Monthly Archives: July 2016

Making a killing

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Storytellers (and their audiences) have been fascinated with the topic of homicide since before we started writing our stories down. Consider the Iliad, for instance, which is nearly 3000 years old. There’s a lot of death there, with the killings of Hector and Patroclus forming a central part of that tale. Even our legal concepts of homicide are old. Although specifics vary between jurisdictions (yadda yadda yadda), most US states base their homicide law heavily on English common law dating to the Norman Conquest.

All homicides involve the same action: one human being killing another. The parties do have to be human. No matter how intelligent or well-loved a non-human animal is, its killing cannot be a homicide. If you’re a spec fic author, you have some lovely opportunities to muse on the potential definitions of humanity. Sentient aliens? Artificial intelligence? The walking dead, undead, and reincarnated? Ooh, such possibilities!

What differentiates the different kinds of homicide is the defendant’s mental state and the surrounding circumstances. We can subdivide homicide into three categories, each of which is comprised of subclasses.

Murder is the most serious kind of homicide. It involves unlawful killings–usually intentional killings, although there are a few exceptions to that rule. State definitions differ, but generally first-degree murder involves killing someone intentionally with some degree of premeditation. It doesn’t require a lot of premeditation. In some cases, first degree murder convictions have stood when the killer formulated his intent to kill a very short time before following through. Typically, though, he’s been thinking about it for a while. First degree murder may also include felony murders, in which the offender committed a felony—an armed robbery, maybe—and didn’t plan for anyone to die, but someone did. There are some interesting twists to the felony murder rule; I’ll cover them in a later post. In the US, first-degree murder is almost the only crime that carries a potential death sentence (the other being treason).

Second-degree murder is also intentional, but without preplanning. Cain and Abel get into a bar fight, Cain says “I’m gonna kill you!” and then he pulls out his gun and shoots Abel dead. That’s second degree. Second-degree murder also often includes “depraved heart” killings in which the killer didn’t necessarily want anyone to die, but acted with such extreme indifference to human life that a death was likely. The classic example is shooting a gun at a passenger train.

Manslaughter is a killing involving less culpability on the part of the offender. For voluntary manslaughter, the killer has acted “in the heat of passion.” That is, something provoked him so severely that he lost control of himself and killed. The classic example here is when the offender comes home and finds their spouse in bed with someone else. Involuntary manslaughter means the offender was so careless as to cause someone’s death. Vehicular homicides such as those caused by excessive speeding or drunk driving are often charged as involuntary manslaughter, although in some states they’ll be vehicular manslaughter instead.

Finally, there’s non-criminal homicide. This occurs when the killing is permitted by law (e.g., euthanasia and execution) or is justified under the circumstances, such as self-defense or some killings by police officers. As the name suggests, those who commit non-criminal homicides won’t face punishment. But somebody’s still dead.

Homicide law is complex, full of all kinds of little details that could make lovely plot points. For example, what do we mean by “killing”? Does brain-dead count? How direct does the relationship need to be between the offender’s acts and the victim’s death? What if the death occurs years after the attack, as in this case? How much premeditation is enough? When has someone acted with a depraved heart? (That was the issue in the recent trial of a Baltimore policeman for Freddy Gray’s death.) When is an act careless enough to justify criminal liability?

Even if we set aside the inherent drama of human life and death, it’s no wonder homicides have fascinated us for so long!

Have I got a bargain for you!

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So you’ve described a crime. A suspect’s been caught, he’s all lawyered up, and now there’s a juicy trial scene you can’t wait to write. Maybe you’ve been inspired by all those great courtroom scenes you’ve seen on TV and in movies—all those wonderful speeches by lawyers; the surprise witnesses (which are almost never really allowed, by the way); the shocking new pieces of evidence (also rarely allowed); the high emotions of defendant, victim, and jurors. Courtrooms are a beautiful setting for drama.

But here’s the thing–in real life, few cases ever make it to court. In the United States, over 95% of criminal cases are settled with a plea bargain.

A plea bargain is pretty much what it sounds like: a negotiated deal between prosecutor and defendant. Generally, the defendant agrees to forego the trial and plead guilty to lesser charges. If there are multiple charges involved, the prosecutor might drop some. Or the defendant might plead guilty to the original charge but receive a reduced sentence. Judges usually approve plea bargains, although on rare occasions they may reject them. Recently, for example, a judge rejected a plea deal for the former LA County Sheriff because, the judge said, the resulting sentence was too lenient.

Plea bargaining usually begins early in the case but becomes more earnest after the preliminary hearing (or grand jury proceeding), which is when the defense gets a fairly thorough preview of the prosecution’s case. A plea deal can continue during the trial, right up until the moment the verdict is announced, but usually an agreement is made long before the case gets to court.

The biggest benefactor of plea bargaining is the system itself. Our courts are already overburdened, and the justice system would come to a screeching halt if plea bargains didn’t exist. Can you imagine if the number of criminal trials were increased by 2,000%? Prosecutors benefit because plea bargains make their conviction rates look good. Defendants might benefit by getting a reduction in punishment. Arguably, victims might benefit by avoiding the rigors of testifying in court, as well as by having faster closure to their cases.

