The Jury Talks Back


What Sort of Crime is This?

Filed under: Uncategorized — JRM @ 9:18 pm

Let’s do another exercise:

Here are the rules: You don’t have to worry about the actual law. You get to decide.

You do get to worry about how this ruling affects all other rulings.

Scenario One: Redline.

Joco likes marijuana, and watches TV. TV is funny. Joco is 22 and does not work. Joco’s stupid mom stopped giving him money, but his friend Larry has a plan: Joco will drive Larry over to Collector Dave’s house. Larry will bag up all the stuff while Joco is lookout, then Larry will call Joco so they can carry the large amount of antique guns, baseball cards, stamps, and gold coins believed to be in Collector Dave’s house. They’ll run into the car, drive away, and Joco will get 30% of the proceeds, which should be several thousand dollars.

So, Joco drives over Larry. It’s very stressful to be lookout, so Joco smokes a few relaxing joints and dreams of wealth. Sadly, this dream is shattered by many large, angry, yelling officers telling him to get out of the car. Joco does.

It turns out that Joco hasn’t done well as lookout. Collector Dave got home walked through his garage into his house, walked through the hallway and saw Larry bagging his stuff. Larry told him to “stay the fuck there or get hurt, old man.” Dave, a friendly ad salesman and former front-line Vietnam veteran grabbed a gun from the closet and shot Larry four times. Larry is dead.

1. Assume Joco is guilty of residential burglary, and will be punished for that.

2. Should Joco be punished for Larry’s death? To what extent?

Scenario Two: Self-defense?

Fat Tony, 32, likes attractive athletic women like Marie, 36, who runs by his apartment every day. She wears her Ipod and literally won’t give him the time of day. She also has a cell phone holster and some other pieces of electronic equipment, but no time for him. Once, she brushed by him when he tried to talk to her.

Fat Tony couldn’t keep up with her for fifty yards to maintain a conversation anyway.

So, Fat Tony figures out a different romantic move: Knifepoint rape.

Tony knows her route and figures to drag her into an alley. He waits near the alley, steps in front of her, waves his knife, and says, “You’re coming with me, bitch.”

This is not a well-thought out plan; Marie could easily run either down the alley or the other way. Two hundred yards down is a restaurant. Fat Tony might be able to chuck the knife at her, but his chance of really hurting her in a retreat is negligible, and his chance of catching her is nil.

However, Marie’s holster actually contains a two-shot Derringer. She takes one step back and shoots him. As she explains to the cops, she wanted to stop him from advancing, and his girth vs. the relatively underpowered Derringer might mean an ineffective shot.

Her shot was effective. It takes off Tony’s left testicle. Marie said she was afraid of being raped or knifed if she didn’t retreat, that she knew she had a safe route of escape, but that she wasn’t taking anything off anyone and she was perfectly pleased with the result. And now was time to complete her run.

Question: Should Marie be punished for shooting Tony? Why or why not?

What say you?


  1. Marie gets to shoot off Joco’s right testicle?

    Comment by kaf — 12/18/2008 @ 9:46 pm

  2. Larry died during the commission of a felony. Joco faces murder charges.

    Marie gets a marksman’s medal if she was aiming for the “bullseye” or shooting lessons if she was aiming for center mass. Marie should not have to determine the running ability and throwing skills of an assailant before administering deadly force in self defense. Fat Tony settled the matter when he pulled the knife on her.

    Comment by Machinist — 12/18/2008 @ 11:43 pm

  3. Since I don’t have to care what the law is, and it’s just Afternoon TV Court with Judge Kevin:

    I will release Joco without another day in jail, so long as he accepts the word “UNRELIABLE” to be tattooed onto his forehead in 30-point type.

    Marie must explain to the satisfaction of the court why she used only one of her two shots.

    Comment by Kevin Murphy — 12/18/2008 @ 11:54 pm

  4. As a practical matter, unless Joco is a blabbermouth and/or has a really stupid lawyer, he faces no charges as he simply says he got stoned and had no idea what his friend was up to. He may well BE guilty of residential burglary, but I can’t see anyone proving it.

    Comment by Kevin Murphy — 12/18/2008 @ 11:56 pm

  5. Joco was a participant in a felony that resulted in Larry’s death. Life with the possibility of parole.

    Marie reasonably feared death or great bodily harm. She acted in self-defense.

    Comment by Stu707 — 12/18/2008 @ 11:57 pm

  6. Joco indeed is guilty of murder. And specifically in order to set the precedent that if you participate in a crime that causes a death, you are responsible for it. Burglarizing a home is an act that implies you are willing to deal with the people who live there. It’s a nasty crime. 10 years in prison ought to do it.

    Marie is not guilty of a crime. Even if she had an escape route, she can’t foresee what will happen next. She’s a woman on foot. Tony could have an accomplice around the corner, a motorcycle, a gun or taser… anything. Rape attempt victims do not have to determine whether they have a viable escape. Once a rape attempt is made they should be permitted to kill the attacker unless it is absolutely and completely obvious that she is in no risk whatsoever (which would be exceedingly rare… like shooting the rapist when he’s unconscious).

    Comment by Juan — 12/18/2008 @ 11:58 pm

  7. Marie gets to shoot Joco.

    Comment by Apogee — 12/19/2008 @ 12:31 am

  8. Damn, missed kaf’s #1.

    Comment by Apogee — 12/19/2008 @ 12:44 am

  9. Dave gets a life time pass to the police shooting range. Joco goes down for the max, no parole.

    Marie gets the “Citizen of the Month” award from her worthless Councilman (not necessarily Jack Weiss %-). she also gets a lifetime pass to the range, with the proviso that the best female range master trains here in weapon selection and employment, so that when “Fat Tony” gets out, he won’t want to even be in the same time zone as her.

