Above, And Below, The Law

Law, Politics & Current Events

As I write this, I hear many sirens. Sounds like the LAPD is rolling out patrol cars to the vicinity of the CCB, where a jury just found former Oakland Police Officer Johannes Mehserle guilty of involuntary manslaughter, but not guilty of second-degree murder or voluntary manslaughter, for shooting unarmed, prone, handcuffed Oscar Grant in the back. Mehserle claims that he mistakenly grabbed his Glock rather than a taser.

As I write this, it is still possible there will be riots. There's a lot of anger about the case, and about the verdict. A quick Google or Twitter search will show it to you right now. But I wonder: how many people who are angry know the difference between second degree murder, voluntary manslaughter, and involuntary manslaughter?

We criticize police misconduct quite a bit here at Popehat. But one of the bulwarks against police abuse — the thin black line, if you will — is the rule of law and the presumption of innocence. I didn't watch the trial or listen to the evidence. But I do happen to know the relevant law.

In California, under Penal Code Sections 187 through 189, second degree murder is just murder without a statutory aggravating factor that could bump it to first degree.

The relevant portions of the California jury instruction defining murder are as follows:

The defendant is charged [in Count ] with murder [in violation of Penal Code section 187].

To prove that the defendant is guilty of this crime, the People must prove that:

1 The defendant committed an act that caused the death of (another person/ [or] a fetus);
[AND]

2 When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

[AND

3 (He/She) killed without lawful (excuse/[or] justification).]

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1 (He/She) intentionally committed an act;

2 The natural and probable consequences of the act were dangerous to human life;

3 At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;

AND

4 (He/She) deliberately acted with conscious disregard for (human/ [or] fetal) life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

Voluntary and involuntary manslaughter are lesser included offenses of murder.

Here's the relevant part of the California jury instruction on Voluntary Manslaughter on a "heat of passion" theory:

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

The defendant killed someone because of a sudden quarrel or in the heat of passion if:

1 The defendant was provoked;

2 As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment;

AND

3 The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.

[If enough time passed between the provocation and the killing for a person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.

Here's the relevant part of the California jury instruction on Voluntary Manslaughter on a imperfect self-defense theory:

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-defense/ [or] imperfect defense of another).

If you conclude the defendant acted in complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/ [or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another) depends on whether the defendant's belief in the need to use deadly force was reasonable.

The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if:

1 The defendant actually believed that (he/she/ [or] someone else/ ) was in imminent danger of being killed or suffering great bodily injury;

AND

2 The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;
BUT

3 At least one of those beliefs was unreasonable.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.

In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.

[If you find that threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant's beliefs.]

[If you find that the defendant knew that had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs.]

[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with , you may consider that threat in evaluating the defendant's beliefs.]

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in (imperfect self-defense/ [or] imperfect defense of another). If the People have not met this burden, you must find the defendant not guilty of murder.

Here's the relevant part of the California jury instruction on Involuntary Manslaughter:

When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

The defendant committed involuntary manslaughter if:

1 The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);

AND

2 The defendant's acts unlawfully caused the death of another person.

[Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1 He or she acts in a reckless way that creates a high risk of death or great bodily injury;

AND

2 A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.]

Based on these, if a jury believed that Johannes Mehserle, in the heat of the moment, pulled the wrong weapon and fired it, that scenario seems to fit involuntary manslaughter. Grabbing the wrong weapon and firing displays, at least, criminal negligence. But a jury might have decided that there was not proof beyond a reasonable doubt of conscious disregard for human life (as required for implied malice, necessary to prove second degree murder).

I didn't see the evidence. I don't know. But I'm not yet ready to decry this as a travesty of justice. Is it terrible that a police officer shot an unarmed, cuffed man in the back? Yes. Do I suspect that there was some culpability? Absolutely. But it makes no sense to destroy the rule of law in order to save it. A police officer, like any other criminal defendant, enjoys the presumption of innocence.

So, despite my concern about police misconduct and abuse of power, I'm not ready to jump on the "travesty" bandwagon, without seeing more.

Last 5 posts by Ken White

25 Comments

25 Comments

  1. Dwight Brown  •  Jul 8, 2010 @5:57 pm

    Ken:

    You are one of nature's noble men. Thank you for this post.

    I am wondering about something that is not specifically relevant to the Mehserle trial, just based on my reading of the jury instruction on murder: could someone who kills another individual while driving drunk be prosecuted for murder in California?

    It seems to me that the jury instruction could sustain this: clearly, a death would have been caused, and without lawful justification. As for malice aforethought, I think one could argue that the implied malice standard is met: intentional commission of the act (DWI), natural and probable consequences dangerous to human life, and knowledge that the act was dangerous to human life. The only thing that I think there's wiggle room on is deliberate disregard, and I don't know that I see much wiggle room there.

    (Here in Texas, there have been some murder prosecutions that I'm aware of for deaths caused in DWI accidents. However, to the best of my knowledge, all of those prosecutions have been based on the defendant having multiple DWI convictions; Three is the magic number that elevates DWI to felony status, and these prosecutions have all been based on deaths resulting from third or subsequent DWI offenses.)

