Patterico's Pontifications


Fracture, Murder, Implied Malice, and the L.A. Riots

Filed under: Crime,General — Patterico @ 12:02 am

Yesterday, Eugene Volokh asked a very interesting criminal law hypothetical based on a movie. The answer got me thinking about an idea I have had for a new law — one that might have helped put away the creeps who beat up Reginald Denny in the L.A. riots following the Rodney King verdict.

Before we move on I need to warn you: if you haven’t seen the movie “Fracture” and don’t want to know the plot, READ NO FURTHER, because I am about to give it away. I’ll tuck the rest of the post in an extended entry.

[Extended entry]

Let me turn the microphone over to Prof. Volokh, who will pose the hypothetical based on the movie:

Very brief summary of the main legally relevant aspects of Fracture: Anthony Hopkins plays a man who deliberately shoots his unfaithful wife (let’s call him Hopkins for convenience). The wife doesn’t die, but goes into a coma. Hopkins is prosecuted for attempted murder, and is acquitted because of some artfully engineered tricks of his. The judge grants Hopkins’ motion for an acquittal because the prosecution’s evidence wasn’t enough to prove the case beyond a reasonable doubt, even if all its evidence is believed.

Then, Hopkins causes the wife to be removed from life support (since he’s still her next-of-kin and is allowed to make such decisions; ignore for now whether he might be denied such status, perhaps on the grounds that his culpability in her death could be proved by a preponderance of the evidence or even clear and convincing evidence, even though it wasn’t proved beyond a resonable doubt at the criminal trial). Hopkins gloats, because even if the prosecutor could afterwards find some evidence against Hopkins, Hopkins is off the hook because of the prohibition on double jeopardy.

But wait! The prosecutor (Ryan Gosling) does uncover some evidence he didn’t find before, and some he couldn’t find before (the bullet that was in the wife’s body, and that apparently couldn’t be removed). He then prosecutes Hopkins for murder, since the wife is now dead. Because Hopkins is being prosecuted for a different crime, the double jeopardy bar is inapplicable, and all Hopkins’ plans are undone. Neat. The movie ends with everyone expecting Hopkins to get his just deserts at the criminal trial.

Except, Prof. Volokh opines, it’s not that simple.

Prof. Volokh quite properly stipulates that the Double Jeopardy Clause would not prohibit a defendant convicted of attempted murder from later being prosecuted for murder if the victim dies after the conviction. This is the law in California — I did the research on a case where a victim was in a coma — and it makes sense.

This is counterintuitive to some, but think about it for a moment. Say a defendant attacks a victim and puts him in a coma. The prosecution can’t bring a murder case before the victim dies. But that doesn’t mean the State must let the defendant walk the streets! He can be prosecuted for an attempted murder, and murder charges may later be brought if the victim dies. (There are limitations; in California, the killing is presumed not to be criminal if death occurs more than three years and a day from the criminal act — a presumption that the prosecution may overcome with evidence to the contrary. Weird rule, huh? But anyway, the basic point remains.)

But what if the defendant is tried for attempted murder and is acquitted? There, Prof. Volokh says, the doctrine of issue preclusion comes into play:

[O]nce there is an acquittal — and it doesn’t matter whether it’s an acquittal by a jury or a judge — the prosecuting government is bound (in any future criminal trial of the same defendant) by the facts necessarily found in the defendant’s favor by the earlier acquittal.

So how does this apply to the movie? I can’t tell you the answer, because I haven’t seen the movie in question, and don’t know the particular facts. The answer depends upon the facts necessarily decided at trial, using common sense and looking at the particular defense presented. There is a spirited discussion in Volokh’s comments directed towards the outcome based on the facts of the movie, and having read through them, I think that the prosecution could not have been brought.

I can say as a general matter, however, that there are many situations where an acquittal of attempted murder would not necessarily preclude a subsequent prosecution for murder.

For you to understand this, you have to understand something about the law of murder in California. Stick with me here: I’ll walk you through it, and you’ll learn something about what it really takes to prove murder.

MURDER requires intent to kill or implied malice

Most people think of murder as the unlawful killing of a human being with the intent to kill. And indeed, killing someone with the intent to kill is murder.

