When Is a Homicide Not a Crime?

The Yolo County (California) has indicated that he is not going to pursue criminal charges out of the homicide of Scott Heinig (pic) by one of his friends who punched him in the face and killed him.  The story by Hudson Sangree at the Sacramento Bee is pretty sad, but illustrates tough decision-making in when to pursue criminal charges in an unusual and tragic fact pattern.  Do you agree?:

Authorities said Wednesday that the death of a well-liked Davis baseball player and coach, who was punched in the face by a friend on Picnic Day and died, was a homicide.  But Yolo County prosecutors will not file charges in the killing of Scott Heinig, 22.

Though "caused by human hands," Heinig's death was "the result of a tragic set of circumstances that do not rise to the level of criminal conduct," the Yolo County District Attorney's Office said in a press release.

"We have talked to the family of Mr. Heinig, and they are behind this decision," Assistant Chief Deputy District Attorney Michael Cabral said.

The details of Heinig's death were made public for the first time Wednesday, after nearly three months of investigations by the Davis Police Department and the Yolo County Coroner's Office.  Heinig was a recent UC Davis graduate and university baseball player. He also played baseball at Davis Senior High School and was working as an assistant coach there.

On April 16, Heinig celebrated Picnic Day, the UC Davis annual open house, authorities said.   "He had been out enjoying the Picnic Day festivities and had consumed alcohol throughout the day," Lt. Paul Doroshov, Davis police spokesman, said Wednesday.

Afterward, a small number of friends gathered at a home in the 1000 block of Fifth Street, officials said.  Heinig and three or four friends were in the driveway about 8 p.m., when Heinig insisted they hit him in the face, authorities said.

A police investigation "revealed that this type of conduct was a common occurrence between Heinig and his friends," the news release said.

Heinig's friends initially refused, but then Heinig hit one of them in the face and the man punched back, it said.   The blow to Heinig's face and twisting motion of his head caused an artery in his neck to rupture, a rare injury sometimes seen in boxers, authorities said.

Heinig collapsed, hitting his head on pavement.  Lifesaving efforts at UC Davis Medical Center were unsuccessful, and Heinig died shortly after midnight.

His blood-alcohol content was measured at 0.11 five hours after the incident, authorities said. The legal level of drunkenness is 0.08.  Alcohol breaks down in the bloodstream at a rate of about 0.02 per hour, Cabral said.

Officials did not identify the man who struck Heinig but described him as a close friend who was distraught after the incident.
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Many years ago I defended a biker/iron worker who hit another man in the jaw knocking him to the pavement causing one of his orbital sockets to shatter permamently disrupting an optical nerve and blinding the man in one eye.   My client intentionally struck the "victim" and yet a jury acquitted my client.  Why?

Every case exists on its own set of facts and circumstances.  In my client, Fran's case, he was confronting another biker who he had every objective and subjective right to fear.  He was at the scene to collect a terrified young woman and her few belongings who was moving out of the "victim's" house.  The victim had a long history of violence, criminal priors, and was in fact incarcerated for an aggravated armed robbery at the time the case against my client went to trial. 

Still, if the unthinking reactionary prosecutions are any indication this was a pretty brave decision by this Yolo County prosecutor.  It seems to me that once again it comes down to mens rea, although I think this is a pretty close case.  When you volitionally hit someone in the face with enough force to knock them to the ground it seems to me you are knowingly assuming the risk that this sort of outcome could result. 

Shakespeare's Intent, Light Into Matter

Let me set the stage, William Shakespeare wrote a tragic-comedy called the Merchant of Venice which my friend Gayle, curator and cultural critic of Gayle's Bard Blog has been brilliantly "blogging" over the last few weeks.  This post is being posted in conjunction with her post on the same subject matter.  So if you are at all interested go here, honest, it's good for you!  And you can brag that you read your Shakespeare for the year, your friends will be impressed.