    Comment by redc1c4 — 12/19/2008 @ 1:22 am

  10. Scenario 1: assuming joco is linked dead to rights for the crime, he is responsible for the foreseeable results of the inherently dangerous felony of residential burglary, according to the law, I believe. But I’m not sure I give him life for the death of Larry. He should be held responsible in some way however, no matter how stupid, ignorant or high he is. I’m thinking 15 years or so, eligible for parole in 10, maybe.

    Scenario 2: she should get a medal. I just watched the movie “Felon” and felt really upset that the guy ended up in state prison for smacking the dude who was burgling his house in the middle of the night, putting his wife and child in danger. Yes, the guy was running away at the time that he clubbed him with the baseball bat, but isn’t there room for flexibility in drawing the line of self-defense? I realize it was just a movie, but maybe as a side-note you could comment on the reality of that situation actually occurring…

    Marie should not have to guess about her attacker’s physical abilities, the degree of preparation he put into planning this (whether he has homies waiting to help out), or anything else while she is staring at a blade and a man who wants to use it to rape her. She should be allowed to shoot within reason. I think she did so well within reason. Let her go. In fact, let her teach other women how to defend themselves too.

    Comment by EVN — 12/19/2008 @ 1:41 am

  11. Case #1, The Lookout – Murder 1, no doubt. During the commission of a felony, a death occurred. That the deceased is one of the bad guys is irrelevant. The defendant is also dumber than a sack of rocks for getting stoned “on the job”, as it were.

    Case #2, The Jogger – Self-defense, clear as day. No charges, but I would recommend that Marie jog herself down to a reputable pistol range and learn how to shoot. The rule is: two shots to the center of mass. She was aiming a bit too low…

    There are five classes of homicide:

    – Criminal
    – Negligent
    – Accidental
    – Justifiable
    – Commendable

    Comment by cvproj — 12/19/2008 @ 1:41 am

  12. Residential burglary is a forcible felony under Illinois law. Joco is guilty of old-fashioned felony murder. Not the modern capital one. Mandatory minimum of twenty years, maximum forty years. I would give him the minimum, of which he would have to serve 85%.

    Marie is at the mercy of the prosecutor. Attempted murder (six to thirty) and aggravated battery with a firearm (mandatory minimum of twenty-five years). One to three for unlawful carry, with forfeiture of the right to own firearms. She needs a good lawyer and publicist. She does not have a clean case of self-defense because the law generally imposes a “duty to retreat” before the use of deadly force except in one’s own home. I would not charge her but many prosecutors, with their finger always on the political wind, would.

    Comment by nk — 12/19/2008 @ 4:31 am

  13. Scenario 1: Joco, as an accomplice, is responsible for Larry’s death. Murder.

    Scenario 2: While running down the alley, Marie easily could have tripped and fallen. Self defense. A commendation.

    Comment by aunursa — 12/19/2008 @ 4:43 am

  14. nk, if you get to decide, and you would not charge her, then she is not guilty in your legal world. Obviously you do not agree with the duty to retreat (not that she had a perfect ability to retreat anyway)

    But you get props for going against the flow.

    Comment by Juan — 12/19/2008 @ 4:45 am

  15. Joco shouldn’t be punished for Larry’s death, unless Joco coerced Larry into helping in in some way. Personally, I’d want to thank him for helping get rid of Larry. I do see a significant difference between a bad guy or good guy being killed in such situations.

    Nobody should be prosecuted for defending themselves, including Marie. If someone threatens your life (and evidence supports that), you should be able to defend yourself to the fullest extent you deem necessary. So even if she had killed Tony, she still shouldn’t be prosecuted. In fact, society would have been better off.

    Comment by Justin — 12/19/2008 @ 4:49 am

  16. Marie is her own worst witness, here. If she could not bring herself to say “I was frozen with fear and could not think of anything else to do”, why could she just not say nothing?

    Comment by nk — 12/19/2008 @ 5:09 am

  17. Her best hope is that her interview was not recorded and she did not sign her statement. “I don’t know what the police wrote down, sir. I only answered their questions.” But she would have to take the stand.

    Comment by nk — 12/19/2008 @ 5:13 am

  18. #1 – Felony murder, give him the max. Just because he’s an idiot doesn’t mean he gets off. He knew it was a crime to rob the guy’s house, so hes boned.

    #2 – I wouldn’t hold it against her, but I gree with NK, she’s MAYBE screwed. Depends where in IL she was when this happened… Downstate, and she may be ok, upstate and she’s hosed.

    Personally, in a case like #2, I have always known to say “I was afraid for my life, officer” and nothing else.

    Comment by Scott Jacobs — 12/19/2008 @ 5:54 am

  19. “stay the fuck there or get hurt, old man.” Who writes this dialogue? Spillane it ain’t.

    Comment by gp — 12/19/2008 @ 6:34 am

  20. I don’t agree that Joco gets any variation of murder/manslaughter. If Larry had killed Dave then it’s murder. Even if the law makes no distinction between whether it was a good guy or bad guy, it should. Joco should get the statutory maximum sentence, and I would agree that because death occurred that should be an aggravating factor as regards sentencing. But I wouldn’t say there should be a separate charge and finding.

    Second case–no charges. Fat Tony is lucky to be alive. Marie should definitely watch what she says in case she runs against an overzealous prosecutor who thinks Euro (especially British) law is just peachy. Even if charges were brought I can’t see a jury convicting her.

    Comment by Andy — 12/19/2008 @ 6:51 am

  21. Andy,

    Any death that occurs as part of a felony (be it the intended victim of the crime, or the crook), all other participants have commited “felony murder”.

    Comment by Scott Jacobs — 12/19/2008 @ 7:03 am

  22. #1 Felony Murder

    #2 I mwouldn’t charge her, but some might. I think a jury would find her NG.

