Murder, Manslaughter, or Self-Defense?

True story. One homeless man killed another in a street fight, and they charged him with first-degree murder. He was convicted at trial, but last week, the California Court of Appeal reversed that conviction and sent the case back.

Why?

The defendant had pleaded self-defense, but the trial court didn’t let him present expert testimony that homeless people suffer a lot more violence than the rest of us, and as a result, they develop a hypersensitivity to perceived threats.

On appeal, the court ruled that this evidence could’ve made a difference because it would’ve helped the jury evaluate self-defense from his perspective, as the law requires. If a jury found that he actually and reasonably believed in the need for lethal force to defend himself, he wouldn’t be guilty of any crime. If, instead, it found that he actually but unreasonably believed in the need for lethal force, then he’d be guilty of manslaughter but not murder.

As it happened, the defendant was convicted of first-degree murder and sentenced to 26 years to life in prison.

But is that what happened? Here’s the trial record below, so you can decide for yourself.

The dead man’s own friend testified that he watched him inject a “fat” dose of meth that night before storming out the tent they shared. The dose was an 80cc syringe, which an expert described as large enough to kill someone who wasn’t an addict. The friend testified that the man became “agitated,” “aggressive,” and “explosive” before he left.

Within the hour, he was dead.

The defendant didn’t testify at trial, but he’d already confessed to the killing. In post-arrest interviews, he said he knew the man because they both camped in the same area, and he was afraid of him. He’d been stabbed just a few weeks before (which his medical records proved at trial), and he thought the man was one of his attackers.

According to the defendant, that night, the man approached him aggressively and asked for a cigarette. He seemed like he was on something, and the defendant ignored him. The man got angry and asked if he spoke English, and he said he did. The man asked again if he had a cigarette, and he said he did not.

The man then came at him like he wanted to fight. He reached for something in his pocket or waistband, and the defendant thought he was grabbing a knife. So he grabbed his backpack and pulled out a kitchen knife that he had bought after his stabbing. He told the man to get away or he was “gonna send [him] straight to hell.”

They “just started going at it.” Their struggle veered down to the end of the street, where the defendant stabbed the man. When he fell, the defendant “got on top of him [and] made sure that he didn’t get up.” He explained it this way: “I wasn’t gonna wait … to get stabbed. Last time it happened is because I waited … and I wasn’t gonna do that a second time.” He continued to stab the man because he “had to make sure he didn’t … move.”

When asked if he was trying to kill the man, the defendant answered, “Essentially, yes.  I wasn’t trying to tickle him…. Obviously. I’m not gonna lie, yes.”

Afterward, he walked back to his backpack, put the knife in it, and just sat there, waiting for the police. A passerby stumbled onto the scene, saw him, and called 911. The police arrived, found him sitting there, and arrested him. When they asked him what happened, he said, “I got them before they got me.” When asked if he was okay, he replied, “No, he was trying to kill me.” Asked where the knife was, he said it was in the backpack.

A third homeless man had no dog in the fight but overheard some of it. He testified that he was settling in to sleep when he heard two voices arguing. One sounded angry and guttural, like a growl. The other yelled, “Stop, stop,” and moments later, in distress, “Help, help.” He said he stayed put because he didn’t want to get involved. He also testified that he chose his own sleeping place—a stairwell behind the public library—for safety reasons because it was below eye level, and he was less likely to be seen.

Police found the dead body 100 feet away. The primary cause of death was multiple sharp-force injuries to the torso, neck, head, and extremities along with acute methamphetamine intoxication. The blood and urine tested positive for meth, opioids, and other drugs. The defendant’s blood tested negative for all drugs.

On this record, the court of appeal ruled that the trial court abused its discretion in excluding the defense’s expert testimony because it was relevant to whether he actually and reasonably believed he was defending himself.

What’s a Hate Crime in California?

If you’re wondering about that in light of recent events, here’s an overview.

California defines a hate crime as any crime that you commit, in whole or in part, because of a victim’s actual or perceived race, gender, religion, ethnicity, nationality, disability, sexual orientation, or association with those who bear these characteristics.

