Lesser included offenses

This is the third in a series of posts related to James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia. His charge was recently upgraded from second to first degree murder. Last week I wrote about the difference between these two charges.

As I said last week, in order to get a first degree conviction, the prosecutor will have to prove that Fields premeditated the killing. That’s going to be somewhat tricky, because there’s no evidence that Fields planned the act more than a few moments in advance. A few moments is legally enough to constitute premeditation, but it makes for a difficult case. What happens if the jury finds insufficient evidence of premeditation?

Well, Fields almost certainly won’t go free. For one thing, he’s also facing about ten other charges related to the incident, including malicious wounding. More importantly, however, the jury could still find Fields guilty of the lesser included offense of second degree murder.

What does that mean? Every crime is made up of individual ingredients, called elements. Prosecutors must prove all these elements in order to gain a conviction. Sometimes two offenses consist of very similar elements. For example, larceny is taking someone else’s property, while robbery is taking someone else’s property through threat or force. Breaking and entering is unauthorized entry into a structure or vehicle; burglary is unauthorized entry into a structure or vehicle with intent to commit a felony or steal something inside. In these examples, larceny is a lesser included offense of robbery, and b & e is a lesser included offense of burglary. Each lesser offense includes some but not all of the elements of the greater offense.

Okay. So second degree murder is intentionally taking human life. First degree is intentionally and with premeditation taking a human life. Second degree is a lesser included offense of first degree. And the law says that when a jury fails to find a defendant guilty of first degree murder, they can still convict for the lesser offense if the prosecutor has proven all the lesser offense’s elements. In Fields’s case, even if the prosecutor fails to prove premeditation, he might prove that Fields intentionally killed the victim.

First versus second degree

I’m in the middle of a series of posts related to the case of James Fields, Jr., who drove his car into a crowd of counterprotestors in Charlottesville, Virginia, killing one person and injuring others. He was originally charged with second degree murder, but the charges have been upgraded to first degree.

So what’s the difference between first and second degree murder?

Both crimes involve the same act: taking a human life. What differentiates them (and all other forms of homicide) is the defendant’s mental state. For second degree, the defendant must intentionally kill. For first degree, he must kill intentionally and with premeditation. In other words, second degree might be a split second decision, but first degree requires some amount of forethought. Because we believe that a planned murder is more blameworthy, first degree carries a more serious penalty than second.

Now, when I say “premeditation,” you may be picturing a villain spending months scheming away, developing the perfect plan to do away with her nemesis. That would certainly count. But the law doesn’t actually require that much. In fact, the defendant might ponder for only seconds before she acts. Or if the killing takes some time—such as when the victim is strangled, for example—the pondering might even take place during the act itself. All that’s required is proof that the defendant had time and opportunity to think about what she was doing to the victim.

It’s also worth noting that the defendant doesn’t have to develop intent to kill any particular person. It’s enough if he decides to create substantial risk to human life in general—such as shooting into a passenger train, setting up a bomb in a public place, placing poison in something people are likely to consume, or dropping a heavy object off an overpass onto a highway.

In Fields’s case, videos show the defendant driving slowly toward the crowd, backing up and then accelerating directly into numerous people. He then quickly reversed again, striking more people before getting away. The prosecutor will have to prove that in those short moments before his foot hit the gas, Fields deliberately decided to strike people with with his vehicle at a substantial speed. If the prosecutor can prove that, Fields may end up convicted of first degree murder.

Next week: What if the prosecutor can’t prove premeditation?


Evolving charges

On August 12, 2017, a group of people were in the streets of Charlottesville, Virginia, counterprotesting white nationalists. James Fields, Jr., a man with a reported fascination for Nazis, apparently deliberately drove his car into a crowd. He killed one person, Heather Heyer, and injured dozens more. Just last week, prosecutors announced they’d be seeking a first degree murder conviction against him. For the next few weeks, I’ll be posting on some issues related to this case.

Today I’m going to talk about how criminal charges might evolve in a case.

In a typical criminal case, a person is arrested by police. The police report will list at least one potential criminal violation; police are supposed to have probable cause to believe that the suspect has committed this crime.

The prosecutor will review the report and decide whether to pursue the case (incidentally, this is one reason why police must have decent writing skills). If the prosecutor opts to go forward, she’ll issue something called a criminal complaint. This will specify the parts of the criminal code which the defendant is alleged to have violated. These charges may or may not be the same crimes named in the arrest report because the prosecutor may find that fewer, additional, or different offenses are better substantiated.

Within a short period of time—usually two business days—the defendant will be arraigned. As part of this process, he’ll be informed of the charges in the complaint.

In Fields’s case, the complaint charged him with second degree murder along with a slew of lesser offenses such as malicious wounding.

After the arraignment, the prosecutor will conduct additional investigations (as will the defense attorney). Eventually there will be a probable cause hearing, the purpose of which is to determine whether there’s sufficient evidence to proceed with the case. That hearing may be a preliminary hearing, in front of a judge, or it may be a grand jury proceeding, in front of a group of citizens. In either case, the prosecutor has to produce enough evidence for the charges to stick. And sometimes, perhaps pursuant to additional evidence that’s been collected, those charges may be different from those in the complaint.