    Comment by J. Raymond Wright — 12/19/2008 @ 7:24 am

  23. #1 – Joco gets a full sentence for residential burglary, but no charges for Larry’s death.

    Note – The hypothetical clearly says that actual law doesn’t apply. I get to decide what the law, and penalties, should be. While I consider it to be mostly good, I do have a few problems with the expansive nature of the current felony murder law. IMO the situation described here shouldn’t trigger it, even though it probably would in real life.

    #2 – No charges at all (and, as some have said, a commendation). My only concern, since it is said “You do get to worry about how this ruling affects all other rulings”, is that there is enough evidence to prove Tony intended to commit a crime against the victim. In this case it is assumed to be clearly evident, so no problem.

    Comment by Dan D — 12/19/2008 @ 7:45 am

  24. She does not have a clean case of self-defense because the law generally imposes a “duty to retreat” before the use of deadly force except in one’s own home.

    Not in California. Is there a duty to retreat in most other states?

    #7 is classic.

    Comment by Patterico — 12/19/2008 @ 7:46 am

  25. I don’t think he should be punished for Larry’s death. He can’t get murder one under a felony murder theory, because the victim did the killing. He can’t get murder two under an implied malice theory because residential burglary isn’t a crime which is inherently dangerous to human life.

    Nor do I think he’s morally culpable for Larry’s death. He was enabling the theft, absolutely; and the death of a residential burglar at the hands of his victim is forseeable. But he was a junior partner in the plan, in that Larry recruited him to help carry out Larry’s plan; he had no influence or control over what happened in the house, and it’s really not clear that Larry’s death, although forseeable, was a likely outcome.

    #2: not self-defense. She knew she had an escape route and knew she could outrun him. She was in no imminent danger of harm. She chose to shoot him anyway.

    Comment by aphrael — 12/19/2008 @ 7:49 am

  26. Scott at 21: in California, if the victim shoots the perp, it’s not first-degree felony murder for the other perps. See People v Washington 62 Cal. 2d 777, and its progeny. Similarly, in California, second-degree felony murder requires that the underlying felony be inherently dangerous to human life in the abstract.

    Comment by aphrael — 12/19/2008 @ 7:53 am

  27. JRM asked us to consider the ramifications in other cases and there is a trend now to abandon the strict liability felony murder rule and limit it to those cases where the malice of the actor is imputed to the co-conspirators who have joined him in a crime of violence which results in the death of an innocent person. I don’t agree with it. Larry was definitely not an innocent person but we want to deter every violent criminal conspiracy no matter who might get killed. This time it was the criminal, next time it might be Collector Dave’s neighbor from a missed shot.

    Comment by nk — 12/19/2008 @ 7:55 am

  28. Reading the other comments, I must reconsider. Is residential burglary inherently dangerous to human life? If so, then I can see a felony murder conviction.

    Dan D: sometime when I’m particularly outraged I’ll post a rant about California’s second degree felony murder rules; they seem like an egregious example of judicial activism to me.

    Comment by aphrael — 12/19/2008 @ 7:57 am

  29. Joco…Manslaughter + Burglary, both to the max & to run consecutively – this guy should never be allowed out, he’s a walking vegetable.

    Marie…Negligent Discharge of a Firearm, $20 + costs, and a recommendation of a good shooting coach.

    Comment by Another Drew — 12/19/2008 @ 8:01 am

  30. #24 Patterico:

    Is there a duty to retreat in most other states?

    Varies. Florida (state of issue of my primary CWL) recently changed the statute to no longer require a duty to retreat in a public venue, and reinforced the “castle doctrine” to specifically include one’s automobile.

    Arizona’s suggested CCW Instructor’s guide also makes very clear that a CCW holder involved in a shooting should NEVER make a statement without counsel, noting that LE officers involved in shootings often have the luxury of an off the record debriefing that civilians do not have. They suggest only confirming the obvious during initial LE contact after the incident.

    Joco is an idiot, but not guilty of murder. He does have some culpability for Larry’s death so an additional two years on top of what he gets for residential burglary wouldnt’ seem out of line to me.

    JRM’s hypothetical doesn’t tell us how far away “in front” of Marie Fat Tony is: but if he steps “in front” of me, say within 15 feet, openly wielding a knife (or a box knife, for that matter) then he gets a three shot salvo of Buffalo Bore® .38 S&W SPL +P, no questions asked. Having participated in too many Tuller Drills to count, there are just too many intangibles to say that Marie could really retreat safely. In her haste to get away, she could easily twist an ankle while turning toward an avenue of escape, for example, debilitating herself enough that Fat Tony might be able to seize upon her.

    Too bad for Fat Tony, but I don’t hit testicles either.

    Comment by EW1(SG) — 12/19/2008 @ 8:41 am

  31. Patterico #24,

    Here’s Illinois’s self-defense statute:

    (720 ILCS 5/7‑1) (from Ch. 38, par. 7‑1)
    Sec. 7‑1. Use of force in defense of person.
    (a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

    It revolves on “necessary”. Which is a jury question. I agree that “duty to retreat” may be an overstatement. Duty to escape?

    I can tell you that although residential burglary is … well … almost … law that it is a forcible felony, a man got twenty-five years for wounding two burglars walking out of his house with his property. And that a Chicago off-duty cop went through a judicial lynching, and served all his sentence for involuntary manslaughter, armed violence and official misconduct, for shooting a “homeless man” recently released from prison for robbery and rape, who had assaulted him and his wife, before the Illinois Supreme Court reversed his convictions.

    Comment by nk — 12/19/2008 @ 8:42 am

  32. In that light, nk, I would likely have to at LEAST give her probation for somewhere between 3-7 years, and she’s have to give up the guns.