The phrase “in whole or in part” is important. It means you can be guilty of a hate crime even if your bias wasn’t the only thing that motivated you. It doesn’t even have to be the main thing, in fact, as long as it was a substantial motivating factor. Under the law, a substantial factor is more than a trivial or remote factor but not necessarily the sole or main factor.

The phrase “actual or perceived” is important, too. It means you can be guilty of a hate crime even if it turns out you were wrong about the victim’s race, gender, religion, ancestry, disability, sexual orientation, or associations. What matters is your motive and mental state, not whether the victim actually belonged to or associated with the group in question.

Beyond that, the law defines the other terms broadly, too. The term “victim” can refer to a single person, a group of people, or a place where people gather like an office, library, meeting hall, place of worship, public agency, or community center. The term “gender” includes a person’s sex at birth as well as his or her gender identity or gender-related appearance or behavior. The term “religion” includes atheism and agnosticism.

What are the possible charges and punishments?

The main hate-crime statutes are found in a section of the Penal Code that concerns civil rights, so let’s start there. See generally Pen. Code §§ 422.55–422.93.

First, it’s a misdemeanor if you interfere with people’s civil rights (like the right to vote) by force, threats, harassment, or damage to property. But you can’t be convicted for speech alone unless you threatened violence and had the apparent ability to carry out the threat. If convicted, you face imprisonment in the county jail for up to one year, a fine of up to $5,000, or both. You’ll also have to perform community service for up to 400 hours in one year.

Furthermore, the misdemeanor can be charged as a felony if you have a prior misdemeanor conviction, posed a threat of violent injury, caused actual physical injury, or caused property damage over $950. If convicted of a felony, you face imprisonment in the county jail for up to three years, a fine of up to $10,000, or both.

Finally, the government can charge any felony as a hate crime if it alleges and proves that you committed the crime out of bias toward the victim’s protected characteristics. If you’re convicted of that special allegation, the court will tack on an extra one, two, or three years to your prison sentence. Or if you’re found to have acted in concert with another person in committing the hate crime, the court will impose an extra two, three, or four years in prison. You’re more likely to receive the high terms if you used a gun, and if you have prior felony hate-crime convictions, you’ll get an extra year in prison for each one.

A Postscript to Last Week’s Open Letter

Following up on last week’s post, readers should understand the timeline of events that brought the misconduct to light. Here are the highlights.

  1. In January 2013, a defendant in a murder case filed a motion to get some important information from the prosecution. The trial court found good cause for the motion and granted it, but the district attorney’s office did not comply with the order.
  2. In January 2014, the defense filed three additional motions, alleging that the district attorney’s office was participating in a large-scale operation by the sheriff’s department to purposely violate the constitutional rights of defendants who were awaiting trial in the Orange County jail system.
  3. In February and March 2014, the trial court ordered evidentiary hearings to get to the bottom of these allegations. That is when the district attorney’s office began a campaign to retaliate against the judge.
  4. In August 2014, the judge issued his first decision in the matter. He found that law enforcement had committed due-process violations negligently but not maliciously, and he didn’t disqualify the district attorney’s office from the case.
  5. In December 2014, the judge reopened the hearings because the defense presented evidence that at least two senior sheriff’s deputies had lied during the initial hearings.
  6. In March 2015, the judge issued his second decision in the matter. He found that the two deputies had willfully lied or withheld material evidence during the first set of hearings, and he disqualified the district attorney’s office from the case because of what now appeared to be serious due-process violations:
  • “It is now apparent that the discovery situation in this case is far worse than the court previously realized. In fact, a wealth of potentially relevant discovery material … remained secret, despite numerous specific discovery orders issued by this court.”
  • “After a period of what can at best be described as benign neglect concerning the actions of his law-enforcement partners, the District Attorney cannot or will not in this case comply with the discovery orders of this court.”
  • “In this case, the District Attorney’s conflict of interest is not imaginary. It apparently stems from his loyalty to his law-enforcement partners at the expense of his other constitutional and statutory obligations.”

An Open Letter to the District Attorney of Orange County

Mr. Rackauckas: Just what is going on in your office, sir?

