Jodi Arias Requests Manslaughter Lesser Included Instruction

Posted by Vladimir Gagic on April 23, 2013

The Jodi Arias defense moved the court to instruct the jury on the lesser included offense of manslaughter. How can they do that if they claim she killed Travis Alexander in self defense? In State v. Wall, the Arizona Supreme Court said: 

Arizona Rule of Criminal Procedure 23.3 requires the trial judge to provide the jury with verdict forms "for all offenses necessarily included in the offense charged, an attempt to commit the offense charged or an offense necessarily included therein, if such attempt is an offense." If requested to do so and the evidence supports it, the trial judge must also instruct the jurors on all offenses "necessarily included" in the offense charged. Ariz. R.Crim. P. 21.3(c) cmt.; State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983).

Although the terms are often used interchangeably, a "lesser included" offense is not always a "necessarily included" offense for purposes of Rule 23.3. State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). An offense is "lesser included" when the "greater offense cannot be committed without necessarily committing the lesser offense." Id. But an offense is "necessarily included," and so requires that a jury instruction be given, only when it is lesser included and the evidence is sufficient to support giving the instruction. Id. In other words, if the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved, the defendant is entitled to have the judge instruct the jury on the lesser-included offense. Id. (citing Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965))...

We deem evidence sufficient to require a lesser-included offense instruction if two conditions are met. The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense. State v. Caldera

What this means the jury could reasonably find the defendant guilty of lesser included offense based on the evidence presented, the judge must instruct the jury on the lesser included. That means the jury can find Ms. Arias, if Judge Stephens rules it would be reasonable, guilty of manslaughter as a lesser included of murder. Importantly, the Jodi Arias can request a lesser included instruction even though the defense has claimed self defense, an all or nothing defense. 

Why does courts allow lesser included instruction?

The rule requiring instruction on lesser-included offenses is designed to prevent a jury from convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime. As the Supreme Court explained: "Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382,

In Ms. Arias' case, both manslaughter and second degree murder would be lesser included offenses of count one murder in the first degree, intent to kill with premeditation. All the elements of the three offenses are the same except for the mens rea or "state of mind". First degree murder requires "specific intent to kill" without justification. Second degree murder requires "general intent" or depraved indifference to death. Finally, the manslaughter state of mind is "recklessly causing the death" of another person, or it could be "depraved indifference" that resulted from the "heat of passion from adequate provocation". The difference between manslaughter and second degree murder in this case is nothing but academic because I believe if Ms. Arias is convicted of either charge she will receive the substantially aggravated term of prison. For manslaughter, the maximum sentence is 21 years, while the maximum for second degree murder is 25 years. 

Note that the lesser included instruction only apply to count one. They would not be lesser included offenses of count two murder in the first degree murder, felony murder.

How to Stop the Next Jerry Sandusky: A "Person" Under Arizona's Duty to Report Law Should Mean Everyone

Posted by Vladimir Gagic on November 13, 2011

It goes without saying, the Joe Paterno and Penn State child molestation scandal has made a lot of news lately. And quite a few people have been willing to point the finger at Joe Paterno and the Penn State staff for not having stopped Sandusky earlier. As I wrote in my previous post, I believe much of the ire directed at Mr. Paterno is unfair. I do not believe, as so many have said and written, that Mr. Paterno's compass was pointing in the wrong direction. Having said that though, it may be time to consider the new law, or at least expansion of an old one, that would help child victims. What I have in mind is a law similar to the law that forces or permits doctors, therapists, and parents to report child molestation and child abuse (see Arizona Revised Statute 13-3620 Duty to report abuse).

However, this law would not be directed at doctors or professionals; it would be directed at all adults. Most importantly, it would be directed at the wives of child molesters. That is because the wives of child molesters almost always know about what their husbands are up to. In the Penn State child molestation case, there's a lot of reason to believe Mr. Sandusky's wife knew exactly what he was doing. In the 1998 bowl game Penn State went to, a child (victim #1) stayed in the same hotel room as Mr. Sandusky. And in another instance, victim #4 went to Mr. Sandusky's home and stayed for the night in the basement.  If it is in fact true that Mr. Sandusky has been a child molester for his entire adult life, I am next to certain his wife was aware of the fact.

My version of the law would be the following: "if you have good reason to believe that another adult is sexually abusing a minor, you must report it to the police within 24 hours or you will be prosecuted for failing to report that abuse". Basically, it would expand the definition of "person" ARS 13-3620 to include any adult and not just professionals and parents.  

While there is a long held tradition in American law that we should not force someone to defend another absent a particular duty- for example, police officers or parents of a child- and we do not want citizens spying on each other, the situation of child abuse is completely different. This is not about creating a police state to enforce ideological control. Child abuse is, almost by definition, secretive and next to impossible to discover. We simply have no other choice, and this law would be the least onerous way to protect abused children. 

Too many times wives and other family members who know what is happening do nothing because of the so-called "bystander effect". Other times, adults do not act because they have an interest in protecting the child molester. The best way to combat these hindrances to the reporting of child abuse is to force the reporting. And there is no better way to force somebody to act a certain way than to have the criminal law punish them if they do not.

This law would just be a simple recognition of the fact that many times people fail to do the right thing not because they are evil, but because they are acting under uncertainty. They do not have the playbook, or compass, to open up and figure out what to do next. They simply panic and, under these circumstances, they fall back to the behavior of least consequence: they do nothing. With this law, just as the "leaving the scene" law  (A.R.S. 28-663) instructs people what to do when they are under the much less stressful, but still stressful enough circumstance of a fender bender, people would know exactly what they need to do if they suspect child abuse. They call the police.  