    Obviously, shooting the guy was not “necessary”, except from a Darwinian standpoint, which sadly is not a legal defense.

    Comment by Scott Jacobs — 12/19/2008 @ 8:56 am

  33. I blame it on the Karate and Doberman Pinscher lobbies, Scott. Although in California dogs are deadly weapons, aren’t they?

    Comment by nk — 12/19/2008 @ 9:04 am

  34. Larry is responsible for his own death. Had it been the homeowner or another innocent killed, Joco would have a much bigger problem. But Larry got himself a case of death by misadventure. No harm, no foul.

    Marie should not be punished, but she should be required to take some shooting classes. Always aim for center mass, Marie. Though I admit that shooting Fat Tony’s nut off is rather poetic justice.

    Comment by Pablo — 12/19/2008 @ 9:07 am

  35. Link.

    Comment by nk — 12/19/2008 @ 9:07 am

  36. Case #1, LWOP for Juco.

    Case #2, Lock Fat Tony up for ADW, Attempted Rape, and being a sexual preditor. About 30 years on a treadmill and the San Quentin version of Bob and Jillian from “The Biggest Loser”.

    For Marie, A .357 Desert Eagle, a full clip of hollow points, and an invitation to be at the door when Fat Tony leaves the joint.

    Comment by PCD — 12/19/2008 @ 9:13 am

  37. Scott:

    “Personally, in a case like #2, I have always known to say “I was afraid for my life, officer” and nothing else.”

    On more than one occasion?

    Comment by Marc — 12/19/2008 @ 9:22 am

  38. NK: I find that odd. I would put the emphasis on reasonably; that is, the two questions ought to be: did he believe it was necessary, and was that belief reasonable? Was it actually necessary shouldn’t even enter into the discussion.

    Comment by aphrael — 12/19/2008 @ 9:26 am

  39. aphrael in 25. said:

    She knew she had an escape route and knew she could outrun him. She was in no imminent danger of harm. She chose to shoot him anyway.

    If being taken hostage at knifepoint does not mean that you are in imminent danger of harm, what does qualify? If it had been a gun, would the bullet have needed to be in the air before the threat was imminent?

    Comment by Justin — 12/19/2008 @ 9:37 am

  40.      OK, JRM, as I understand your exercise, what the law actually is does NOT matter. Hey, I thought that was the rule for the last exercise. As with the last exercise, I have not read any of the other responses before posting this one.
         Redline for Joco: While I applaud the felony murder rule, I personally think it generally should NOT apply when a partner in crime, as opposed to a victim, is killed in the course of the crime. So I think Joco should not be punished for Larry’s death. (Note, had Joco been smart and Larry real dumb and Joco had set things up so that Larry was put in substantially more danger than Joco, I might come to a different conclusion.)
         Self defense for Marie: Fat Tony was clearly trying to, at the very least, kidnap Marie. Anything she did to reduce Fat Tony’s likelihood of success while Fat Tony still had ANY chance whatever of success is permissible self defense. Neither Fat Tony nor society in general should get to choose what type of self defense Marie uses. So, Marie should neither be punished for shooting Fat Tony nor be liable to Fat Tony for any damages he suffered.

    Comment by Ira — 12/19/2008 @ 9:37 am

  41. Love #1….

    Joco – stupid for being there and stoned, and present (in body) when his buddy dies. Can you give him extra time for being in refer land? No extra time due to the death of his buddy. If homeowner was killed, then put him away for life.

    Marie – No punishment…the press will be at her doorstep after the crime and during the trial (punishment enough), why send her away for defending herself?

    Comment by fmfnavydoc — 12/19/2008 @ 9:40 am

  42. Something to tie in to the Joco case…out in Yucca Valley, CA three young men (17, 18 and 19 years old) had been terrorizing an older man by breaking into his house (nothing taken in previous incidents, just going in and trashing out the place). Last incident happened over a year ago, the 17 and 18 year old (both brothers) smash though the door, but the old man was at home and greeted them with a .45 pistol, pulled it out and started shooting at them. Both boys ran out of the house (17 year old was hit three times and died in the driveway, 18 year old was hit in the arm, managed to gt in the car driven by the 19 year old). Dad of the two brothers found out what had happened and turned the older son and his buddy in to the sheriff. Sentenced 6 months later for both was 5+ years for the home intrusion, no thing for the death of the younger brother. Judge felt that the death was enough of a burden for them to deal with…

    Comment by fmfnavydoc — 12/19/2008 @ 9:47 am

  43. aphrael #38,

    You’re right. I adopted the fact situation, here, for my analysis. There is strong evidence (dumb broad) from Marie herself that she did not believe it necessary.

    Comment by nk — 12/19/2008 @ 9:51 am

  44. Like it or not joco was an acomplice in a crime that resulted in the death of an individual. He’s guilty of some level of homicide and does at least 10-20.
    Marie gets no punishment, just an “are you okay ?” and “Will you need a ride home” and ” If you need to speak with someone counselors are available”. Someone mentioned a “duty” to retreat, to which I say Bulls**t, she was accosted and had her life threatened. Fat Tony is fortunate he is not at room temperature.

    Comment by Edward Lunny — 12/19/2008 @ 9:55 am

  45. I am not a lawyer. But here goes:
    #1-Joco’s a piece of trash, quite obviously, and guilty as hell of burglary. If Dave had been hurt, I’d be more tempted to try and hit him with felony murder or similar. The plot was Larry’s idea, (though Joco went along with it,) and Larry put himself in the line of Collector Dave’s fire. (The fact that Joco’s apparently a lousy lookout didn’t put Larry in the home.)
    I call it manslaughter + burglary, 20 years minimum. And Joco is very, very lucky at that, and should thank Collector Dave for being quick on the draw. If Dave had been killed, Joco would swing.

