, Sec. 9. 

Still, there are other obstacles that would have to be overcome before we could see the Colonel in the dock at any international court.  First, what international crime did he commit?  Strangely, there would not seem to be any well-established notion of “international trespass” on internationally-held lands.  (I say strangely only because it would seem to be a crime of international concern if other extraterritorial outposts were trespassed upon, like CERN or NATO headquarters.)  It would also be extreme to resort to any prosecution of the basis of international “aggression.”  Lacking a crime, there can be no trial.  Second, where could the Colonel be tried?  The International Criminal Court certainly would not have jurisdiction.  An ad hoc tribunal would be out of the question.  Third, it is unclear whether the United Nations could independently impose any penalty for any violation of “international law” under Section 10 of the Headquarters Agreement:

Persons who violate such regulations [of the United Nations] shall be subject to other penalties or to detention under arrest only in accordance with the provision of such laws or regulations as may be adopted by the appropriate American authorities.

In sum, it looks like the Colonel will escape international prosecution.  Still, I think there’s some chance that KFC’s new “grilled chicken” is an international human rights violation in the making.

-Michael

He is accused of operating a Ponzi scheme involving investments in legal settlements. Investors were asked to make an upfront payment, supposedly to a lawsuit plaintiff expected a series of payments over a period of months or years. Later, the investors were told, they would get back the full settlement amount. “But it was all a scam,” according to the Miami Herald. “Federal prosecutors said there were no plaintiffs, no defendants, no lawsuits.”

To get a sense of what a weirdo this guy is, check out this video tour of his office.

-Michael

P.S. What’s with all the Ponzi schemes lately?

“Sex offenders are the most reviled people in society. . . . They’re one step above terrorists; there’s no political downside to cracking down on these folks.”

Unfortunately, as the Economist explains, mounting evidence suggests that such laws aren’t even effective. 

Despite those concerns, Congress stepped up federal sex offender laws in the 2006 Adam Walsh Child Protection and Safety Act.  Among other things, the Act authorizes civil committment of any individual currently incarcerated in the federal system, even after the expiration of their prison term.  The Act only requires that such individuals be found “sexually dangerous” in a commitment hearing, even if the inmate has not previously been convicted of any sex-related crime.  Once it is established by “clear and convincing evidence” that an individual is “sexually dangerous,” they may be confined indefinitely. See 18 U.S.C. 4247.

The Supreme Court is about to consider the constitutionality of these civil committment procedures in United States v. Comstock.  The interesting thing about the case is the way in which it has reframed the debate: the debate over such laws is not “pro-sex-offender” vs. “anti-sex-offender” (a ludicrous debate).  Instead, the libertarians have gotten involved, arguing that the Act overstepped congressional powers [PDF]. 

I note this case principally to observe that it is one of the few situations where I’m happy to see a little judicial activism.  If ever there was a situation where an immensely unpopular minority was suffering from the “violence of the majority,” this is it.  These individuals certainly deserve punishment of the highest degree, but my hope is that the judiciary will approach this problem a bit more objectively than legislators have.

-Michael