The Merchant is a problem play for many reasons not the least of which is its anti-semitism, although Gayle and I agree that perhaps the most sympathetic character is also the one who is intended (?) by Shakespeare to be the most loathesome, Shylock, the Jew.  Shylock lends money for the benefit of a young Venetian with the bond upon default of repayment of a "a pound of flesh."  There is a "courtroom" scene in which the female heroine, Portia, in the disguise (classic Shakespearean technique and plot twist) of a "learned" young attorney.  Portia turns the tables on the creditor, Shylock, when Shylock attempts to "claim" his pound of flesh--by literally carving it from the body of the reckless intermediary, Antonio. Through a literary device, which Gayle is much more competent to address, Portia wins the day and spiritually destroys Shylock.

My pal Gayle sent me the following query:

"What are the legal implications of  'intention.' Because, as you know, Act 4 is when Shylock's commercial case--involving a contract--becomes a criminal prosecution. Portia says

Tarry, Jew.
The law hath yet another hold on you.
It is enacted in the laws of Venice,
If it be proved against an alien
That by direct or indirect attempts
He seek the life of any citizen,
The party 'gainst the which he doth contrive
Shall seize one half his goods; the other half
Comes to the privy coffer of the state,
And the offender's life lies in the mercy
Of the Duke only, 'gainst all other voice--
In which predicament I say thou stand'st,
For it appears by manifest proceeding
That indirectly, and directly too,
Thou hast contrived against the very life
Of the defendant, and thou hast incurred
The danger formerly by me rehearsed.
Down, therefore, and beg mercy of the Duke.

[Portia, the female lead in the guise of a learned lawyer] says "it appears by manifest proceeding," which I take to mean, "it looks like you intended to." But h[Shylock] never says "I crave Antonio's life." [Shylock] says "I crave the law." And of course there seems to be a separate law for "aliens," as well--which goes against the putative universality of law itself; which Portia uses earlier on to say that she can't "wrest the law to her authority." Instead, she seems to make up a whole new law! But anyway...if the bond itself was illegal, which this speech seems to indicate, then what? Because Antonio borrowed money and signed a contract that wasn't binding. Or so it would seem.

Of course this is drama, not real (legal) life. But I was wondering how these issues would play out in a real courtroom, and whether you could think of any real-life analogues.

Also, it seems to me, the whole issue of "intent" is relevant to the religious equivalent of crime, ie, sin. Is it a sin if you don't intend it to be one? Your own legal difficulties might give you some personal insight into this (which of course you may not want to share)."
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So you are saying to yourself, huh?

Gayle is very perceptive, because what Gayle notices in the Merchant, is that Shakespeare, for dramatic purposes, is doing a legal sleight-of-hand.  The courtroom scene is the "trial" of a contract or commercial case: a bond forefeiture for non-payment, entitling the lender to collect the agreed upon default, in this case "a pound of flesh." But what transpires is that the civil-commercial case morphs into a criminal prosecution as Shylock's insistence upon performance of his bond--an almost Taliban-like collection proceeding--is found to violate Venetian criminal codes, specifically "spilling blood." 

Gayle is asking is there any modern equivalent.  And if so what role does the legal requirement of "intent" play in the scheme of things, alternatively can "intent" for a commercial purpose serve as "intent" for a criminal prosecution arising out of the same set of transactions? 

First a disclaimer, the Bad Lawyer is not a scholar, and the questions poised by my pal Gayle are truly better addressed by genuinely learned legal scholars.  But there are some general principles that make the question fun to think and talk about.  As I've said here in the past, prosecution of criminal acts requires proof beyond a reasonable doubt of both the prohibited act and the requisite intent to commit the act.  A homicide is the act of killing someone, it is not "murder" absent proof that the person committing the act also possessed the requisite mens rea, criminal purpose and intention.  For example, Luigi kills Vittorio.  In our hypothetical set of facts the homicide occurs when Vittorio climbs through Luigi's bedroom window at night with a dagger in hand. We can conclude that Luigi's intent was self-defense, not murder.  We could change our hypothetical facts, Vittorio kills Luigi.  Vittorio came with dagger in hand, to collect a debt, knowing Luigi to be a dangerous man--Vittorio's intent to "collect a debt" may vitiate criminal intent or it may not.   Ah, . . . from just such questions the Socratic technique conceived and the law school colloquys hatched.