    #2 Yeegh.
    I live in FLA, where we have a “castle law,” no duty to retreat, on your own property. Which she wasn’t on.
    I feel for her, and really, really don’t want to dissuade people from defending themselves.
    But at the same time, I don’t want Dodge City out there, either.
    A year of (misdemeanor) probation for her, with a very stern admonition that her attitude isn’t helping. If not for the “not backing down” thing, she’d get off scot free. If she clears the probation, set the plea aside.

    Comment by jdub — 12/19/2008 @ 9:57 am

  46. First case: Joco should get life for murder, parole possible.
    Second case: Give Marie a medal and Fatso goes for 20 years for attempted rape.

    Comment by Ken Hahn — 12/19/2008 @ 10:03 am

  47.      Having re-read my comment (#40) I need to edit just a bit: “is permissible self defense” should instead be “should be permissible self defense.”
         Having read all the comments (i.e., up through #45), I have the following thoughts:
                 1. Those of you who responded in a manner which only reflected what the law is in a particular jurisdiction have not given us an intended benefit of the exercise – i.e., our receiving your opinion of what the results should be for the scenarios presented by JRM if you were writing the law.
                 2. Many thanks to those of you who contrasted your opinion of what the law should be for the presented scenarios with what the law actually is. Those are very interesting comments.

    Comment by Ira — 12/19/2008 @ 10:15 am

  48. Joco. Is there such a thing as felony negligent homicide, rather than felony murder? Probably not. If he’d been less negligent about his duty to keep watch, is my thinking, Dave would still have his stuff and not have the Good Citizen Award. Max on the burglary, concurrent with the minimum on the felony murder charge he gets (if there is a felony negligent homicide, he’d get the max for that.)

    Marie also gets a Good Citizen Award, along with good training paid for by the locals, in firearms selection and use. Fat Tony is probably going to be found guilty of aggravated rape with a weapon, and gets the max.

    I wouldn’t subject anyone to a police range unless they were a LEO. Too many bad habits on display.

    Both get free concealed carry permits for life, out of fear that other criminals will attack them.

    Comment by htom — 12/19/2008 @ 11:10 am

  49. #45

    A man with a knife within 10 or 15 feet is a deadly threat, even to a trained police officer with a gun, vest, billy club, and mace. Marie should not have to prove she could not outrun her attacker or it’s “dodge City” in the courtroom. She had no way to know if he had a gun, helper, training, etc until after the rape. He threatened her with a weapon and should bear full responsibility for what happened.

    If this seems far fetched I suggest you look at the trend to sue police involved in clean shoots. The lawyers claim that while the officer WOULD have been justified in the shooting had it been on purpose, the gun went off by accident just before the officer meant to shoot making it negligent death and justifying a big civil payout to the family. This is one of the reasons for going double action only on police firearms.

    Comment by Machinist — 12/19/2008 @ 11:38 am

  50. 1. Yes. You don’t act as lookout (however poorly) unless you expect that someone may show up, thus causing a confrontation. Ta daaa. Congrats, Jaco, you’re going to jail for murder.

    2. Yes. Although the proximate cause of the act was fat-boy’s attempt (again, however poorly executed) at rape, Marie has a responsibility to act prudently. Popping off with lethal force (although the damage caused was not lethal, she hit fat-boy awfully close to his femeral artery, which likely would have been lethal) when she had other viable options with which to avoid harm makes her culpable, at least in part.

    Comment by Chris — 12/19/2008 @ 11:39 am

  51. Hmmm, hang on, mis-read who died. Homeowner shoots perp, not the other way. Ok, Joco gets nailed for residential burglary. That’s 60 days. Larry did not carry a weapon into the house. Take Joco’s joints and the remote control away. If he’s gonna watch TV, make it either Barney re-runs or the Weather Channel.

    Comment by Chris — 12/19/2008 @ 11:54 am

  52. As far as “Dodge City”, may I quietly point out that it was much safer for a woman to walk down the street in the old West’s Dodge City than it is in our more “enlightened” cities today. And this without laws against guns, drugs, and spanking.

    Comment by Machinist — 12/19/2008 @ 12:14 pm

  53. No punishment for either scenario of bodily injury to the perps.

    Marie is to receive a medal from the mayor, and an option on a hollywood movie.

    Comment by Ed — 12/19/2008 @ 1:02 pm

  54. Those of you objecting to Marie’s use of potentially deadly force seem to think that Fat Tony’s waving a knife at her is not deadly because she might successfully run away?

    I am confused that some think she should not have shot him. I think he’s made a potentially lethal assault, even if he doesn’t mean to — he could slip and fall, severing her femoral artery on his way down, for example — and responding as she did (albeit poorly) with deadly force seems to me to be entirely appropriate. She’s not being paid to take risks in such encounters; she is entitled to defend herself.

    Comment by htom — 12/19/2008 @ 1:06 pm

  55. These are interesting exercises, JRM. Good posts.

    Comment by DRJ — 12/19/2008 @ 3:01 pm

  56. So, who the hell can smoke “A few joints” in the short time alloted to committ a home burgle?

    Second, who told anybody about being some sort of “lookout”?

    Sounds to me like the kid got loaded up in a parked car.

    Larry the lackey should have done some investigation of his intended perp first. (some PD’s could used the same advice as well). Don’t temp a vet as some things they might miss and eagerly await the opportunity re-live, especially in their own home! He got his Darwin award anyway.

    Now as for that little tramp with the two shooter! Blood thirsty vixen she is. Baiting unworthy mating partners with her scantily clad body, bouncing breasts running around in a full public gender baiting display. Intentionally chasing a fat guy into an alley with a knife then only shooting off one of his nuts! She needs some Special High Intensive Training in taking the follow-up shot!