I’m not talking about the fight that broke out in a county courthouse three weeks ago between one of your investigators and a defense attorney. Never mind that if a defense attorney did this to a cop, he’d be arrested so fast his head would spin. (Full disclosure: I met this lawyer two weeks ago at a bar association event and had lunch with him on Monday. Although he’s told me his side of the story, he wasn’t trying to sell anything, and I wasn’t looking to buy, either.) But that’s not the issue here.

I’m not even talking about the jailhouse snitch scandal that led to the fight and that has roiled your office—and my county—for two years now since it’s come to light. Plenty of ink has already been spilled about it, including in a letter to the U.S. Attorney General last November by a coalition of legal authorities, who called on the Justice Department to investigate the scandal. But that’s not it, either.

No, I’m wondering about your office’s response to the scandal, and specifically, the way it has retaliated, systematically, against the trial judge who ordered the hearings that brought the misconduct to light.

I couldn’t believe it at first.

More than once after the scandal broke, I had attended events at which some of your senior deputies expressed both regret and resistance over the news. By turns, what I heard from them was that, yes, some mistakes were made, and we understand your concern, but please don’t blow it out of proportion, give us the benefit of the doubt, and by the way, we’re already doing better and will continue to do better.

Then I learned that, in December, a supervising judge of the superior court had to take your office to task for repeatedly using a procedural tool to disqualify the trial judge from 94% of the murder cases that he’s been assigned to since he began scrutinizing your misconduct. That’s 46 out of 49 murder cases, sir. Your office never did that before, and this to a judge who’s among the more experienced, independent, and respected on the felony trial panel. (Full disclosure: I have a white-collar case pending before this judge.)

The supervising judge found that your office had violated the separation of powers under the state and federal constitutions, and he rightly called it an attempt to punish, silence, and intimidate the trial judge as well as send a signal to the rest of the bench. It’s a national story, and the Orange County Bar Association has taken a stand against it.

I’m wondering if you think this demonstrates good faith by an office whose mission is to “enhance public safety and welfare and create a sense of security in the community through the vigorous enforcement of [the] laws in a just, honest, efficient, and ethical manner.”

Sometimes, the right thing to do is take your lumps and stand down, but instead, your office has chosen to appeal the supervising judge’s order, taking the position that you did not direct your deputies to retaliate against the trial judge.

But either you directed them, sir, or you are not sufficiently in command of your office.

Which is it?

Something Wicked This Way Comes

I recently watched the documentary, Making A Murderer, and if you haven’t yet, you should. No, it’s not an indictment of all law enforcement. It’s an object lesson in why we should be deeply skeptical of power and the people who lord it over our lives. And how easy it can be for them to get you, too, especially once they’ve called you a murderer.

So go ahead and watch it if you haven’t already, and watch it again if you have. Then form your own opinion. Mine is that something stinks to high heaven, and there’s probable cause to believe that the real criminals are getting away with it. Here’s a little bit of the why.

It was 2005, and Steven Avery had filed a lawsuit.

His lawsuit had named the former county sheriff and district attorney as defendants, and those men had reason to be worried.

Some of their lead deputies had royally stepped in it by the way they had handled Avery’s 1985 rape case, which is why Avery had sued them in the first place.

The deputies had purposely withheld material evidence in the rape case when they knew or should’ve known that another suspect, Gregory Allen, was the real rapist. They suppressed that evidence even after new DNA testing pointed to an unknown third party. They hid that evidence even as they watched Avery desperately plead his case on appeal.

Then, in 2003, Avery was exonerated when advancements in DNA testing were able to conclusively identify Allen as the rapist. So Avery was cleared, and he filed a $36 million lawsuit for the eighteen years he spent in prison at the hands of their misconduct. That was $1 million for each year in prison plus $18 million in deterrent, punitive damages.

His lawsuit was getting traction in the second half of 2005, and the defendants had reason to be worried. Some of their deputies had already been deposed on September 22, October 11, October 13, and October 26, and those depositions had not gone well. The evidence was embarrassing to all involved, and it was leading upstream.