One of the classic scenarios of "transferred intent" which is suggested in Gayle's query but not actually applicable, is arson--felony murder.  The arsonist is engaged in the commercial enterprise of reducng property to "cold hard insurance cash."  If per chance, someone is occupying the building being burned, or a fire fighter dies from an injury, or cardiac-pulmonary episode while responding to the scene, the prepetrator's criminal intent to commit the arson is said to "transfer" to the homicide making it murder. 

Intent of a different species is required for commercial transactions, and as we know commercial transactions of all sorts also support criminal prosecutions, as with Bernie Madoff, et al.  Contracts are said to arise upon offer and acceptance, and a "meeting of the minds," is achieved.  Once again the intention of the parties is relevant when disputes arise and courts are asked to determine the contract terms, and order a remedy.  There, I said it--Gayle...remedy.  Shakespeare's Merchant is comedy or drama, failing wholly as a treastise on commercial or contract law, because Shylock's demand is absurd in real world terms because his available remedy regardless of the "language of the bond" is money and it is universally money (although I understand that the Japanese Yakuza might actually do the "pound of flesh"-thing.) 

And the Merchant is anti-semitic as a matter of cultural history, evidenced by referrring to the Talmud, Fourth Tractate, Sanhedrin (Court) you will find that the most advanced and humane procedures for resolution of commercial disputes existing centuries before "common law" in England (which was not "common" until English King Henry II made it happen)  The Rabbinical procedures provided for arbitration and mediation providing remedies for judgment and compromise of commercial obligations or debt.  Talmudic traditions provided for just resolution of disputes among Jews but also for the benefit of outsiders.  Physical harm to a debtor was not an available remedy.   But one need not refer to the canonical oral law of the Talmud to understand that the Merchant scenario of demonic Jewish creditor is libelous, look at Leviticus (uh, the Old Testament) specifically 19:11-37 which provides that Jews will be just to one another and just with "aliens" who settle "with you."  The Rabbinical oral law is even more explicit.

But let me deal with Gayle's other question, are there corollaries in the law to the Merchant scenarios, in my experience?  Sure! 

You can read about my own experience with debt and forfeiture and imputation of intent into a threat of criminal prosecution of me arising out of a client's personal bankruptcy and his bankruptcy fraud. I won't resummarize the story of my asserted malpractice and alleged criminal conduct in Pedro's case and its consequences for me, but trust me (or read it for yourself,) the story is as complicated and byzantine as the Merchant.  Oh, yeah--and just like Antonio, I caused my own misery through sheer stupidity and recklessness.  And yes, there are all kinds of outcomes that are "pounds of flesh."

Globally ,we can think and talk about all sorts of similar situations involving usury and financial recklessness.  There are also examples of "illegal contracts," and intentional torts.  You see, the question of corollary is not unlike pulling on a loose yarn at the corner of a sweater and unwinding the entire sweater.  When a lawyer writes a brief advocating a position in a case he or she is handling, the lawyer looks for law "on point." 

First the researching lawyer looks for statutory, (codified law and regulatory) authority. Next, he or she looks for case law with precisely the same set of facts in precisely the same sort of circumstances.  When such a "precedent" does not exist (usually,) our legal warriors look for corollaries and analogies in the area of law that they are practicing and at other areas of the law--for general principles.   Frankly, this approach has its problems, since finding a case "on point," frequently is not available because the law--contrary to the claims of "originalists," continues to evolve. 

