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);
2 When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)
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;
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;
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;
2 The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;
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);
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;
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
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
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- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
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