For example, say I stab you in the neck because I intend to kill you. That is murder with intent to kill.

But there is another kind of murder — called “implied malice” murder — that does not require an intent to kill.

Implied malice has nothing to do with hatred or ill will towards the victim. It is similar to what many call “reckless disregard for human life.” In California (and I’m collapsing, paraphrasing, and simplifying the elements for clarity’s sake) a defendant acts with implied malice if he intentionally commits a potentially fatal act with conscious disregard for human life.

For example, say I stab you in the neck because I am angry at you — but I don’t really intend to kill you. I just don’t care if you live or die. If you die, I have still committed murder. I have committed a potentially fatal act (stabbing someone in the neck) with conscious disregard for your life.

ATTEMPTED MURDER requires intent to kill — always

Attempted murder is different. It requires a direct but ineffective step towards killing someone, with intent to kill. The intent to kill must always be present for attempted murder.

Let’s revisit our examples. I stab you in the neck because I intend to kill you. You live. This is attempted murder.

Now, say I stab you in the neck because I am angry at you — but I don’t really intend to kill you. I just don’t care if you live or die. You live.

I have not committed attempted murder.

So we can see that, for murder, the required state of mind is either intent to kill or implied malice (aka “conscious disregard for human life). But for attempted murder, only an intent to kill will do. Conscious disregard does not support an attempted murder conviction.

This is perhaps most easily seen in table form:

Intent to kill Implied malice
Victim dies Murder Murder
Victim lives Attempted murder ?

Now, let’s say that at trial, the prosecution presents evidence that the defendant stabbed the victim in the neck while screaming “I don’t care if you live or die!” The victim is in a coma. The defense concedes identity and the stabbing, but argues no intent to kill. (In real life, as in the movie, there would almost certainly have been lesser charges, but assume for the sake of the hypothetical that it’s an all-or-nothing proposition.)

The defense wins. The jury sees the case as falling within that lower-right-hand corner of the table, and sees no charge on which they can properly convict.

Then the victim dies.

In that case, it seems to me, the prosecution could certainly bring a murder charge on a theory of implied malice — the upper right-hand-corner of the table. The only issue necessarily decided by the jury was the lack of specific intent. But the jury never found a lack of implied malice. The prosecution wasn’t even allowed to argue that theory until there was a dead body.

Which brings me to the L.A. riots. Even before I was a D.A., I watched the riots and the trial of the guys who beat Reginald Denny, the truck driver whose skull was caved in by Damian Football Williams at Florence and Normandie. I watched the trial afterwards and thought that there was something wrong with the law.

It wasn’t until I became a D.A. and fully understood the law of murder that I saw the problem: the question mark in the table above.

Football Williams probably didn’t specifically intend to kill Reginald Denny. The second after he threw a concrete slab at Denny’s head, he was doing a victory dance for the cameras. If he had intended to kill Denny, why not finish him off?

Granted, the intent to kill is measured at the precise instant of the act — and there are situations where a defendant has an intent to kill when he commits the act, and then immediately loses that intent once he contemplates what he’s done.

Watching the video, I just didn’t get that sense about Football Williams. He didn’t intend to kill Reginald Denny. He just didn’t care in the slightest whether Denny lived or died.

If Denny had died, he’d have been on the hook for murder. As it was, the prosecution struggled to prove intent to kill and failed — and was left with a mishmash of other unsatisfactory charges.

The problem was that question mark in the above table. Football Williams intentionally committed a potentially fatal act with conscious disregard for human life. He just didn’t care what happened to Reginald Denny — and Denny lived.

This comes up a lot more often than you’d think. Gang members shoot up an apartment building, but the prosecution can show no particular motive to kill anyone inside — and nobody dies. A man drives a car into a crowd and mows several people down — but nobody dies. A law filling in the gap above would apply any time you have an implied malice theory of murder — but no specific intent to kill, and no dead body.

And the law would be easy to write. Just include the elements of implied malice murder, but eliminate the requirement that somebody died. Call it implied malice attempted murder. I don’t understand why we don’t do this.

