Interesting discussion of turbulent relationships and whether they produce intent. Cycle of abuse, etc. People are questioning the degree of intent here.
Note that nowadays, even the lesser charges can get you 40 years. Also note that the most dangerous time in an abusive relationship is the time when you try to leave. Finally, note that if you are going to lose your cool, lose it quickly (e.g., discovering spouse in flagrante delicto), otherwise the lesser penalty status dissipates, and you're back to first degree.
This tends to be very fact-driven. Courts like to think they are just applying the law, but to a great extent the sympathy engendered by the facts is the main thing here. Note the court's statement that if we judged only on the moments before the killing, there would not be sufficient provocation: the cumulative effect of the whole history is judged to be important.
Concurring opinion tries to set forth a test that doesn't rely on legal fiction, and just tries to be honest about the way the statute ought to be. Also the "reasonable man" is defined in two conflicting ways: the ideal and the statistically average. Neither of them helps in considering provocation.
Question about shooting till the weapon is empty: may or may not be indicative of loss of control. This can be one of those facts not in dispute, but spun in opposite directions (1 shot: cold and calculating or trying to minimize harm; empty the clip: extreme intent to kill or panic).
So the court reads the facts disadvantageously to Williford. Note that the jury is not supposed to consider a lesser offense unless they have already deliberated on the greater.
The right to counsel implies effective counsel. This guy went for self defense, which places specific requirements not related to the prior 22 years of abuse (i.e., immenent threat of force).
Here there's a strong pattern of abuse (23 years), and it's a familiar situation: the husband is getting all wound up and abusive. Defendant feels like there's no other way out-- knows she had do do it, even though it is wrong.
Dr. Fred Fosdal, expert witness, usually appears for the prosecution. He is well known (and beloved by defenders). He never thinks anyone is mentally ill, or not responsible. So getting him as a defense witness was a real coup. Race condition attack! Try to hire him for the defense before the body is even cold-- he'll have an unfavorable opinion, but his ethics would keep him from being available to the prosecution. Also a guy called Roberts. This was a real strategy, it seems.
"Mockner" hearing (SP?): finding of incompetence.
Strickland is the standard for determining incompetence:
The defense didn't have to prove provocation, just make it an issue (i.e., production burden); the state has to prove not-provocation beyond a reasonable doubt. Also, the jury is the one who should be deciding this, not the appellate court. The issue of sua sponte instruction is also interesting: the court has the responsibility to make sure the trial is fair, not just procedurally correct.
Basic scenario. Finds wife semi-clothed with lover, shoots lover twice in the head.
But here, in apparent contradiction with Mullaney the court finds that the defendant CAN be required to prove this. Law school sure would be easier if we could just get the rulings, but we need to read the reasoning, because when you have an actual case (i.e., not just statutes to read), they're all slightly different, and it's the logic pattern that matters.
Also, how come the court says one thing one week and then another thing later, if it's all rules and precedent? Well, that would be nice to know. But there are many factors: changes on the court being among the more obvious. Not only that, but who writes the appellate decision really makes a difference.
Mullaney, for example, was unanimous, but with two concurring opinions. Patterson was a 5-3 decision, with Rhenquist taking no part.
Anyway, the court says that they meant what they said in Winship, but there are factors which are not elements, but which can be parts of affirmative defenses, that the state can require the defendant to prove.
Section 2 has the main point of why NY doesn't get in trouble for their murder statute (with the "extreme emotional disturbance" stuff included in it). The idea here is that by and large state criminal law should be interpreted by the states, and the feds should not interfere unless it's a matter of fundamental fairness.
Basically the court is saying that in NY, Extreme Emotional Distress is neither an element nor the negation of an element: it's just a mitigating factor, so the defendant can be required to prove this (preponderance) without violating Winship.
