Thoughts on the Jena 6

[Miss P]

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.

The shoes argument is an interesting one, but I think it's gotten twisted in this thread.  The issue in Jena is that use of a "dangerous weapon" is an element of the aggravated battery charges the boys faced when the attempted murder charges were dropped.  It isn't an aggravator; it must be proved beyond a reasonable doubt in order to secure a conviction on that charge at all.

I understand your reasoning on the second-degree murder charge, but an inchoate crime doesn't import its mens rea standard from the underlying crime.  There are no reckless and knowing attempts.  Attempted murder -- even attempted second-degree murder -- requires a specific intent to kill the victim or an intent to engage in activity that is practically certain to result in death.  Since the second form of specific intent should be nearly impossible to prove in cases where the victim did not die or escape death by some miraculous circumstance (the living body undermines "practical certainty"), attempted second-degree murder requires an intent to kill, not merely an intent to inflict great bodily harm.

[Miss P]

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? 

It isn't generally, no.  It's construed as an intent to cause bodily harm, aggravated battery. 

Attempted murder requires a specific, subjective intent to kill.  This means that there must be evidence that the boys actually intended to kill the victim.  The act itself can only serve as such evidence if it was practically certain to cause death.  Kicking him until he was unconscious was not practically certain to cause death, and it did not, in fact, cause death. The prosecutor could also prove attempted murder by introducing other evidence about the boys' intent to kill* if it were available, but in this case, it was not (because the boys did not intend to kill).   The elements of attempted second-degree murder are very difficult to prove (at least where the second-degree murder is a reckless homicide as opposed to a drug sale or other statutory definition).

Also, just as a note, and not to minimize the boys' culpability, there's no evidence that they kicked him after they realized he was unconscious.  Some reports say they stopped when they found out he was unconscious; some say that they never even knew he was unconscious; and some say that he was not unconscious.


*ETA: e.g., credible threats to kill, use of a deadly weapon, confessions of intent to kill

[Miss P]

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." 

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. 

[Miss P]

Ah, I see.  So it was like the Duke case then--zealous prosecutor alleges something in which he has no confidence for racist reasons. 

No, because the racial dynamics of the cases are entirely different.  You're smarter than this.  And seriously, get over it.

In any case, I don't know why you're directing this at me.  You well know that I am against abuses of prosecutorial discretion in all cases, including those targeting rich white boys.  I'm not the one toying with applications to the DOJ honors program, eh?

[A.]

What's On Language?

Safire's column in the Times Magazine.  It seemed like something that would float your boat.

It probably would.  Is it online?

[Gengiswump]

*Gengis is like Jesus, no?

I should hope so.

(Tag.)

[Burning Sands, Esq.]

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.

You are confusing the elements of Attempted Murder with Murder, but I see Miss P has already cleared that up.  Suppose the victim in this case had actually died, then you would have a valid argument in support of the DA charging the 6 kids with Murder based on their impliedly malicious or grossly reckless behavior.   However, nobody died here.  Moreover, as Miss P pointed out, there was no evidence that the 6 kids possessed specific intent to kill the victim here.  You can't attempt murder with mere reckless or negligent behavior in criminal law.  "Attempted" anything requires a premeditation on the part of the perpetrator that evidences that they specifically and purposely intended to achieve the crime at issue.  The fact that the Jena 6 were charged with a crime requiring such a high level of intent under the given circumstances bespeaks of bias on the part of the DA.

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.

Ah, yes!  The Cardinal Rule of noob posting interpretation.  I must concur in the interpretation.

[aerynn]

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.

[Kirk Lazarus]

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.

Don't a lot of states do this when alcohol is involved in accidents?

[Burning Sands, Esq.]

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. 

TITCR!!!!


And I'll add the following from Louisiana Law:

La. Rev. Stat. Ann. § 14:27 - Attempt
 
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

B. (1) Mere preparation to commit a crime shall not be sufficient to constitute an attempt;

Specific intent important element:

It is essential to an attempt that there be a specific intent to commit the crime. The test appears to be--would defendant have been guilty of a crime if his intention had been fully consummated? Gross negligence or constructive intent (as in the felony murder doctrine) will not suffice.

NOTES OF DECISIONS

Evidence was insufficient to support finding that defendant inflicted stab wounds on victim's back and, thus, evidence was insufficient to support conviction for attempted second-degree murder arising from altercation between two groups of individuals, even though defendant attempted to stab victim and defendant originally might have thought that he stabbed victim; victim testified that he was stabbed from behind while he was on top of defendant, who was on his stomach and/or side, codefendant admitted stabbing victim, and surgeon who cared for victim testified that defendant could not have inflicted victim's stab wounds because of victim's size and defendant's position under him. State v. Runyon, App. 3 Cir.2005, 916 So.2d 407, 2005-36 (La.App. 3 Cir. 11/2/05), writ denied 936 So.2d 207, 2006-1348 (La. 9/1/06), writ denied 942 So.2d 526, 2006-0667 (La. 11/17/06), appeal after new sentencing hearing 944 So.2d 820, 2006-823 (La.App. 3 Cir. 12/6/06).[emphasis added]

Evidence that defendant participated in robbery and that shot was fired during altercation between accomplice and victim, without more, was insufficient to show that defendant specifically intended to kill victim or that defendant and accomplice intended to utilize deadly force in course of robbery, as required to support conviction for attempted second degree murder. State v. Herron, App. 1 Cir.2004, 879 So.2d 778, 2003-2304 (La.App. 1 Cir. 5/14/04). [emphasis added]


[by contrast]


There was sufficient evidence of intent to kill to sustain conviction for attempted second-degree murder; defendant was seen by more than one witness trying to fire other shots at victim but gun was jammed, although only one spent round was recovered, victim was shot at least one time by defendant, medical testimony and photographs established that three bullets had traveled through subcutaneous tissue, but for jammed gun other shots would have been fired, at one point the defendant aimed the gun at the victim's head and attempted to fire the gun, and victim continuously tried to escape, but was restrained by the defendant. State v. Meads, App. 1 Cir.1999, 734 So.2d 792, 1998-1388 (La.App. 1 Cir. 4/1/99), writ denied 748 So.2d 465, 1999- 1328 (La. 10/15/99). [emphasis added]

Evidence was sufficient to establish that defendant possessed the specific intent to kill victims, as required to support convictions for second degree murder and attempted second degree murder; evidence clearly showed that defendant pointed a pistol at victims, then fired it, killing one victim and hitting other victim three times. State v. Roberts, App. 3 Cir.2007, 947 So.2d 208, 2006-765 (La.App. 3 Cir. 1/17/07). [emphasis added]