Category Archives: Murder

Josh Brent: Intoxication Manslaughter or Second Degree Murder?

Josh Brent, a professional football player with the Dallas Cowboys, has been charged with the crime of “intoxication manslaughter.” The victim, Jerry Brown, was a passenger in Brent’s car when Brent, allegedly fueled by alcohol, drove well in excess of the speed limit, hit a curb and flipped his car over.

Manslaughter is a form of illegal homicide. Unlike murder, which generally requires an intent to kill, the crime of manslaughter is based on a voluntary but reckless act that leads to another person’s death. In this instance, Brent’s criminal liability would be based on his voluntarily drinking alcohol to such a degree that his driving was a reckless act.

If it turns out that Brent was legally drunk, prosecutors might charge him with the more severe crime of second degree murder. Second degree murder is appropriate when an unintended killing is the result of gross recklessness. Brent was convicted of DUI in 2009, about 3 years before Brown’s death. The prior DUI makes Brent’s decision to drink and drive even more reprehensible, and may constitute gross recklessness that elevates his crime to second degree murder. Sadly, his “celebrity status” as a professinal football player may discourage local prosecutors from charging him with murder.

A Dummy Cross Examination

Courtrooms are often sites for memorable “theater.” For example, can anyone who watched the mid-1990’s murder trial of OJ Simpson ever forget his conveniently unsuccessful struggle to put on the glove that the police found at the murder scene? The prosecution’s failed experiment gave rise to defense lawyer Johnnie Cochran’s famous catch-phrase summary, “If the glove don’t fit you must acquit.”

More recently, a creative California prosecutor tried to use a mannequin to help prove that a defendant had committed a gruesome murder. Testifying at trial, the defendant admitted to strangling his male lover-victim to death. But the defendant tried to lessen his punishment by testifying that he did so in the heat of sudden passion. If the jury accepted this defense, the defendant could have been convicted only of voluntary manslaughter, a far less serious crime than first degree murder. Trying to undermine the “heat of passion” claim, the prosecutor told the defendant to pretend that the prosecutor was the victim and to show the jury how the strangulation took place. (Even in open court this was a brave experiment. After all, the defendant had admitted to one strangulation already!)

The defense lawyer objected, but said that it might be OK if the prosecutor used a mannequin. The judge declared a recess, telling the prosecutor to “go find yourself a dummy.” The prosecutor returned to court with a female dummy. The dummy (not the prosecutor) was “wearing a blue dress, a pink ribbon and a hat.” The defense attorney again objected, pointing out that the female mannequin did not resemble the male victim.

Then matter got even more bizarre. The judge ordered the defense attorney to disrobe the mannequin. The defense lawyer did so reluctantly, stating that “I still object, but that’s better.” Responding to the prosecutor’s (and the judge’s) directions on cross examination, the defendant then spent considerable time using his hands and a strap that the prosecutor found in a trash can to strangle the helpless naked female dummy.

How any of this helped to prove that the defendant had committed an intentional murder was not apparent to three judges on the California Court of Appeal. The judges opined that the re-enactment was “suggestive of a slapstick parody,” “inflammatory,” and an “absurd, indecorous courtroom spectacle.” But they decided that while the trial judge never should have allowed the re-enactment, the defendant was so obviously guilty as charged that they unanimously allowed the defendant’s conviction of first degree murder to stand. The case is People v. Rivera, 133 Cal. Rptr.3d 721 (2011)

The bottom line: “Go get yourself a dummy” is probably not a catch-phrase that this prosecutor will ever want to hear again!

Dr. Conrad Murray Convicted in the Michael Jackson Case

Dr. Conrad Murray was convicted of Involuntary Manslaughter. A Los Angeles jury concluded that his grossly negligent behavior led to the 2009 death of famed entertainer Michael Jackson. While Dr. Murray’s overall mistreatment of his personal patient was abhorrent, Involuntary Manslaughter is the least serious form of culpable homicide. It is punishable at most by imprisonment for 4 years.

One of the major disputes in the trial was whether Dr. Murray carelessly administered a fatal dose of propofol, a powerful anesthetic that before the trial few people had heard of. Murray’s defense, which shifted almost hourly, was that Jackson somehow managed to inject himself with a fatal dose of propofol. Either way, Murray was grossly negligent. Even if it were true that a barely-conscious Jackson managed to inject himself, the fact that Murray was nowhere around when he did so (Murray was outside Jackson’s bedroom, talking to one of his many mistresses, unless his wife happened to have beeped in and interrupted his conversation) constituted gross negligence.

Dr. Conrad Murray on Trial for Michael Jackson’s Death

Dr. Conrad Murray is charged with involuntary manslaughter for causing the death of Michael Jackson. In California, a conviction for involuntary manslaughter is punishable by up to 4 years in prison. While this is analogous to a civil medical malpractice case for damages, the prosecution’s task is harder in two key ways, compared with what a civil plaintiff must prove.