Also, one goal is to prevent the wrongful conviction of the innocent by making the burden a little harder on the state. But there's a limit: the court doesn't have to take every conceivable step-- unfortunately sometimes a mistake will be made, and it's unreasonable to require the state to disprove every possible affirmative defense. We don't want (as remarked in Mullaney) states just being clever to shift burdens onto the defense, but this doesn't fall under that tricky standard.
The court draws a distinction between elements required for conviction and factors that mitigate sentencing. Mullaney shouldn't be read so strongly.
The dissent says that Winship wasn't about a narrowly defined notion of elements. The dissent wants all factors that make a substantial difference in punishment or stigma to be protected. But some of these factors are new (like extreme emotional disturbance) and don't have a long history of protection. If states don't want the burden of disproving affirmative defenses, they have the flexibility of not allowing them by statute. But that's the dissent, and not the winning ruling. :)
So how does that work under WI law? It's a privilege. Is it a complete defense or a mitigating factor? It's a complete defense against 1st degree homicide. On p.124, they have the jury instruction. Coercion is a "partial justification:" it's a defense against first degree, but not against lower degrees.
So the defendant claims that, under Mullaney, the state would need to negate the theory of coercion. The court looks at two sources of law: Patterson (and the due process clause), and §939.70 (presumption of innocence and burden of proof). See pp. 65-67 in the statutes book, on defenses against criminal liability in general. Nothing in there says that the state has to disprove all of these.
So the court looks at the jury instructions, comments from the people who did the codification, and the history of the burden being on the prosecution for disproving excuse or justification (coercion itself was new). There was nothing in the legislative history that suggested that the legislature had wanted to depart from that history, and that therefore coercion should be treated the same way as other affirmative defenses in the statute.
So the court basically says that the state does have to disprove coercion beyond a reasonable doubt, but that in this case the jury was in fact so instructed, and therefore the state wins anyhow.
Good news for defendants generally, but bad news for Moes.
| Good | Bad | Real Bad | |||
|---|---|---|---|---|---|
| A lot | |||||
| Some | |||||
| None | 1 gram | 1 ton |
A conclusory presumption, or shifting of the burden of persuasion, would be a violation of due process. The USSC says that a jury could understand the instruction in one of these ways-- basically like a directed verdict. They cite a Montana rule (rule 301 in the footnote) that basically addresses these points, and suggest that perhaps the Montana court has been soft-pedaling the issue here.
But then the Montana supremes say that deference should be given to the court, in the area that they should be the final authority in interpreting Montana law-- the supremes only need to get into constitutional issues. But the USSC says, OK fine, but we get to decide where there's a constitutional issue (i.e., they are the final arbiter of whether a reasonable juror could have interpreted the instruction in an unconstitutional way). And because the jury form doesn't say whether they found the intent to be specifically purposely or knowingly, but just that it was one or the other, then we have no way of knowing whether this was a harmless error.
Basic facts: Jackson met a woman while he was in jail, moved in with her. They were seen out drinking one night, a knift and a gun were seen, there was some strange business going on. Then 1.5 days later, her body is found.
The "no evidence" test. A writ of habeas would be granted for insufficiency of evidence only if no evidence is found in the record. And when they say "no evidence" they mean pretty much no evidence (Thompson v. Louisville, which we did not read). So if there is some stuff that supports the conviction in there, then that was enough.
But now we have Winship which says we have to prove things beyond a reasonable doubt. So this means that the "no evidence" rule is no longer applicable, because a mere modicum of evidence would not meet that standard. The "beyond reasonable doubt" standard means that the record must support the notion that a rational fact finder could make this decision, based on reason, supported by this evidence. Basically, now there is a new standard of review, for appeals based on evidence.
The question isn't whether the trial court could make this determination, but if, viewing the evidence in the light most favorable to the prosecution, any court could have reached the determination.
So, ironically, they go ahead and view that evidence, and they find that it was totally reasonable to find him guilty.
Again, good news for defendants in general, but bad news for Jackson.
Moral: more defendants get convicted on big stupid lies than on the facts.