    (If you think this is too far afield, Ken, I'll hold no grudges if you delete this comment.)

  2. John David Galt  •  Jul 8, 2010 @6:08 pm

    I'm sorry, I can't agree with this. The problem with giving a law enforcement officer the presumption of innocence is that the presumption of another person's innocence is also in play here, and the law enforcement officer's license to use force is conditioned on respecting that other person's presumption of innocence. No one with a badge should ever be excused un-called-for violent behavior because he/she is "only human." Or at the very least, the officer who is so excused should lose the badge forever.

  3. Ken  •  Jul 8, 2010 @6:10 pm

    The problem with giving a law enforcement officer the presumption of innocence is that the presumption of another person’s innocence is also in play here, and the law enforcement officer’s license to use force is conditioned on respecting that other person’s presumption of innocence.

    So it is your position that the presumption of innocence does not apply to police officers in excessive force prosecutions?

    What is the specific legal basis for that belief?

  4. Patrick  •  Jul 8, 2010 @6:17 pm

    To whom would you give the power to decide these matters, if not a jury Mr. Galt?

    Or at the very least, the officer who is so excused should lose the badge forever.

    Johannes Mesehrle is now a convicted criminal, who will go to prison. Believe it or not, involuntary manslaughter is considered a serious felony. As a felon Mesehrle has lost his badge forever.

    Mission accomplished.

  5. Ken  •  Jul 8, 2010 @6:18 pm

    To be technical, he resigned before he was tried.

    (To be hyper-technical, he is not convicted until sentenced.)

    But yes, he won't be wearing a badge again unless he overturns this on appeal.

  6. Patrick  •  Jul 8, 2010 @6:20 pm

    Shut up.

  7. Sam  •  Jul 8, 2010 @9:15 pm

    A BART (transit) cop committed this murder; not an Oakland Police Officer.

  8. Piper  •  Jul 8, 2010 @9:43 pm

    The verdict is probably the correct one, but it occurs to me that perhaps we should hold the officers we trust to use lethal force to a higher standard. Maybe that's just the pissed off piece of me, as my untrained eye didn't even see a reason for him to be drawing a Taser on Oscar. That kid should still be alive, and 2-4 years with time off for CA's overcrowded prisons seems like a travesty. Just one of justice and not the law.

  9. Piper  •  Jul 8, 2010 @10:17 pm

    5-14 with the Gun Enhancement is better. The press had been saying 2-4 years.

  10. RLMullen  •  Jul 8, 2010 @10:26 pm

    I have an issue with the following:
    "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment."

    Should we not hold trained law enforcement officers to a standard somewhat higher than "average disposition" when considering the 'heat of the moment' stipulation? Why would a jury even allow passion to override judgement when the defendant has been specifically trained to use rational judgement in the very situation where the crime occurred?

  11. Base of the Pillar  •  Jul 8, 2010 @11:30 pm

    Nothing says "Our community has been robbed of justice" like a pair of looted high tops.

  12. Greg Conen  •  Jul 9, 2010 @6:38 am

    What are the odds that a normal person would win on the "I meant to pull my taser" defense?

    Also, do we now get to sue the police department for failing to train it's police officers to distinguish between a gun and a taser?

  13. Patrick  •  Jul 9, 2010 @7:17 am

    The BART authority, as well as Alameda County, will be sued civilly if they haven't been already Greg. That case will in all likelihood settle for a substantial amount of money. Grant's family is represented by counsel, and yes, improper training will be an issue in the case.

    To name other infamous California cases where many perceived injustice in the criminal trial, both OJ Simpson and Rodney King had civil sequels which didn't go so well for the defense.

    The case will settle because the relevant NoCal authorities cannot suffer the political damage that a trial would inflict.

  14. Patrick  •  Jul 9, 2010 @7:53 am

    And Ken, I should point out that I absolutely think this case was a travesty, in that the true, and indisputable, facts are that ex-Officer Mehsehrle pulled his gun out in a moment of wrath and shot a defenseless man in the back. He meant to do it.

    I've seen the video. The idea that the defendant actually meant to pull his TASER, and in the heat of the moment failed to note the tactile difference, got his index finger around the trigger guard, and fired as a reflex, is absolutely ludicrous. One in a trillion. The idea that a hotheaded officer pulled and fired his gun in frustration at a wriggling suspect who'd been uncooperative and angered the cop by flaunting his authority? Utterly plausible.

    Because that's what happened.

    This was compromise verdict, among jurors who believed the cop guilty of voluntary manslaughter or murder, and slave-mentality jurors who refuse to believe that a cop is ever wrong about anything.

    I am more certain this is what happened than I am that Pluto has a moon called Charon, because the photographic evidence is better, and because I understand human nature far better than I understand the depths of space.

    Yet I accept Charon's existence, beyond a reasonable doubt.

  15. Ken  •  Jul 9, 2010 @8:57 am

    Patrick, I suspect that your disagreement is at least informed by what the law is, as opposed to gut-level instincts about what the law ought to be. That distinguishes it from most critiques.

