Archive for August 13th, 2010

The Education of a Prosecutor

Friday, August 13th, 2010

Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.

A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder: malice?  I mean, that requires malice.

A.  But the law says you can imply malice.

Q. OK, but imply it from what?

A. "It is implied when…the circumstances attending the killing show an abandoned and malignant heart". [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is "an abandoned and malignant heart"?

A. Our Supreme Court says it’s when someone "does an act with a high probability that it will result in death and does it with a base anti-social motive and a basic disregard for human life".  [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. "High probability" a DUI will result in death? Anyway, the guy was just drunk: How can I prove "base  antisocial motive" and "wanton disregard for human life" from that?

A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?

A. Yep.  We call it a "Watson murder".

Q. That’s a long way from "high probability it will result in death".

A. Don’t worry about it.

Q. But how do I prove he knew it was dangerous?

A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?

A. .Just find someone who once told him drunk driving was dangerous.

Q. Really?  What if we can’t find someone….

A. Has he ever attended a driver education class, like in high school? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?

A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?

A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?

A. They already tried it in a North Carolina case, but the jury went for life without parole. We’re working on it.

Note: Judges in California make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying DUI is dangerous. Another triumph of form over substance….