The sheriff’s and district attorney’s own depositions were scheduled for November 10 and November 15, respectively, and the county’s insurance company had taken the position that it would deny any coverage because the case involved intentional misconduct.

That meant the defendants faced the prospect of a massive personal judgment if they were found liable, along with other civil and criminal consequences.

Then, on November 3, a woman went missing.

And the rest you can judge for yourself.

May the chickens come home to roost.

A House of Cards

That’s how the U.S. Supreme Court described the evidence in a murder case that it reversed last week because the prosecution had wrongly concealed other important evidence from the defense and jury.

Factor in that other evidence, the Court held, and the house begins to crumble.

How so?

There was no physical evidence tying the defendant to the murder, only the words of two inmates who were serving time for their own, unrelated cases.

The first inmate, Scott, was the one who first contacted the authorities to implicate the defendant nearly two years after the murder. His story had problems to begin with, but he subsequently gave five more statements, and the story would change each time. By the time he testified as the star witness at trial, his account bore little resemblance to the original version. Notably, he testified that another guy, Hutchinson, had run into the street, flagged down the victim’s car, pulled the victim from his car, and participated in the murder.

What the jury never heard was that Scott had a personal beef with the defendant that Scott had told another inmate about. That statement wasn’t produced at or before trial. Nor did the jury hear from another inmate who said Scott tried to coach him to lie about the defendant. That statement wasn’t produced, either. Nor did the jury get to see Hutchinson’s medical records, which would’ve shown that the man had undergone major knee surgery nine days before the muder. The surgery was to repair a ruptured patellar tendon, which meant that, nine days later, he barely would’ve been able to bend his knee. The prosecution had these medical records before trial, but they didn’t turn them over.

The other inmate, Brown, backed up Scott’s story at trial. Although he’d previously given an inconsistent statement to police, he said he decided to testify against the defendant because his sister knew the victim’s sister. He claimed his decision had nothing to do with helping himself. The prosecutor vouched for that in opening statements and closing arguments, saying there was no deal on the table and that Brown hadn’t asked for anything.

What the jury didn’t hear was that, in fact, Brown had twice sought a deal to reduce his sentence in exchange for testifying against the defendant, and the police had told him they would “talk to the D.A. if he told the truth.” The prosecution had those police notes in their possession, but they didn’t turn them over.

On appeal, the state courts ruled that, even if the defendant’s constitutional rights were violated, the errors were harmless.

But the Supreme Court was having none of that, and it summarily reversed the conviction.

Should We Ever Sentence Children to Life Without the Possibility of Parole?

What’s wrong with possibilities?

Earlier this month, the California Court of Appeal held that a trial court could impose a sentence of life without the possibility of parole (or LWOP) on a 16-year-old boy even though the court could not rule out the possibility of rehabilitation.

He’s older now, but the boy was just sixteen years old when he committed the crime. And make no mistake: it was a heinous, horrible crime. If it weren’t then we likely wouldn’t be here. And there’s no way to sugarcoat it. According to the record, the defendant and a 16-year-old relative broke into a home to get money for drugs. They chose the home because they didn’t see a car around, and no one answered their knock on the front door. Inside, they encountered an elderly couple asleep in their beds, and they murdered them. They had brought a knife and baseball bat with them to the burglary, and they stabbed the man multiple times in the neck and beat him about the head and upper body. The woman was beaten severely all over her body, and the entire right side of her face was crushed. That’s all straight from the appellate opinion, so yes, it was bad. From the record, it’s unclear how much of the crime was committed by the boy versus the relative, but at trial, both boys were convicted by separate juries of first-degree murder with special circumstances for committing multiple murders during the commission of a burglary and robbery.

But then, the boy didn’t exactly have role models in life. One of his uncles was already serving a life sentence for murder. His paternal grandfather was an alcoholic, and his maternal grandfather died in prison following his conviction for molesting a 12-year-old relative. His maternal grandmother used speed and cocaine and beat the boy’s mother when she was young, and later, his mom got involved in gangs—as did her siblings—which is how she met his father, who was also a gang member. His mother got pregnant with him when she was 15, and his father described it as an unplanned and unwanted pregnancy. His mother continued to drink heavily after he was born, and he grew up in a neighborhood racked with gunfire and gang activity.