    I think that society, and juries, cut cops far too much slack — both when they are testifying for the prosecution, and when they are defendants. But I also recognize that the test of a system is how it treats prosecution of despised people. In this context, this cop is such a despised person. Is Murder 2 (on the theory that he lost his cool and deliberately shot Grant, without provocation or belief in self-defense sufficient to reduce it to voluntary manslaughter) more plausible? Quite probably. But I am not ready to accuse the jury of a slave mentality, not having seen all the evidence myself.

  16. rustbelt  •  Jul 9, 2010 @9:42 am

    I actually agree with Mr. Galt here – is "I'm a police officer" a statutory defense against a criminal charge? If not, that information should not be admissible because it is prejudicial and leads to demonstrable dissimilarities in punishment for similar crimes. "Innocence" should not be available to a person acting under color of authority, because they are not acting as an individual but as an agent of the government. I realize this is not a current legal argument, but the the previous episodes of non-convict-able abuses by law enforcement (in the civil rights era) required federal statutes and fairly egregious breaches of well-understood law to remedy.

  17. Brandon  •  Jul 9, 2010 @9:49 am

    Does anyone honestly believe that he "accidentally" brandished and fired a deadly weapon?

  18. Patrick  •  Jul 9, 2010 @10:27 am

    Ken, I am because I won't see the evidence, and I throw around baseless accusations all the time:

    I accused these officers of perjury and obstruction of justice, with no video. How am I to know they didn't perceive a rickety wooden staircase in the heat of a contested arrest?

    I accused this officer of wanton cruelty to animals, not knowing, in fact, whether the dog was an all-but-rabid beast which needed to be put down for the benefit of society.

    And so on and so forth. In this post, I took the word of a political nutcase against honest, upstanding law enforcement officers, merely because he had audiotape, not videotape.

    I'll note that you've taken similar stances, on less evidence, against law enforcement officers who (based on the the hearsay evidence you presented in your post) it seemed clear to me were criminals.

    Let me tell you what I believe is at work in your assessment of the case. This is a hotly political case, which has already produced riots. As a concerned citizen of California, certainly better informed than most about human nature, the law, and the actual impossibility of knowing another's thoughts, you take a commendable stance against a rush to criticism or judgment, and also wish to inform others of what the law actually is. You recognize that most jurors are conscientious people, that this was a tortuous decision, and you want people to know that. All of that I commend and agree with.

    For all that, if this had happened in North Carolina, you'd be on the side of the fence I stand on now, and I'd be the one cautioning care and informing people of the law.

    We're of course commenting on probabilities, but I've seen enough to have a strong opinion, strong enough that I'm willing to say this officer committed voluntary manslaughter at the least. As a disinterested outsider, I'm willing to say so.

    I also believe, beyond a reasonable doubt, that OJ Simpson murdered his ex-wife and a bystander. And I believe that officers in the Rodney King case used excessive force and willfully stood by while others brutalized the man. I base my beliefs primarily on what I saw on television, interpolated through the lens of experience, because I wasn't in either courtroom.

    For what it's worth, and taking a page from my own state's playbook, I believe, beyond a reasonable doubt, that though Michael Nifong was never charged with obstruction of justice and willful failure to discharge the duties of his office, he's guilty of both offenses. I'm as confident in saying that as I am in the existence of Charon, which I'm told is a moon orbiting Pluto.

  19. David  •  Jul 9, 2010 @11:15 am

    Charon and Pluto jointly orbit a point somewhere between the two, just like Nifong and his hand mirror.

  20. Mahan Atma  •  Jul 9, 2010 @12:32 pm

    "Mehserle claims that he mistakenly grabbed his Glock rather than a taser."

    It wasn't a Glock, it was a Sig Sauer P226.

  21. Federale  •  Jul 12, 2010 @10:16 am

    Well for involuntary manslaughter you still have to have the crime:

    1 The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);

    I don't see the crime Mehserle committed to warrent involuntary manslaughter.

  22. mojo  •  Jul 12, 2010 @2:21 pm

    Shouldn't he be found "incredibly stupid" for putting his taser right next to his service piece? Or was that the Oakland PD's bright idea?

  23. Rich Rostrom  •  Jul 13, 2010 @1:00 pm

    We expect police officers to confront and suppress violent criminals and maniacs. We expect them to intervene in chaotic incidents, and to use potentially lethal force as necessary to protect the public, often on the basis of a split second perception.

    If we treat every mistake (or apparent mistake) by police as a crime to be punished, the effect will be that police will be very reluctant to act when there is any chance of such blowback. "Let the criminals run wild – why should I risk firing and jail time?"

  24. PLW  •  Jul 13, 2010 @1:46 pm

    Who wants to treat every mistake as a crime? I'd be happy with treating every crime as a crime and every mistake as a mistake, but I'm enough of a realist to hope we can treat some of the (worst) crimes as crimes and make do with that.

  25. OJG III  •  Jul 15, 2010 @10:11 pm

    Oscar Grant was not cuffed. Please keep the facts the facts.