But plea bargaining is controversial. Victims’ advocates and those who favor harsh punishment argue that offenders get less than they deserve. Even worse, though, innocent defendants may be pressured by overburdened defense attorneys into pleading guilty. Even if the defense attorney doesn’t exert pressure, the innocent defendant is faced with a terrible gamble: plead guilty and get punished for a crime she didn’t commit, or take her chances at trial, knowing that if she’s convicted, she’ll end up with an even more severe punishment.

Personally, I think that’s a plot point that’s received way too little attention. Imagine the angst your character will experience while she decides whether to say, plead guilty to manslaughter and do ten years, or go to trial on murder charges and possibly end up in prison for the rest of her life. Picture the pressure she’ll be under from her lawyer, her friends and family. The mental anguish she’ll face no matter which decision she makes. There’s so much fictional gold to be mined here, you might want to consider skipping that boring old trial scene altogether.

Jury Duty

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The live action version of How the Grinch Stole Christmas is, in my opinion, far inferior to the original cartoon. But there’s a great scene in which the Grinch is messing things up in the post office. Among other things, he flings mail into the cubbyholes, all the while chanting, “Jury duty, jury duty, jury duty, blackmail, pink slip, eviction notice….” Is jury duty really that awful? And how does it work?

The idea behind jury duty is that people are entitled to a jury representing a cross-section of the community. We don’t have to have that sort of jury. When juries were used in 12th century England, they were composed of men who already knew something about the offense, by either being witnesses or having investigated the case. More recently, some people have proposed that we ought to have professional juries, especially in cases involving technical or scientific evidence that laypeople would have trouble grasping. But what we do instead is attempt to randomly choose members of the community to serve.

Jury selection processes vary by jurisdiction in the United States (big shock there, right?). Generally the jury commissioner (usually a county job) uses voting and drivers license registration records to compile a list of eligible people. This means certain groups will be underrepresented, especially the poor who may not have licenses, may not be registered voters, or may not have a permanent address. The commissioner estimates how many jurors will be needed in a particular time period, randomly chooses from the list, and sends those lucky people a jury summons.

The length of jury service varies. Where I live now, the rule is one day or one case–you get called in, and if you end up on a case that day, there you go. But if you don’t, your jury service is (usually) complete at the end of the day. There are exceptions to that rule, however. The last time I was called, jury selection in one particular case took two days, so we all sat there for that long. The first time I had jury duty, in Oregon, I had to serve for two weeks. During that span, some people served on more than one jury, while some of us didn’t end up on any. But we all sat there for two weeks.

As the Grinch knew, most people aren’t happy about getting that summons. If you ignore it, though, you can be found in contempt of court. Also, employers are required to give employees time off for jury service–but they’re not required to pay them. Serving can mean a real hardship for some people. Many jurisdictions allow those who’ve been summoned to ask for a reschedule. Another option is to go to court and try to convince the judge to let you off the hook. Judges vary in how lenient they are about this.

The group of people who have jury duty at any one particular time are called the jury pool or venire. I’ll post another time about how we get from that large group to the twelve (or so) specific people needed in a particular case.

Legal doublets

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I like the term legal doublet. It sounds like a fancy suit someone might wear to court. Its actual meaning, though, is even more interesting: it’s a legal phrase with two (or more) words that mean the same thing. Here are some examples:

  • cease and desist
  • aid and abet
  • will and testament
  • hue and cry
  • lewd and lascivious
  • give, devise, and bequeath
  • null and void
  • have and hold
  • keep and maintain
  • terms and conditions

What’s the deal? Are lawyers paid by the word? Nope. As with many other things in the U.S. criminal justice system, the explanation goes back to the 11th century and the Norman Conquest.

At the time of the conquest and for a long time afterward, England was not a land with a single language. In fact, three major languages were in use. The common people spoke the Germanic Anglo-Saxon, which evolved into English. The nobility, however, spoke French. And Latin was used by the clergy and educated people, including lawyers. Furthermore, as time passed, the use of language shifted, so French and Latin were used less in official contexts and English was used more.

Clarity is of utmost importance in legal language. So often, in order to make sure the meaning was clear to all, a legal phrase might be written in two or more languages. We can see this well in give (English), devise (French), and bequeath (English again). And in will (English) and testament (Latin).

But there were other uses for doublets as well. Sometimes two very similar words carry different nuances, and a writer wanted to cover all the bases. Breaking and entering is a good example of this. They’re pretty much the same thing, although perhaps a savvy lawyer could argue that a person could break (a window or a lock) without entering (stepping foot on the premises) or, if the door was unlocked, could enter without breaking. Better to include them both. Assault and battery is another example. Technically, assault is putting someone in fear of harmful or offensive contact, whereas battery is the harmful or offensive contact itself. You could have one without the other: the perp could threaten but not carry it out (assault) or the victim could have his back turned and never see the punch coming until the fist hit him (battery). In most cases, though, where you have one, you have the other.

The third reason for legal doublets is simply that they sound nice. They’re a rhetorical device. Raise the hue and cry sounds a lot better than just raise the hue or raise the cry (or, you know, just shout). Law has a rich oral tradition dating back to the time of Socrates, if not further, and lawyers have always wanted to sound good and important and knowledgeable.

As an author, I revel (rejoice, delight, exult, luxuriate, glory) in the linguistic diversity English allows us. Legal doublets are one interesting facet of this diversity.