His parents separated when he was a baby, and he rarely saw his father again. His mom hooked up with another gang member, and she had four more children by that guy. The new guy used drugs, drank heavily, and whipped the boy with his hand or a belt.

One day, the mom and her new guy got into it really bad, so the mom took the boy and moved out to her own, unstable mother’s house in Bakersfield. They stayed there with the grandma and her 16-year-old son, who was technically the boy’s uncle and seven months older than him.

Two weeks later, the mom reconciled with her ex and left, but the boy stayed behind in Bakersfield. He had tangled with the ex before, and he was not happy about the reconciliation.

Within days, he and the 16-year-old relative committed the crime. Before that, the boy had his share of problems, obviously, but he had no criminal record.

At sentencing, the boy’s lawyer acknowledged his horrible, horrific crime but urged the court not to give up on him entirely, arguing that he was going to be punished severely even without an LWOP sentence. Under California law, the boy was subject to either an LWOP sentence or, at the court’s discretion, a sentence of 25 years to life. See Pen. Code § 190.5(b).

The court appears to have wrestled with its decision, and at one point, it agreed that it “certainly [could] not exclude the possibility in this case, perhaps a significant one,” that the boy had “some significant possibility of rehabilitating.”

In the end, however, the court emphasized the violent nature and circumstances of the crime, and it sentenced the boy to life without the possibility of parole.

On appeal, his lawyer argued that the Eighth Amendment allows an LWOP sentence for a juvenile only if the facts show that he or she is irreparably corrupt, and that wasn’t the case in light of the trial court’s statements about rehabilitation.

The court of appeal, however, rejected that argument, holding that a trial court could impose an LWOP sentence despite the possibility of rehabilitation, so long as it properly exercised its discretion by weighing all relevant factors, including the defendant’s youth. The appellate court reasoned that a trial court’s discretion under section 190.5(b) had survived all the recent federal and state supreme-court cases on juvenile punishment, including the following:

  • The Eighth Amendment prohibits the death penalty for those who are under 18 years old at the time of their crime. Roper v. Simmons (2005) 543 U.S. 551.
  • The Eighth Amendment allows LWOP sentences for minors only in cases of homicide. Graham v. Florida, (2010) 560 U.S. 48.
  • The Eighth Amendment prohibits mandatory LWOP sentences for minors even in cases of homicide. Miller v. Alabama, 132 S. Ct. 2455 (2012).
  • Under section 190.5(b), there is no presumption in favor of an LWOP sentence over a 25-years-to-life sentence. People v. Gutierrez (2014) 58 Cal. 4th 1354.

Even so, it seems to me that life without the possibility of parole is always the inferior choice.

A ray of hope remains in California. Based on a new 2012 law, a minor may now petition for the 25-years-to-life sentence after serving 15 years of an LWOP sentence. See Pen. Code § 1170(d)(2). If his petition isn’t granted, he gets two more chances to petition for resentencing after 20 and 24 years. See id. But then that’s it. And he has no right to a lawyer to help prepare his petitions. Plus, there are many qualifiers and disqualifiers. So it’s a hard road, but it presents a chance.

Mother of Five Gets New Trial on Capital Murder Conviction

Have you heard of Hannah Overton? She’s spent the last seven years serving a sentence of life without the possibility of parole for the murder of her four-year-old, then-soon-to-be-adopted son. But this September, the Texas Court of Criminal Appeals, which is that state’s supreme court for criminal cases, reversed her conviction and sent it back to the office of the district attorney that prosecuted her. At the original trial, the prosecutor argued that Ms. Overton tortured and killed the boy by force-feeding him salt because she couldn’t cope with his behavior. Apparently, the jury didn’t buy that, but it did convict her on an alternative theory of murder “by omission” on the ground that she did not get him medical attention quickly enough when he fell ill.

The case has created quite a stir, and you can find some local, national, and international coverage of it here, here, herehere, and here.

