There is little doubt that a defendant has a constitutional right to present a defense, and that among the defenses available are duress, that a defendant was forced to engage in the conduct giving rise to the crime. But that choice isn’t available when the crime is murder as a matter of public policy. But what about the variation of the crime grounded in “depraved heart” murder?
Theresa M. Gafken was convicted following a jury trial in the St. Clair Circuit Court of second-degree murder, MCL 750.317. Defendant drove her vehicle at speeds exceeding 100 miles per hour while fleeing the police; she ran a red light and collided with other vehicles, killing one person and severely injuring several others. Defendant was originally charged with one count of second-degree murder and two counts of operating a vehicle while intoxicated (OWI), MCL 257.625(5)(a).
Before trial, defendant moved to be allowed to testify that she intended to pull over when the police officer activated his overhead lights and that she did not do so because the passenger sitting behind her, Michael Scandalito, thrust a gun into her ribs and threatened to kill her if she stopped the car. In addition, defendant wanted to testify that Scandalito was on parole and being sought for a parole violation and that he had committed aggravated assault against his mother while using drugs.
The trial court refused to allow Gafken to offer a common law duress defense.
The defense of duress does not negate any offense element but, rather, excuses the offense. The rationale of the defense of duress is that, for reasons of social policy, it is better that a person, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid a greater evil threatened by another person. Historically, duress was not permitted as an affirmative defense to murder.
The majority’s rationale was straightforward, based upon the historical rationale for refusing to allow a defendant to use duress, the threatened loss of their life, to justify the murder of another.
[T]he historical rationale that a person should die themselves rather than murder an innocent person does not apply to felony murder because the individual in the felony-murder context faces a choice between whether to spare their own life or aid in a lesser felony (that is, one that does not include as an element the killing of an innocent person). The historical rationale is also absent when depraved-heart murder is charged because depraved-heart murder does not present the choice between sparing one’s own life or taking the life of an innocent; rather, the choice presented is to lose one’s life or commit a
lesser felony than intentional murder.
The dissent rejected the distinction between intentional murder and depraved-heart murder based upon the implicit malice in engaging in conduct with a high probability of death, even if not the intent.
The malice necessary for depraved-heart murder—an implied malice arising from an actor’s disregard for the high risk of death posed by the actor’s conduct—has long been viewed as equivalent to an express malice consisting of an intent to kill. Malice is a holistic concept that, although it can be classed as express or implied, is not subject to division into different degrees of culpability based on whether the killing was intentional or unintentional. The presence of malice precludes any legal excuse, including duress. Additionally, the inclusion of unintentional killings in the category of murder reflects common moral intuitions and helps explain why depraved-heart murder is distinct from felony murder in respect to the duress defense. Finally, the majority’s argument that depraved-heart murder only creates a probability of killing an innocent as opposed to presenting a defendant with a choice to kill or be killed—in other words, that creating the risk of death is less blameworthy than intending to cause death—was flawed; the flaw in this argument was its underlying assumption that depraved-heart murder is materially distinct from intentional murder because the underlying conduct involves only the risk of death, whereas (presumably) the intentional murder presents the certainty of death.
is there a material difference between shooting into a crowd with no intent to specifically kill any individual versus doing so with the intent to murder one person? The typical example of depraved-heart murder (or depraved indifference, as it’s called in New York) might well produce a different result than the facts of the Gafken case not because the defense of duress should or should not be applicable, but because Gafken was overcharged with murder.
Fleeing from police, and even when running red light in the process, is not tantamount to shooting a gun into a crowd. The risks are entirely different. It’s not that flight isn’t extremely risky. It is. It’s not that flight isn’t a bad thing to do. It is. But flight doesn’t rise to the level of a near certainty of causing someone’s death. Indeed, most of the time no one is harmed other than the defendant, who gets a beating if not shot for his or her intransigence.
Had the defendant been charged with manslaughter based upon reckless conduct, there would be no question but that the common law defense of duress applied. And there is no serious argument that flight wasn’t reckless. Because the case was overcharged (and over convicted), the court was compelled to address the defense in the context of depraved heart murder under facts that fall short of compelling, that Gafken should have chosen the certainty of her being killed by passenger Scandalito rather than flee at a high rate of speed.
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