    She also needs to come to the understanding the importance of clipping all of the gene pool of the victims of her gender biased activities. Why did she not take the knife and finish the job? Criminal I tell ya!

    Movies are terrible trainers I tell ya! They train women to shoot, or club, once drop the gun/club, then attempt to step over the very much UN-dead assailant doing nothing but getting themselves into more trouble!

    Fat stupid Tony got only half of what he should have! Can you imagine bringing a knife to a gun fight? Stupid and lucky Tony is lucky she did not come over and smash the rest of his bloody manhood before she stepped over him!

    Comment by TC — 12/19/2008 @ 3:11 pm

  57. There is strong evidence (dumb broad) from Marie herself that she did not believe it necessary.

    Hmm. In that case, she clearly didn’t reasonably believe it was necessary, and under your state’s statute, has no self-defense defense.

    This actually jibes pretty well with my sense of moral culpability: if she didn’t believe she was in danger, and just shot the guy because she preferred to do that rather than to run, then she’s done wrong. It would be different if she *did* believe she was in danger.

    Comment by aphrael — 12/19/2008 @ 3:18 pm

  58. For the record, I think anyone with five or 10 feet of me waving a knife at me is an immedeat threat to my safety.I don’t KNOW that I can get away – I might suspect it, but I do not KNOW it. Shooting is the only way I could be sure.

    I, however, would not a) only hit him in the crotch nor b) say anything besides “I was afraid for my life, officer”.

    Comment by Scott Jacobs — 12/19/2008 @ 3:40 pm

  59. Joco- Where did that name come from? Anyway. Manslaughter plus maximum sentence for home invasion in whatever jurisdiction, according sentencing guidelines. To include treatment for Marijuana abuse and psych evaluations throughout period of incarceration.
    Marie- In Florida we have no duty to retreat in a public place, especially our homes and cars, so my opinion is based on what little real law I do know.
    Besides being a poster child for annual proficiency standards for CCWs, she walks. While Fat Tony looks like he could have been outrun, there are many “Fit Fat” people, and how is she supposed to assess that in those few fleeting moments of deadly threat?Feh. She walks with the Mantra of the Mossad drilled into her head. “Pom, Pom center mass.”

    Comment by pitchforksntorches — 12/19/2008 @ 3:57 pm

  60. machinist #52 the phrase is
    “An armed society is a polite society.”

    Comment by pitchforksntorches — 12/19/2008 @ 4:06 pm

  61. These are fun exercises, JRM. Good to know all that money we’re paying you goes to good use. :)

    I had previously posted (#20) and my post was based in large part on what I think the law should be, not what it is. Thus I think Joco doesn’t get murder, although I think that because death occurred that should be an aggravating factor in sentencing. He should still go away for a very long time. And had it been a situation where he was the smart one and Larry not, I would look upon that differently.

    Having someone within 15 feet of you with a knife sounds to me like your life is being threatened, and Marie’s response was lacking (should have gone for center mass as others have said.) But more importantly, she needs CCW training and also needs to probably keep her mouth shut under questioning. She’s only going to dig her own grave if she gives good reason for people to think that she could have gotten away without shooting.

    Actually, for me, that brings up a question: if your life was really threatened, but you didn’t think it was yet acted as though it were, does that make you culpable? In other words, even though she’s being flip to the police about everything, what if Fat Tony had been an expert knife-thrower and pegged her in the chest with it? Appearances can be deceiving, so she may not have perceived the extreme danger she was in, but that wouldn’t make it non-existent.

    Comment by Andy — 12/19/2008 @ 4:58 pm

  62. #1
    30% of the proceeds equals 30 years.
    That things went south with his plan is wonderful.
    Collector guy should get a medal and free property taxes for the rest of his life.

    Why should she interrupt her run?
    If she gets attacked; shoots the guy, and then feels the need to do whatever makes her feel OK, I’m OK too.

    Tony gets 25 years…. he’s lucky my vote on his medical needs isn’t in play or the other nut would go missing during the state financed repair.

    Comment by SteveG — 12/19/2008 @ 5:12 pm

  63. Marie’s case reminds me of a Texas tort case I studied in law school. Obviously it isn’t a criminal law case so they aren’t really analogous, but bear with me.

    As I vaguely recall the law school case, a driver sued her car’s dealer and manufacturer for negligence and a defective product after the accelerator on her car became stuck while she was driving on the highway. She was unable to dislodge the accelerator and eventually stopped by running into a tree. Defendants claimed the driver was negligent because she chose to stop her car by wrecking it instead of using a safer method such as shifting into neutral or driving until she ran out of gas. The court held the driver had no duty to think of the best solution in a dangerous situation that wasn’t of her making.

    One of the reasons I think some states have moved away from a duty to retreat is that crime victims shouldn’t be treated any more harshly than tort victims like the driver of that car. In other words, they shouldn’t have to pick the best option in the stress of the moment. The only thing the victim should have to worry about is whether the other party poses a legitimate threat to a reasonable person — and a man waving a knife is, in my judgment, a legitimate threat to a reasonable person.

    Comment by DRJ — 12/19/2008 @ 5:16 pm

  64. nk – However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

    Do the actions of the knife wielding, rape threatening Fat Tony count as a forcible felony? If so, shooting him would be necessary to prevent the commission of the forcible felony.

    Comment by Apogee — 12/19/2008 @ 7:10 pm

  65. #63 DRJ:

    The only thing the victim should have to worry about is whether the other party poses a legitimate threat to a reasonable person — and a man waving a knife is, in my judgment, a legitimate threat to a reasonable person.

    While nk chose to highlight “necessary” in the statute he quoted, the emphasis of most of the training that I have received has on whether a course of action is “reasonable.”

