Thursday, July 8, 2010

Murder Or Manslaughter? A Question Of Malice.

According to California Penal Code 192 (b); Involuntary Manslaughter, which is the least serious charge of manslaughter, applies when the killing occurs; 1) in the commission of an unlawful act, not amounting to a felony, OR 2) by way of a lawful though dangerous act, that is done in an unlawful manner or without due caution or circumspection.

According to California Penal Code 187; Murder (Second Degree) is defined as causing the death of another person with malice aforethought. To be convicted of murder it must be proven that: 1) the defendant committed an act that caused the death of another person; and 2) When the defendant acted, he had a state of mind called malice aforethought; and 3) He killed without lawful excuse or justification.

There are two kinds of malice aforethought; express malice and implied malice. A defendant acts with express malice if he unlawfully intends to kill. A defendant acts with implied malice if; 1) He intentionally commits an act; 2) the natural consequences of the act are dangerous to human life; 3) at the time he acts, he knows his act is dangerous to human life; and 4) he deliberately acts with conscious disregard for human life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

Personally, I feel that when you pull out a gun (that has a totally different weight, shape, and feel from a taser) and point it down at a subdued unarmed man's chest area and discharge your weapon (resulting in the death of said individual); you satisfy the elements of malice aforethought (express or implied). If you satisfy the elements of malice aforethought then you satisfy all the elements of murder. Thus the conviction of involuntary manslaughter is totally blowing my mind right now.

I guess I shouldn't be too surprised though. This was an LA jury that we're talking about here. You know, the same pool that produced the people who acquitted OJ (he did it folks...he did it) and those cops that beat Rodney King nearly half to death (that one was taped as well). This is the same pool that has failed to convict a police officer of murder since 1983. So I guess I'm really not surprised, but I'm still a little upset and saddened by this news. It is 2010 and this is the best we can (currently) hope for in terms of justice.

What is really sad is that given the history of these kinds of incidents (the culprits getting off "scott free", this recent conviction can be seen as progress. So until police protection extends to all members of American society, for young black males (and even younger black females)when encountering the police or any law enforcement authority in possession of a deadly weapon, the protocol remains the same...SURVIVE!



Reggie said...

Interestingly enough, this is one of the topics that was discussed this past weekend, when I had an opportunity to meet someone that I've blogged alongside for years.

This whole case bothered me for many reasons. First, why would it have been necessary to use a taser on this man that is clearly down on the ground and surrounded by the officers of the law that his taxes pay for??!!!?? Why?!?

But I have a hard time believing that this officer intentionally pulled his weapon out and shot this man in front of so many witnesses. I don't believe that he actually meant to kill this man and because of that, his sentence made sense. It almost sickens me to say that, but what happened was probably the right sentence.

Now....that man's family should file a wrongful death lawsuit against both the police and that stupid cop that shot him.

Mr. Noface said...

The thing is, he didn't have to intend to kill Grant in order to satisfy the mental state element for a charge of murder in the second degree (I should have made the distinction in my post, sorry). All he had to intend was so seriously injure grant without provocation, which he would have done to an already restrained and subdued Grant, weather he had a taser or a gun (though the taser defense doesn't hold much weight with me).

You are right though, it's all about how people infer his intent based on the facts. Some will lean towards the greater charge and some for the lesser. The jury obviously opted for the lesser charge.

I agree that a wrongful death suit (against Werhsele and the BART authority) would be an option if the family of Oscar Grant wants further relief. There is also the federal investigation into this matter that may also bear fruit.