That’s what’s happened in Fields’s case. The preliminary hearing was last week, and the prosecutor opted to upgrade the most serious charge from second to first degree murder. The judge found enough evidence to support first degree, so that’s the charge Fields now faces.

In some cases, charges may continue to evolve after the probable cause hearing. Prosecutors may drop some charges or, pursuant to a plea bargain, defendants might plead guilty to a lesser offense.

Next week: the difference between first and second degree murder.


Hey, you know what it’s time to talk about? Impeachment! Totally from a legal point of view, no political agenda here, la-la-la.

Let’s be clear on the terminology. In the US, impeachment is the bringing of formal charges against a government official, by the US House of Representatives. Impeachment is not a guilty finding–it’s only the beginning of the process similar to an indictment in a criminal case. Government officials may be impeached for “high crimes and misdemeanors.” Whatever that means; the Constitution doesn’t specify.

Impeachment happens when a simple majority of the House votes to bring articles of impeachment. These will specify the offenses with which the official is being charged. The trial itself is held in the Senate. If two-thirds or more of the Senate finds the official guilty, he is removed from office. He may face additional punishments as well, such as being barred from holding future offices. An guilty finding in an impeachment case won’t send the official to prison, but ordinary criminal charges may also be brought against him.

Impeachment can be politically fraught, which helps explain why it has been used rarely. Only two US presidents have been impeached–Johnson and Clinton–and both were acquitted in the Senate. Nixon resigned before he could be impeached. A handful of federal judges have been impeached (including one Supreme Court Justice, Chase, who was acquitted).

Oh, and in case you’re wondering, the articles of impeachment against Clinton and Nixon both included accusations of obstruction of justice, among other things. So, you know, it’s fairly well settled that presidents can be charged with that, despite claims otherwise.


Sympathetic bad guys?

Today’s post is a result of conversations I’ve had with a couple of author friends—and a situation I’ve faced myself. Suppose your plot demands that your protagonist has been charged with a crime. Maybe he’s even been convicted. But you also want to make sure that the protagonist remains a sympathetic character. You don’t want your readers to reject him due to his background. How can you pull this off?

One obvious answer is to make sure the readers know he’s innocent. The poor lamb has been wrongfully accused. This can make a juicy plot driver in itself, but it has also been done a lot (as in The Fugitive), and if not handled well can come of as trite.

I think there’s much more potential when your protagonist is actually guilty. He did the deed. Ah, but why? Maybe he was desperate. Maybe he was young. Maybe he foolishly let himself get pulled in by the wrong crowd. Maybe he had a really rough background and the crime seemed, at the time, his best choice. Not only are all of these realistic and interesting, but they also reflect true life: most criminals aren’t especially different from the rest of us. They just made some bad decisions.

It’s probably easier to rehabilitate your protagonist for some crimes than for others. It’s harder to sympathize with a violent offender, for instance. And some offenses, such as rape and child abuse, are probably just about hopeless. If your guy commits one of those, it’s unlikely you’ll ever endear him to readers. But never say never, I guess. Hannibal Lecter comes to mind.

Whatever crime your guy has committed, you may also face the issue of how to keep him from doing hard time. If it was a relatively minor offense and he didn’t have much of a record, you can probably get away with giving him probation. If someone else committed the crime with him, perhaps your guy will testify against him in exchange for immunity or a plea deal. If his circumstances were really extreme, he might even seek clemency (which in most states can be granted by the governor; the president can grant it for federal crimes). But in real life, clemency is an extremely rare event.



You’re out: three strikes

Jamie looked resignedly at his public defender. “Fine. Fine. Yeah, I stole that crap from Walmart. Big deal. I’ll plead guilty, the judge’ll give me probation, and I can get on with my life. Right?”

But his lawyer shook her head. “You don’t understand. The DA’s charging this one as burglary. A felony.”

“So? I do a stint in jail.”

“Prison. And more than a stint.”

He frowned at her. “For stealing movies from Walmart?”

“Remember those two convictions you had for assault with a deadly weapon?”

“Those were over twenty years ago! I was a stupid kid. But I did my time, and I haven’t touched a gun or anything since.”

“I know.” The lawyer sighed. “But you have two violent felony convictions. You’re looking at 25 to life.”

Poor Jamie has just found himself on the wrong end of a three-strikes law.

Several jurisdictions have passed these laws; most were enacted in the mid 90s, in the midst of the push to get tough on crime. They’re also known as habitual offender laws—or, more familiarly, the Bitch (as in, poor Jamie just got Bitched). The purpose of these laws was to increase penalties for repeat offenders.

The laws vary across jurisdiction, but they generally increase penalties severely for third offenses. And by severely, we could be talking life sentences. In order to qualify, the offender must have been convicted of his third (or greater) felony. In some cases the first two felonies might need to be for violent offenses, but the third one need not. In California, for instance, someone like Jamie could face life for a fairly minor third felony.

Another interesting facet about three-strikes laws is that in some cases—like California—the first two strikes can be for certain violent offenses that were prosecuted by juvenile courts. That takes a lot of people by  surprise.

Incidentally, there’s no real indication that these laws reduce crime. But they could make an interesting plot point.