    Let’s face it, reasonable people disagree all the time~and what seems reasonable to me is most certainly different than somebody who doesn’t share my life experiences might find reasonable. Both nk and aphrael have seized on Marie’s impression that she had a safe route of escape, which, without JRM supplying a little more detail, I think is unknowable.

    As I mentioned above, if Fat Tony threatened me with a knife at a small distance, my response would be automatic~and not related to my mental state at the time. It would simply be a result of my training. And even though I might not actually feel as threathened as someone else in a similar situation, my emotional state would be irrelevant in determining my actions.

    Congrats to JRM for a thought provoking discussion.

    Comment by EW1(SG) — 12/19/2008 @ 8:18 pm

  66. 1. Joco the lookout. Meh, don’t have a well thought out opinion on this.

    2. Marie vs. Tony. Reimburse Marie for the cost of her bullet and give her the money to buy a real gun. Seriously, it’s simple self-defense. Once Tony pulls the knife Marie doesn’t have an obligation to examine every possible course of action.

    Comment by Arthur — 12/19/2008 @ 8:31 pm

  67. At the point that Fat Tony is waving a knife at, and telling his victim-to-be that she’s coming with him, isn’t he committing (or hasn’t he already committed) a felony assault with a deadly weapon, as well as attempted felony kidnapping?

    Comment by htom — 12/19/2008 @ 8:35 pm

  68. EW(1)SG,

    Part of what lawyers do (on both sides) is try to convince the judge/jury what is and isn’t reasonable conduct. Thus, it’s entirely possible that what’s reasonable in Texas would not be reasonable in New York or California, or what’s reasonable in a rural area may not be reasonable in a big city.

    However, tort law also recognizes a concept called the “prudent man” standard. The concept is that there is a person who is the epitome of a reasonable man, and we measure reasonable conduct based on what he or she would do in a given situation. The person doesn’t have to be perfect but s/he should be thoughtful, careful, and prudent … and in general that’s what we expect people to strive for in their daily lives.

    So the question in court becomes “How close does a given jury expect the participants to come to that standard?”

    Comment by DRJ — 12/19/2008 @ 9:25 pm

  69. EW1(SG),

    Sorry for the typo with your name. I can’t type tonight.

    Comment by DRJ — 12/19/2008 @ 9:29 pm

  70. Let me get this straight. Unless someone overheard Larry and Joco, or one of them was a blabbermouth, how the hell do you prove to a jury that the guy the cops found stoned in the car had any knowledge of what Larry was up to?

    Even a weak defense like: “Last thing I remember we were in Burbank” gets him off. You have to prove that had KNOWLEDGE of what Larry was up to to get him for anything more than smoking dope in public.

    Comment by Kevin Murphy — 12/19/2008 @ 10:14 pm

  71. Do the actions of the knife wielding, rape threatening Fat Tony count as a forcible felony? If so, shooting him would be necessary to prevent the commission of the forcible felony.

    Shooting a criminal in the testicle is necessary to prevent the commission of the forcible felony? I don’t think “self-defense” is carte blanche for genital mutilation.

    Comment by CliveStaples — 12/19/2008 @ 10:15 pm

  72. I don’t think “self-defense” is carte blanche for genital mutilation.

    Genital mutilation is it’s own excuse… :)

    Comment by Scott Jacobs — 12/19/2008 @ 10:21 pm

  73. It would be an unusual defense that although the defendant believed that the use of deadly force was not necessary, that belief was unreasonable because it was in fact necessary no matter what the defendant says.

    I’ll stick with my first comment, that Marie is at the mercy of the prosecutor but that I would not charge her. But I don’t have every black politician and community organizer in Chicago, whom I need for my reelection, pushing me to prosecute her.

    Comment by nk — 12/19/2008 @ 11:04 pm

  74. nk – just to nitpick –
    How about,

    The defendant did not believe that the use of deadly force was necessary to avoid the forcible felony, but that the use of force was necessary to prevent the forcible felony against not only herself, but also against another citizen who had not happened upon the scene yet.

    Comment by Apogee — 12/19/2008 @ 11:30 pm

  75. Hmm, I don’t know. That’s policy and that’s made by the legislature. I don’t know that the legislature has allowed me that much discretion.

    But not to paint the picture too darkly for poor Marie, self-defense is a much better sell when the “victim” is alive, because then you have him as the complaining witness, along with all his criminal record, instead of, were he dead, his mother as “a life and death witness” showing his baby pictures to the jury. But Marie will still need a good lawyer.

    Comment by nk — 12/19/2008 @ 11:42 pm

  76. The Derringer is a very inaccurate weapon. She could have been aiming for his gut and nailed a testicle. I’ll bet he can’t get it up anymore, so she probably cured his sexual aggression habit.

    She walks.

    Comment by Hazy — 12/20/2008 @ 4:23 am

  77. And to correct myself one more time, Marie does not need to “sell” self-defense — she needs some evidence that it was self-defense to get an instruction and the instruction will say that it is the prosecution’s burden to prove beyond a reasonable doubt that the force used was not justified.

    Comment by nk — 12/20/2008 @ 8:36 am

  78. Marie should be able to take the fight to him if she chooses. Fighting with weapons is about winning decisively permanently.
    She went on with her normal routine and showed the courage to not let the attack disrupt her life. Good for her. Maybe that will lighten any combat related stress she may feel in the future.
    I’d name the running course at the park after her

    Comment by SteveG — 12/20/2008 @ 10:00 am

  79. In my world…

    1) Joco gets punished for the burglary, but not the death of Larry. I agree with some of the above commenters that it’s bizarre the law would make no distinction between whether the person killed was a bad guy shot in self-defense or a good guy murdered by the thief.

    2) Marie goes free with a pat on the back from the cops, who are then inspired to go work on their own skills at the range.