Last suggestion: bump up the time for nonpremeditated attempted murder. Currently, the maximum sentence for that crime is — wait for it — nine years. Nine measly years. There are a lot of laws that fill in the gaps, particularly firearm enhancements, but the idea that an attempted murder is worth only nine years still offends me.

Thus ends the lesson, and thus ends the rant. Who’s with me on this?

And do you think they could have prosecuted Anthony Hopkins or not?

15 Responses to “Fracture, Murder, Implied Malice, and the L.A. Riots”

  1. Illinois allows a permissible inference of intent from conduct so juries may, and do, find that firing a gun at someone’s direction and missing was attempt murder.

    As to whether Anthony Hopkins could be re-prosecuted: There is no merger because since there had been no death yet murder could not have been charged. Is there bar? Does an acquittal operate as estoppel on every element of the charge or even on every matter that was at issue in the first case? Some activist liberal judge might say so. And so would I. Off the top of my head, I remember an old case where the defendant was acquitted but the state subsequently tried to prosecute him for perjury for the testimony he gave in his defense. The court held that the acquittal barred relitigation of the truthfulness of his testimony.

    nk (db0112)

  2. Patterico:

    I’m with you for one — and you cleared up something that has been nagging at me for fifteen years. See, it was obvious to nonlawyer me that something went terribly awry with the prosecution of Damian Monroe “Football” Williams.

    The jury obviously found that he threw the hunk of concrete at Denny’s head, because they convicted him of ADW, I think it was. But they failed to convict him of attempted murder… and I’ve been furious at the jury all this time, assuming it was some sort of brokered verdict.

    But now I see that they couldn’t have found him guilty of attempted murder unless they held that the sub-par IQ Williams had a well-formed intent to kill Reginald Denny.

    Now I probably would have found that, unless there was some spectacular exculpatory evidence; I assume that you simply don’t do what Williams did unless you have a definite intent to kill… even if it were spontaneous.

    But I can see a jury deciding, as you have, that Williams was simply having fun and was no more concerned about Denny’s life than he was whether the concrete broke or not. In which case, the jury’s hands are tied: They cannot find attempted murder.

    So now I should shift my anger from the jury to the California state legislature, which will probably never clear this up. Wanna bet?


    Dafydd (445647)

  3. I can say as a general matter, however, that there are many situations where an acquittal of attempted murder would not necessarily preclude a subsequent prosecution for murder.

    Pat’s logic and law are right, but in practice, I don’t think this is true. To clarify (and to repeat points Pat made):

    Assume defendant got acquitted of attempted murder and any lessers. That *would* implicate double jeopardy. Only when there are no lesser offenses -and thus, no findings by the jury on the rest – would our host’s logic apply. This, as a practical matter, is very rare; there are virtually always lessers to attempted murder.

    Where there are no lessers for whatever reason (tactical decision by both sides?), I agree with Pat on the logic and law of the situation. Retrial’s possible. Again, I see that as very rare.

    More complicatedly, an acquittal on attempted murder and logical lessers might not bar a later prosecution for involuntary manslaughter. But that’s a way longer discussion than this deserves.


    JRM (355c21)

  4. I agree with JRM. As a practical matter this will almost never happen. What I meant is that, absent lessers, there are many attempted murder prosecutions where an acquittal would not necessarily preclude a later trial for murder. But the “absent lessers” part is very rare.

    Patterico (0cb872)

  5. It’s a “same conduct” test, I believe. See Grady v. Corbin.

    nk (db0112)

  6. Personally, I think that double jeopardy is among the MOST necessary protections that we have, and that defendants should get the benefit of the doubt in this regard. The principle is clear .. the government gets one shot to convict a defendant for an illegal act. Those prosecutors who find loopholes to take multiple shots may be acting legally, but are missing the ethical boat entirely.

    Most notably, Federal prosecution after state/local acquittal is a clear violation of the double jeopardy principle, even if legal weasels have allowed it. The “civil rights” prosecutions of the Rodney King police officers after they were acquitted of attempted murder were a miscarriage of justice.

    tomjedrz (562284)

  7. There has been some discussion about future prosecution for lesser offenses after acquittal on (say) attempted murder.

