The Balanced Approach


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Murder, Death & Ethics

From the film "Dead Man Walking"

Crimes is often predicted and I am updating former blog posts in light of yesterday night’s release of tested topics.  It could be a homicide question, or a hybrid homicide and criminal procedure question, or something totally new such as an 8th amendment or a 6th amendment centered question. I would also suggest that it could be a crossover with Professional Responsibility or at least implicates any potential PR question.  Below is a homicide approach as well as some basic tips on the death penalty.

Homicide approach

Answer and organize according to the call of the question. Make sure you know the difference between statutory homicide (1st and 2nd degree as well as voluntary/involuntary manslaughter) and common law murder. Common law murder is where the law for murder was born. But most states and the feds have their own criminal statute/penal code.

So, under modern statutory law all murder (intentional killing of another) is at least second degree murder, unless you can ratchet up to first degree or ratchet down to manslaughter. If the call asks you whether the defendant can be convicted of 1st degree murder (specific intent) then you want to IRAC (1) premeditation and deliberation and/or (2) felony murder. Felony murder in the majority of states and the federal statute has been bumped up to first degree under the doctrine of transferred intent. This also allows for prosecutors to seek the death penalty in such cases.

If it also asks you for 2nd degree murder (it will), then you discuss whether the killing was done with a general intent called “malice aforethought.”

If there are any facts that show the defendant was in a “fit of rage” or in the “heat of passion” then you would then also IRAC voluntary manslaughter, which applies if a reasonable person would have been provoked and whether a reasonable person would not have had time to cool off. Discuss voluntary manslaughter even if you think it’s not a perfect fit, so long as the facts trigger it.

A good question and answer to review for organization and format is on my “Assignment” portal and is titled Dan.Art.Bert.

8th amendment and the Death Penalty:

1. It's not unconstitutional under the 8th, but there must be a statutory scheme that gives the judge or jury discretion to impose the death sentence – it cannot be automatic after a guilty verdict.  The jury must consider mitigating circumstances of the defendant's life before deciding on the sentence. 

2. If an attorney does not present a mitigation defense during the sentencing phase of the trial, it is ineffective assistance (and violation of professional responsibility rules).  Review the ineffective assistance of counsel. 

3. During jury selection on a death case, if a juror opposes the death penalty, she is dismissed for cause.  Conversely, if the juror says they would automatically sentence to death upon conviction, she can be dismissed for cause also. But if they favor it, or have some hesitation about it, but believe in it and believe they could consider it as a possible sentence, they are eligible.

4. Under the 6th amendment in death cases, “[A criminal] defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experience-based view” is that conceding guilt “offers the defendant the best chance to avoid the death penalty.” The Sixth Amendment-secured autonomy has been violated, and is not subject to harmless error review. (McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

Note that this issue could be an essay crossover with professional responsibility as well, duty to communicate. Attorneys must relate information about case progress on periodic basis and ensure client’s can make informed decisions. While the lawyer is empowered with strategic decisions, the client has the right to make the substantive decisions. Here, it seems that this decision while strategic, is more substantive and structural so the 6th amendment requires the client make this ultimate call.

Amy Parekh