Ms. Overton has maintained her innocence all along, and after her conviction was reversed, she and her defenders hoped that prosecutors would not re-file the case, but they had no such luck. A couple weeks ago, the district attorney announced that his office would retry her on the original capital-murder charge.

In the meantime, family members say they have faith she will finally come home soon. One of them, Lucy Frost, wrote an open letter recently to the Journal of the American Bar Association, and the text of her letter follows below:

“Regarding ‘The Age of Innocents,’ September, page 54:  I have a family member, Hannah Overton, serving life without parole for a crime that I and others know did not occur. The Texas Court of Criminal Appeals overturned the capital conviction on Sept. 17. Now we await decisions on bail and retrial.

All the post-conviction hearings and appeals in her case suggest prosecutorial misconduct, police misconduct and a tunnel-vision investigation, as well as a medical examiner who appears to me to have been squarely on the prosecution team.

I use the qualifiers “suggest” and “appears to me” because she is legally not yet exonerated. I am 100 percent certain she is innocent. This was a tragic, accidental death of a child—not capital murder.

To say that I have lost faith in our criminal justice system would be an understatement. As a citizen, I pray it can be reformed. Because of Hannah’s case, I have come to know and believe many things, including:

  1. A national innocence board is needed—similar to the National Traffic Safety Board—a federal agency that independently investigates every exoneration and wrongful conviction, then trains and advises all parties on how to avoid the errors that led to them.
  2. The death penalty should be abolished. The system is too vulnerable to errors. I have no doubt that innocent people have been executed in this country.
  3. Prosecutors must be better trained, and there must be oversight of this role. There appear to be no checks and balances on them. Absolute power corrupts, absolutely.
  4. An innocent person must get the advice of an attorney immediately, even when they believe there has been no crime committed and they know they are innocent. The authorities are not going to figure out what happened. Sad but true is the fact that innocence is no protection.”

The Courage of Our Convictions

Speaking of self-defense cases, here’s a story you don’t hear very often.

A retired judge in New York has prompted the courts there to overturn a murder conviction that he believes was a mistake, and here’s the thing: the judge says he’s the one who made the mistake.

In 1999, Frank Barbaro presided over the trial of a white man who was accused of shooting a black man outside a movie theater. The defendant had waived his right to a jury, so the case was tried to the court instead. The defendant argued that he shot the man in self-defense, but Barbaro didn’t believe him and thought he was motivated by racism. He found the defendant guilty and sentenced him to 15 years to life.

But the case continued to gnaw at Judge Barbaro, and over the years, his doubts grew. Along the way, he obtained a copy of the trial transcript, and as he read it, he says, “I couldn’t believe my eyes. It was so obvious I had made a mistake. I got sick. Physically sick.”

He now says it was his own bias against the defendant, whom he viewed as a bigot, that led him to convict. In 2011, he called the defendant’s lawyer to say so, and that phone call eventually led to a court hearing last December. At the hearing, Barbaro took the stand as a witness to testify that his bias had deprived the defendant of a fair trial. In response, prosecutors opposed the defense’s motion to set aside the verdict and called the judge’s memory and mental health into question. But Barbaro says his mind is clear as a bell, and he offered another explanation for the root of mistakes like his and others:

“I think too many times there is pressure to finish cases, get the cases done and off the calendar. This pressure dooms people to be convicted unjustly. Now I’m not saying every case, but one is too much.”

It’s All Just Harmless Error, Except When It’s Not

We say you’re not guaranteed a flawless trial, only a fair one, so even when there’s error, we don’t reverse a conviction if the error is deemed to be harmless overall.

But a federal court of appeals recently reversed a state murder conviction because of a legal error that several courts before it had deemed harmless. The case takes an interesting look at the weight and power of jury instructions in a murder trial, and it begins with a shooting outside a Las Vegas hotel, with a guy who’s convicted of second-degree murder and sentenced to life in prison.