    JRM wrote ..

    More complicatedly, an acquittal on attempted murder and logical lessers might not bar a later prosecution for involuntary manslaughter.

    BUT IT SHOULD. In fact, I posit that this kind of situation is EXACTLY what the double jeopardy prohibition is supposed to prevent. The government had it’s chance, and failed. The government should not act until it is clear on what happened. If it is wrong, then tough potatoes. Prosecutors are not allowed to keep at it until they get the result they (or the public) want.

    tomjedrz (562284)

  8. As for the Legislature clearing this situation up;

    Good Luck!

    When you look at the composition of the Assembly and Senate Public Safety Committees, and which side of the bar their allegiance is, your wish for a clarifying law is just that, a wish (and a hopeless one, at that).

    Another Drew (8018ee)

  9. I’m with you.

    In some ways, “reckless disregard” cases bother me more than “intent to kill” cases because of the random aspect of the events and victims. For instance, it’s rare for a person to intend to kill a child but a person who engages in reckless conduct may end up killing children and others who are ill-equipped to protect themselves.

    DRJ (c6d1df)

  10. “The government should not act until it is clear on what happened. If it is wrong, then tough potatoes. Prosecutors are not allowed to keep at it until they get the result they (or the public) want.”

    I think you overlooked the fact that we’re talking about situations where a defendant committed a criminal act that put someone on the edge of death (as in a coma) but death did not occur for a period of time.

    Which absurd result would you prefer: 1) the attempted murderer goes unprosecuted unless and until the comatose victim dies? or 2) a murderer can never be punished as such?

    Patterico (a02d62)

  11. Hopkins would get convicted because of the evil monologue rule.

    Cobb (190964)

  12. I think the implied malice concept is only activated, logically, if damage resulted. The law in essence says if you act in dangerous ways out of generalized hostility, you are accepting the risk of responsibility for any resulting mayhem.

    It is like saying if you sold an option on a thing and someone bought it you had implied intent to sell. What you really had was ‘readiness’ to sell, which is de facto intent when someone takes you up on it.

    So there is no attempted murder when a guy throws a rock into a crowd. What there is is readiness to accept murder as a result of an act taken. Thus, if death results, he pays the price. Someone cashed in his option.

    Jay D. Homnick (b65cf0)

  13. Patterico wrote in #10

    Which absurd result would you prefer: 1) the attempted murderer goes unprosecuted unless and until the comatose victim dies? or 2) a murderer can never be punished as such?

    The prosecutor makes the decision when and how to prosecute. Once the decision is made and the prosecution happens, it is done.

    The problem you describe is in the law. If the intent of an act is to kill, why should the punishment be less if the act failed? However, the resolution for a problematic law is not to take an end run around clear constitutional intent.

    The government should NOT prosecute a person more than once for a single act. That is clear constitutionally.

    Are you so sure of your integrity and judgment that you are willing to evade the constitution? Are you so sure of the other prosecutors in your office?

    Should Mike Nifong be able to prosecute the Duke lacrosse players for violating the civil rights of the stripper?

    A clear consequence of our system which values individual rights is that crime may go unpunished.

    The end does not justify the means.

    tomjedrz (562284)

  14. Double Jeopardy
    The Fifth Amendment provision, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” has been made applicable to the states through the Fourteenth Amendment (Due Process Clause).

    There are exceptions to this rule. If all the elements that constitute the second offense have no occurred at the time of the trial of the lesser offense, or the prosecution, using reasonable diligence, could not have been aware of all of these elements, the defendant may be tried later for the greater offense. For example, if the defendant injuries the victim, she may be tried and convicted for assault and battery, and may later be tried for murder if the victim dies after the first trial. However, even the victim’s subsequent death would not permit a subsequent trial for murder if the defendant had been acquitted of assault and battery.

    Therefore, Hopkins couldn’t be tried again

    David T (de5a83)

  15. Great post! My wife and I (both lawyers) just finished watching Fracture and had a huge fight over whether this legal theory would actually work. She was right, but I’m still mad at her. Thanks for letting us get to sleep tonight.

    Brian (2bc1f6)

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