I've mentioned in past posts the growing trend among prosecutors around the country to elevate drunk driving fatality cases from the crime of manslaughter to the crime of murder, usually resulting in life imprisonment. See for example, DUI Murder?, How to Convict a Drunk Driver of Murder and The Death Penalty for DUI?.
The most recent example concerns a DUI murder case this past week in Orange County, California, reported in an Associated Press news story entitled "Murder Charges Increasing in Fatal DUI Cases" (article offline). In the trial, the defendant was only charged with murder, not with manslaughter. After extensive deliberations, the jury returned a verdict of guilty.
During the trial, I granted two interviews with the reporter. As so often happens, however, I was misquoted. The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:
Murder vs Manslaughter and the Concept of "Malice"
The legislature of California passed a law specifically for the situation where a death results from drunk driving: vehicular manslaughter. It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter. They also passed a law for murder: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought". The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree". Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"
So….What is "malice"? Much like the legal definition of "obscenity", no one seems to know. The California statutes fumble with the definition, settling on: "…when the circumstances attending the killing show an abandoned and malignant heart". Ok, but how do you define an "abandoned" heart"? How do you prove or disprove a "malignant heart"? What is a jury supposed to do?
A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter. He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of "malice". He was right, and the practice began to spread. This was accelerated by the California Supreme Court's decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.
Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case. The result: it is malice if the driver knew that drunk driving could be dangerous.
Duh…Don't we all know that?
Clearly, these are vague terms which can mean what you choose them to mean. As the Mad Hatter said to Alice in Through the Looking Glass:
“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is”, said Alice,”whether you can make words mean so many different things.”
“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”
The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter. There is no mention of DUI in the murder statute, nor was it ever intended for that situation.
Prosecutorial Tactics in Bypassing the Manslaughter Law
The prosecutor in last week's Orange County case used an increasingly common but clever tactic: don't charge the defendant with the usual murder and manslaughter — just with murder. If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.
But isn't that a big gamble by the prosecutor? If the jury doesn't buy the murder theory, the defendant goes free.
Exactly! And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime. He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice". And they are never told that there is a manslaughter law intended for this kind of case.
Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office: "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….