    Comment by Dan G. — 12/20/2008 @ 11:02 am

  80. DRJ:

    tort law also recognizes a concept called the “prudent man” standard.

    That’s actually the concept I was referring to, and one used in training officers.

    It’s rather a double edged sword, as I mentioned above~within certain constraints I most certainly would have responded to Fat Tony with deadly force, having a very good understanding of just how deadly even a small knife wielded by an otherwise relatively less dangerous individual can be.

    The problem is, as you mention, presentation to a jury and their perception of how a reasonably prudent person should have behaved.

    But, better to argue the merits in court than attend my own funeral.

    Comment by EW1(SG) — 12/21/2008 @ 7:36 pm

  81. Absolutely.

    Comment by DRJ — 12/21/2008 @ 9:43 pm

  82. How was Joco Tied to the crime. Couldn’t have been close to the house or Dave would have noticed him going in. Did Larry make a “dying declaration” implicating Joco. Unless Joco was stupid enough to open his mouth (a distinct possibility) or had the car running (DUI?) I would have to ask how he was even tied to the late Larry? If they can tie him in, murder 1.

    As for Marie, good shot! Even you were aiming center mass.

    Comment by Michael Giles — 12/22/2008 @ 1:54 am

  83. #1) As soon as the guy breaking into the house picked up one of the guns in order to steal it, he has committed armed burglary. As soon as the homeowner comes home, it is an armed home invasion.

    Because of that, the homeowner is 100% justified in his actions. The “lookout” would be hard pressed to be convicted, but should be liable in the death of his partner.

    #2) Self defense is a human right and there should be zero duty to retreat in any circumstances. The lady should be given a presidential commendation and her own talk show so that she can share her experience with self defense with others.

    Comment by chris — 12/22/2008 @ 3:54 am

  84. Given the conditions of contest . . .

    1. Nah. Punish him for harm to victims, not to his coconspirators.

    2. Self-defense. The obligation to retreat is the law being an ass. As a practical matter, states that don’t have the obligation to retreat — Utah, frex; MN, before the courts invented it — don’t see an epidemic of non-retreat killings.

    Comment by Joel Rosenberg — 12/22/2008 @ 4:23 am

  85. In Texas, we can use:


    (a) A person is justified in using deadly force against another:

    (A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

    (B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

    And, we don’t have to retreat!

    (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

    Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

    when and to the degree he reasonably believes the deadly force is immediately necessary:
    (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

    (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and


    Comment by Texian — 12/22/2008 @ 8:34 am

  86. Scenario 1:

    Although Larry was apparently unarmed when he broke in, it seems that Jocko knew one of the items being stolen was antique guns. These guns could knowingly (by Jocko) be used to threaten Collector Dave.
    Therefore, yes Jocko should be tried for Murder regardless of what percentage of profits he was promised by Larry.

    “Antique Guns” thrown into the mix is what made up my mind.

    Comment by Oiram — 12/22/2008 @ 10:06 am

  87. dave is guilty of manslaughter. Joco of attempted burglary.
    Pretty simple.
    A court of law is not a court of revenge.

    Tony is guilty of attempted rape. Does Marie have a license to carry? And if she were wearing heels she might have a claim to self-defense but she wasn’t.
    Law is oversimplification. It needs to be to function. It’s not perfect and we should not lie and pretend it should be.

    They should make DA’s and Public Defenders’ office have the same revolving staff. Each PD or ADA gets two years before a switch. Back and forth, for the length of your time on the job.
    The Joe Friday act gets annoying.

    Comment by sleepy — 12/22/2008 @ 11:51 am

  88. Joco’s definitely culpable in the death of his accomplice, but it’s a hard case to win.

    Marie is guilty of carrying a loaded firearm in public, a misdemeanor, but she won’t be elligible to possess a firearm for 10 years after her conviction. Unless she had a CCW, then she’s clear, no crime.

    Comment by Patrick — 12/22/2008 @ 3:01 pm

  89. Joco’s guilty of being an accessory to a crime, but he has committed no criminal act in failing to execute his part of the agreement by failing to carry out his lookout duties. No culpability whatsoever in Larry’s death from either a criminal or civil perspective. (He’s probably guilty, however, of breaking some “honor among thieves” code of ethics, and might find himself the target of some of Larry’s friends)

    We don’t know if Marie is guilty of illegally carrying a firearm because we lack enough information on whether she had a permit for a concealed weapon — therefore such a charge for this crime is possible. Marie admits that she knew that retreating from the scene would allow her to escape harm, yet she freely discloses that she shot Tony because she essentially felt she was justified. Too bad she is wrong. She elected to shoot someone when clearly the act of shooting in self defense is only not a crime when no other alternative exists. Although Tony probably did deserve to be shot in moral court, in criminal court it will be found that although Tony committed a crime in attempting to rape or harm Maria, Maria is also guilty of a crime by assualt with a deadly weapon without it being her last course of action to escape the threat.

    Comment by Jessica — 12/22/2008 @ 7:37 pm

  90. Shooting to stop has to be the second-to-last course of action; shooting to kill would be the last. Fleeing would be, presumably the fourth-to-last, as displaying & warning would be the third.

    Comment by htom — 12/22/2008 @ 10:07 pm

  91. #1. Involuntary manslaughter as I think it is reasonable to assume that Larry wouldn’t have committed the crime without Joco being there, certainly Joco had opportunity to talk Larry out of doing it. Joco bears some responsibility for his death.

    #2. If she was permitted to carry the weapon then I see no problem with using it when threatened with great bodily harm. She didn’t have time to understand his intent, after raping her he may very well have killed her to prevent identification of himself. A knife is a close quarter weapon but it can be thrown with deadly results so she was justified in her use of the derringer.

    Comment by GoDaddy — 12/22/2008 @ 11:32 pm

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