First, the prosecution has to prove that Murray behaved recklessly rather than negligently. In order for Jackson’s killing to be considered involuntary manslaughter, it must be shown that Murray showed a reckless disregard of substantial risks, and that those risks caused Michael Jackson’s death.

Second, prosecutors must prove Murray’s guilt beyond a reasonable doubt. Because involuntary manslaughter involves recklessness and not purposeful killing, it is a less serious crime than murder or voluntary manslaughter, but it’s still a tough crime to prove.  

As in so many cases, if Murray is convicted, it may be due to his own lies and failure to tell emergency medical personnel that he had treated Jackson with propofol.

We hear a lot these days about how medical care for the wealthy is so much better than it is for poorer people. Maybe it’s not so. Michael Jackson was paying this guy an absurd $150,000 per month, and for all that Murray seemed far more interested in talking to his bevy of mistresses than checking to see whether his patient was breathing.

Troy Davis, the Death Penalty and LWOP

Georgia executed Troy Davis for the murder of police officer Mark MacPhail on Sept. 21, 2011. Though Davis is black and MacPhail was white, the racial makeup of the jury (7 blacks, 5 whites) muted some potential claims of racial bias. Instead, the controversy over Davis’ execution was based on claims that Davis might be innocent. The conviction was based largely on testimony from eyewitnesses, many of whom have signed affidavits stating that their testimony was wrong. Some blamed the police for coercing them into false testimony,

Despite the recantations and the ensuing protests, the existing justice system has perhaps worked as best it can. Davis’ execution was postponed at least twice, and his attorneys appeared in court and contested the conviction. However, in the absence of DNA evidence (or other scientific evidence) that might have cleared Davis, judges refused to believe the witnesses’ recantations rather than their trial testimony. “Buyers remorse,” after all, is common: witnesses who feel bad about contributing to convictions (especially those that produce death penalties) often say that their testimony was mistaken.

Ultimately, replacing the death penalty with LWOP sentences (Life in Prison With No Possibility of Parole) is the only long-term solution to situations like the Troy Davis case. In the absence of conclusive scientific evidence, the criminal justice system is simply incapable of guaranteeing either that he is guilty or that he is innocent. Perhaps a clear answer would emerge in the fullness of time, but even postponed execution dates establish time limits that expire. LWOP sentences protect society in two ways. They guarantee that murderers will never get out of prison, and also guarantee that we will not carry out wrongful executions.

‘West Memphis 3’ Freed: What is an Alford Plea?

In one of the most surprising chapters in the controversial story of the “West Memphis 3”, the three Arkansas men — convicted of murder while still in their teens, and now in their 30’s — were set free today.

Jason Baldwin, Damien Echols, and Jessie Misskelley have essentially agreed to plead guilty to the 1993 murders of three boys in West Memphis, Arkansas, but the three defendants are also still permitted to proclaim their innocence.

Confused yet?

The judge in the Jonesboro, Arkansas case has allowed the “West Memphis 3” to enter a special plea agreement, commonly known as an Alford plea, which lets an accused person maintain their claims of innocence while acknowledging that the prosecution has compiled enough evidence that a jury could return a conviction on the crime charged. There’s some good background and discussion on this kind of plea here on

Baldwin, Echols, and Misskelly were given time served for their charges after the judge accepted their new plea bargains, and all three are under suspended sentences after being set free, this according to MyFoxMemphis, which quotes prosecutor Scott Ellington saying after today’s proceedings: “I believe this case is closed.”

The Alford plea gets its name from the 1970 U.S. Supreme Court case Alford v. North Carolina, in which the Court upheld this specific kind of agreement between a prosecutor and a criminal defendant. In that decision, the Court declared:

    “An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when, as here, he intelligently conclude that his interests require a guilty plea and the record strongly evidences guilt.”

‘Caylee’s Law’ Coming Soon?

A mere two days after a Florida jury decided that prosecutors failed to establish Casey Anthony’s guilt beyond a reasonable doubt when it came to the murder of her daughter Caylee Anthony, comes news that legislatures in at least four states are planning to draft some version of a criminal statute they’re calling “Caylee’s Law.”

Though specifics of any final version of “Caylee’s Law” will likely vary from state to state, the idea is to require parents to quickly report a missing child (or the death of a child) to the proper authorities within a short time (such as 24 hours), or face conviction for a felony. Currently a plan for drafting “Caylee’s Law” is set in Florida, Oklahoma, New York and West Virginia, but it would be no surprise to see more states quickly fall in line behind those four. And the WSJ Law Blog reports that almost 100,000 people have also virtually “signed” an online petition calling for the creation of a federal version of “Caylee’s Law.”

In the Anthony case, Caylee Anthony’s disappearance was not reported to authorities for over a month. And while Casey Anthony was convicted of four counts of lying to police, she faced no additional charges for failing to report her daughter as missing, because Florida has no such law on the books. That may change soon — and not just in Florida. Stay tuned.