BroodsSexton said:
I think I agree with you, it's just an interesting wrinkle in the law. The word "meditation" suggests that there is some cognitive reflection by the defendant as to the consequences of the act (e.g., shooting the gun, stabbing, etc.). But, of course, you run into epistemological problems in proving what in fact went through the defendant's mind prior to the final act, and so you're left with a necessarily circumstantial case on this element, which is proved (as you point out) by the act itself. For most of us, it's pretty hard to imagine using a gun in a manner that would kill a person without at least having some consciousness of the consequences. But ironically, it is the most dangerous of sociopaths who could perhaps do that without having some "pre-meditation" of the killing. My guess is that we basically skim over that problem in most cases, because that's the guy who we want most to find guilty. Am I way off? Could be--thinking aloud.
I'd agree with this. There are a lot of wrinkles in how we think about murder - in no small part because most of the "elements" of the crimes we deal with can be traced back to "19th Century" formulations of how the mind works. I think our current system is functional enough, but not really exact.
The psychopath problem is one wrinkle. The mentally-ill/paranoid is another: such a person could feel overwhelming fear or nihilism or compulsion as they shoot a police officer in cold blood. They might not even fully think of the police officer as "a real person." Yet the legal standard is whether or not they knew the action was wrong when they did it. If they did (also inferred) then it seems no one really worries much about trying to establish "premeditation" in that context. The "trained to shoot/kill" person is another wrinkle. If you have someone who is trained to draw and shoot, do they really have "premeditation" or is it "instinctual"? (And this last one comes up more often than you might think with cops and vets.) Heavy drug use is another wrinkle. Or take the Jared Remy case - roided out, paranoid, controlling, mental problems, etc. Did he just "snap" or was it "premeditated?"
And we also have manslaughter for "adequate provocation" - which should make us ask, adequate provocation for whom? (Or "what kind" of overwhelming passion?) Right now most places define it as "provocation which would cause a reasonable person to lose self control." So it kind of sucks if the defendant is burdened or has a slightly lower threshold that the jury imagines they should. (There's also the issue of what a jury of one's peers really means - must everyone on the jury have run up against that "losing control to the point where killing would be justified" threshold at some point in their lives?) What about enduring 20 years of police harassment - is that "adequate provocation" if you shoot a cop over a "straw that broke the camel's back" incident?
I realize I've broadened the topic a bit, but, if as a society, we're allowing a "step-down" from M1 to M2 through the issue of "what is adequate premeditation?" the question practically becomes, "In exactly what types of situations do you allow that step-down
as a matter of law?
I'm not against safety valves in the law, nor would I be against a more nuanced law which takes objective and subjective mental states into account in a more comprehensive way. I'm just pointing out that "premeditation" is tricky, and the "adequate provocation" step-down for manslaughter is very subjective and can be quirky.
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Aside from the legal formulations, there's also the question of how killing crimes are charged and prosecuted. Often, in gray cases, the state might offer an M2 plea instead of pushing forward on M1. I tried an M2 where the defendant said, on his completely admissible recorded confession, that he deliberately got a gun to shoot the victim, and when he saw the victim (just before the shooting) he said "I said to myself, 'It's going to be his last day.'" If that's
arguably not M1, I'm not sure what is. But the state only went forward on M2. It was a chronic bullying case where the bully was shot and killed, so perhaps the state felt that the jury would be sympathetic, or felt that the circumstance (a quasi-allowable killing) should get a lesser penalty. That puts us in my informal "we can't say that some people brought it on themselves" category that I touched briefly on above. But it was a matter of prosecutorial discretion, not established law allowing a mitigation.
PS - there are also intellectual wrinkles in cruelty, malice, etc. but those are for another day/post. Some of that was fleshed out in this thread. By people who were just genuinely curious about what was what and who, even by just casually musing on it, could see some of those issues. Which I think is remarkable.