The guy never denied the shooting but argued it was in self-defense. Self-defense, of course, is a complete defense if you can “perfect” the defense, meaning you can establish not just that you sincerely believed that using force was necessary but that your belief was reasonable. Otherwise, “imperfect” self-defense, where your honest belief is judged to be unreasonable, is not a complete defense, meaning you don’t just walk. In some jurisdictions, though, it’s enough to reduce murder to manslaughter, because an honest belief in the need to use force, even if later judged unreasonable, means you didn’t act with malice, so you can’t be guilty of murder (the classic definition of which is an unlawful killing with malice aforethought). But other jurisdictions don’t lean that way, including Nevada.

In this case, the jury convicted the guy of second-degree murder, so they don’t appear to have accepted a complete self-defense theory, but they could’ve convicted him of manslaughter, and they were given the option to do so. In fact, they received instructions on each of first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter. Voluntary manslaughter, they were told, was the unlawful killing of another without malice but rather upon a sudden quarrel or heat of passion caused by sufficient provocation. They were told that sufficient provocation could include an attempt by the person killed to commit a serious personal injury on the person who did the killing.

The problem was that the jury instruction on self-defense confused the interplay between murder and manslaughter. They told the jury that an honest but reasonable belief in the need for self-defense did not negate malice and did not reduce murder to manslaughter. That was flat wrong. An honest and reasonable belief in the need for self-defense always negates malice. The court had meant to say “unreasonable,” not “reasonable,” but it was a clerical mistake, and no one ever caught it. The court even corrected another typo in the same instruction and advised the jury about it, which may have reinforced to the jury that the rest of the instruction was correct.

On appeal, the Nevada Supreme Court agreed that the instruction was wrong, but it held that the error was harmless given the totality of the jury instructions and the evidence admitted at trial. The defendant filed habeas corpus petitions in the state courts as well as in federal district court, but they were all denied.

Finally, on appeal from the district court’s denial, the court of appeals ruled that the error was not harmless, and it reversed. The court held that the error had a “substantial and injurious effect or influence” on the jury’s verdict because it lowered the state’s burden to prove murder by confusing the kind of provocation that could reduce murder to manslaughter.

So was the error harmless, and was it murder or manslaughter? You can decide for yourself. Most of the facts of the case were not in dispute, including the following.

The defendant had met up with his girlfriend and two younger brothers at a nightclub in Las Vegas. When his girlfriend tried to leave, she encountered the alleged victim, who was a neighborhood rival, standing next to her car with his friends. She asked them to move so that she could leave, but they wouldn’t get out of the way. As she tried to back her car out, she hit the alleged victim in the arm, and the guy got upset, kicked her car, and screamed obscenities at her. When her boyfriend (the defendant) came out of the club, the other guy began yelling at him, too, and in the moments that followed, the other guy pulled a box cutter from his pocket. He may have been fixing to use it, too, but one of the club’s security officers grabbed him by the arm and restrained him, and there was no further incident at the club.

The defendant and his brothers left the club and drove to a casino, but the other guy and his friends followed them there, making threatening gestures at them along the way. When the defendant’s crew pulled into the parking lot, so did the other crew. Apparently, the ensuing commotion was loud enough that the casino’s security wouldn’t allow either group inside, so things went from bad to worse outside. A fistfight broke out. Then someone in the other guy’s group began throwing rocks at the defendant’s group. Then the other guy brandished his box cutter again and threatened to cut the defendant’s face off.

Amid the commotion, at some point, the alleged victim went back to his car and got in from the passenger side, without closing the door. At that point, the defendant went to his own car, retrieved a gun, ran to the other guy’s car, and shot him four times.

At trial, witnesses testified to a history of confrontation between the two men in which the alleged victim was always the aggressor. Even one of the alleged victim’s own friends testified that his friend was always the aggressor; that the defendant was frightened that night; and that the defendant tried to de-escalate the situation. A psychiatrist who examined the defendant testified to a reasonable degree of medical probability that the defendant honestly believed he and his family were in danger of being killed. Although some witnesses testified that the altercation was over by the time the alleged victim went to his car, others did not, and one testified that he heard the alleged victim say just before going to his car, “You can dodge this knife, but you can’t dodge these bullets.”

Ratings and Reviews

10.0Mani Dabiri
Mani DabiriReviewsout of 7 reviews
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