In my notes from first semester, 2nd degree murder is defined as killing with "implied malice or gross recklessness." 6 people stomping on someone who is lying prostrate on the ground could support a finding of implied malice or gross recklessness for the safety of the person they were kicking. Given that the victim sustained a concussion, it is probably partly luck that they didn't break his neck or cause him some brain injury. I am not saying that the prosecutor was correct in this case or that justice is served. I really don't think anyone in this whole story is a hero or in the right as far as I've heard. But I do think attempted 2nd degree murder is at least supportable from an ethics standpoint. I have read cases where attempted murder has to be supported by intent to kill, not just attempt to cause grievous bodily harm, but the prosecutor could argue that although they began by intending to just hurt the kid, as they kicked him while he was lying unconscious on the ground they formed an intent to kill him and by continuing to kick, they acted on that intent. I can also see the argument for shoes as being an aggravating factor. If they were kicking him in flip flops or something, they would have injured their feet before doing the victim serious mortal injury. Not so if they are wearing even slightly protective footwear.
Six people ganging up on one, repeatedly kicking him until he is unconscious couldn't be construed as intending to kill him? This is what I don't understand (maybe because I haven't taken crim yet). How can you get more "attempting to kill" than six people kicking an unconscious boy while he's on the ground? I guess they could have been shooting at him or stabbing him?
I think I understand better now, but it still seems like you're leaping from "very hard to prove" to "could never have proved (proven?) it in this instance" to "acted in bad faith" to "acted in bad faith due to being a racist."
Ah, I see. So it was like the Duke case then--zealous prosecutor alleges something in which he has no confidence for racist reasons.
Quote from: A. on September 23, 2007, 04:34:04 PMWhat's On Language?Safire's column in the Times Magazine. It seemed like something that would float your boat.
What's On Language?
*Gengis is like Jesus, no?
But his general gist is correct: Prosecutors often bring more serious charges, knowing that they will later try to plead the the defendant to a less serious crime. There is a difference between bringing unsupported charges and bringing the most severe supported charges.
I know of one case we read where a person was successfully convicted of attempted second degree murder, where the intent was gross recklessness, but it was overturned on appeal. I forgot the last bit when I posted. But intent can be inferred by actions and intent to kill could be inferred by the kicking while the guy is down, no? I know it could have had the guy actually died. Did the attackers stop themselves or was the fight disrupted by an outside party? That would matter, because if they stopped themselves == no intent. If the attack was disrupted, then maybe there is an argument they intended to kill the guy.
They could not be proved in this case. Louisiana law is really clear on the specific intent to kill needed for attempted second-degree murder and that even battery with a dangerous weapon doesn't qualify. There was no evidence of attempted second-degree murder, no evidence of conspiracy to commit second-degree murder, no likelihood of finding such evidence, and therefore no probable cause.I infer the prosecutor's bad faith based on other evidence beyond the inappropriate charge. This is the area of my research for the pro bono project, so I can't discuss it in too much detail. Nonetheless, the news accounts make it pretty clear that the DA was out to get at least Mychal Bell, that he made several racially insensitive comments, and that he did not investigate this incident or the previous incidents to professional standards.