I am coming to believe that a better approach is to start with first "principles" then drill down--in other words, I'm beginning to re-embrace larger ideals.  Isn't this, in the end, why Shakespeare is still relevant?  Despite the apparent anti-semitism, the theatrical tricks, and the plot twists, there is truth in Shakespeare.  The Bard, like all avatars of genius in history connect us with truth, transforming light into matter and the template of thought and language into our lives.

Law School Question Fact Patterns

This LA Times story sent to me, yesterday, by my friend Okiedoke presents the cliche` law school question "fact pattern."  It's also a frightening tale of violence against a woman by her ex-boyfriend. 

The maniac in the picture raped a woman in what he claims was an invitation for sex role play on Craigslist.   In fact the victim's ex-boyfriend was able to induce this idiot to rape his ex- by placing an ad on Craigslist.   The question my friend Okiedoke asks, who if anyone committed a crime?  My answer is, both the ex-boyfriend and the perpetraor of the "role-playing rapist" are guilty of rape. 

As a first step let's let DeeDee Correll summarize the facts for us: 

The advertisement appeared on Craigslist in early December.

"'Need a real aggressive man with no concern for women,' read the posting on the Internet classified advertising forum. Its purported author was a Casper, Wyo., woman, whose photo also was posted.  One week later, a man accepted the offer, forcing his way into the woman's home, tying her up and raping her at knifepoint. 'I'll show you aggressive,'  he allegedly said, according to court testimony.

In fact, authorities say, the woman had nothing to do with the ad. Instead, they say, a former boyfriend had posted it, soliciting her assault.  Such an incident would have been impossible -- or at least much less likely -- 20 years ago, Natrona County Dist. Atty. Mike Blonigen said. 'It's probably only possible in our modern age,' he said. . . The Wyoming case began to unfold Dec. 5. Jebidiah James Stipe, 27, a Carbon, Wyo., native and Marine stationed at Twentynine Palms, Calif., allegedly posed as his ex-girlfriend and placed the ad seeking an aggressive man.  Two days later, she spotted it and contacted the Natrona County Sheriff's Office, as well as Craigslist, which took down the ad.  But Ty Oliver McDowell, 26, from Bar Nunn, Wyo., had allegedly already seen it.  McDowell, an employee of the Wyoming Medical Center's radiology department, e-mailed the address listed in the ad, according to an affidavit in the case.  McDowell later told authorities that he and the woman exchanged instant messages, and she described what she wanted -- 'humiliation, physical abuse, sexual abuse,' according to investigators -- and gave him her home address.  In fact, authorities say, McDowell was communicating with Stipe.  On Dec. 11, McDowell allegedly went to the woman's home and forced his way inside. He bound, blindfolded and gagged the 25-year-old woman, then raped her as he pressed a knife to her throat, the affidavit said.   Detectives said he told them he thought he was fulfilling her rape fantasy.  McDowell was arrested and charged with first-degree sexual assault, aggravated kidnapping and aggravated burglary. Stipe was also arrested and charged with conspiracy to commit first-degree sexual assault."
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Let's assume that the facts as set out in the LAT are proved, both Stipe and McDowell are rapists.

The elements of a crime are both and act and requisite mental intent or mens rea, which is Latin for something.  The act in this case is the sexual assault on Stipe'sl ex-girlfriend.   The fact that Stipe himself did not perpetrate the physical act is not relevant in the same way a contract murder is still murder committed by the criminal soliciting the commission of the crime.

McDowell's defense will be that he lacked the requisite intent to commit rape, I say bullshit.  Let's bear in mind, your "consent" to the commission of a violent crime against yourself does not relieve the perpetrator of criminal liability.  The criminal law is for the protection of not just individuals but of the community as a whole.  Thus, a victim's consent is not relevant--McDowell's mistake of fact may be interesting but it's a distraction from the fact that he committed a thoroughly violent and criminal act--and his actions in binding, gagging, and holding a knife to her throat are damning on the issue of his requisite criminal intent. 

I say, weird case, weird fact pattern--it's a damn good thing these two sick bastards are off the street.