Is Jared Loughner Competent to Stand Trial?

Posted by Vladimir Gagic on September 29, 2011

Is Jared Loughner competent to stand trial? How about Baby Gabriel's mother Elizabeth Johnson? 

Will Tucson shooting suspect Jared Loughner be ready for trial?

Posted by Vladimir Gagic on September 28, 2011

"It's going to come down to what the doctors say, so if there's no real evidence that he's competent to stand trial, it's kind of out of the prosecution's hand," Phoenix Attorney Vladimir Gagic said. Too read the rest of the story see "Will Tucson shooting suspect Jared Loughner be ready for trial?" by Steve Kuzj Phoenix station ABC 15 KNXV. 

Why Does Child Sexual Abuse Happen?

Posted by Allison Gamble on August 17, 2011

According to the National Academy of Child and Adolescent Psychiatry, about 80,000 cases of child sexual abuse are reported each year in the United States, and it is presumed that many more occur but are unreported. In court forensic psychology findings are important to determine if abuse has occurred. Knowing about why children are vulnerable to sexual abuse, the types of people who become abusers, and the outlook for victims of abuse can help in healing.

The public consensus is that most sexual crimes happen by strangers. This is actually a misconception perpetrated by the media; most offenders are either family or have some relationship with the immediate family. Also the belief that child sex offenders are likely to re-offend is also a misconception; there is a very low percentage of re-offenders and it is 25 percent lower than all other criminals.

Sexual abuse can be committed by kids and adults and because of variation in what constitutes as sexual abuse there can be a good number of false positives. While there is a high percentage of abusers who were abused as children themselves, that on its own does not predict the future. Men are almost always the offenders when it comes to child sexual abuse.

The type of person who sexually abuses children typically has a need to control another person in both body and mind. Most abusers know what they are doing is wrong but come up with denial mechanisms. Some adults find it easy to exploit a child's fears of getting into trouble or of being unloved by the people he or she cares about. As a result, abusers are able to continue victimizing a child as long as the child does not tell anyone about the abuse.

Some abusers tell the child that they will be punished for telling, or they may threaten to harm their victim's family if the child says anything to another adult. Older children may believe that their abuser is teaching them about sex or that they are in a romantic relationship with their abuser. The fact that abusers usually tell children anything to keep them quiet shows that they know the abuse is wrong.

People who were sexually abused as children sometimes become depressed and have difficulty having healthy, trusting relationships with family members and friends. Some turn to drugs for relief or become sexually active at an early age. Victims of abuse are often seen as damaged but with support from friends and family and with counseling or therapy, they can have a happy and healthy life.

Child sexual abuse is rarely an easy thing for victims and their families to work through. Abusers necessarily confuse and manipulate their victims. If abuse continues for an extended period of time, the victim can develop psychological and behavioral problems. Knowing how and why these problems developed can help families of abuse victims support their loved ones.

Should Obama Prosecute the S&P for Conspiracy to Defraud the USA?

Posted by Vladimir Gagic on August 08, 2011

The United States Treasury and Obama Administration certainly do not like the fact that the bond rating agency S&P downgraded American bonds from AAA to AA, but did the S&P commit a crime?  What I am specifically referring to is a conspiracy to defraud the United States (18 USC 371): 

The general conspiracy statute, 18 U.S.C. § 371, creates an offense "[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.

Under the United States Supreme Court cases Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924), "defraud" means: 

1) The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

2) To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

I have read that the S&P made a mistake when it downgraded American debt ("More Bad Beer From S&Ps David Beers" by Marshall Auerback). But the reason I think what the S&P did could very well be criminal is because they deliberately downgraded American bonds to gain credibility with investors.  They needed to regain credibility because: 

the S&P (along with Moody’s and Fitch) covered themselves with glory during the housing bubble, rating toxic subprime junk as AAA rated paper. Not only were the agencies politically corrupted by virtue of their incestuous ties to Wall Street, but criminally incompetent as well.

Thus, to reassert themselves as a credible debt rating agency, the S&P has obstructed government function (the selling of Treasury bonds) by trickery, namely publicly misstating the solvency of the United States.  My hope is that the Obama Justice Administration will realize that Wall Street fraud and white collar crime come in different shades, and this one by the S&P might be the most dangerous of them all.   For more details of the failure of the Justice Department to prosecute Wall Street fraud, see William K. Black of New Economic Perspectives.

By way of example, the Maricopa County Attorneys' Office has prosecuted and convicted many defendants for the class 4 felony fraud (ARS 13-2002 forgery) when the defendants have shown a police officer a fake driver's license.  The theory of the prosecution is that showing a fake driver's license to a police officer is fraud against the state because the defendant is impairing government function by way of trickery. 

A. A person commits forgery if, with intent to defraud, the person: 1. Falsely makes, completes or alters a written instrument; or 2. Knowingly possesses a forged instrument; or 3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information. B. The possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud.  C. Forgery is a class 4 felony, except that if the forged instrument is used in connection with the purchase, lease or renting of a dwelling that is used as a drop house, it is a class 3 felony. For the purposes of this subsection, "drop house" means property that is used to facilitate smuggling pursuant to section 13-2319.

P.S. (August 18, 2011) The Justice Department is investigating whether Standard and Poor's improperly rated dozens of mortgage securities in the years leading up to the financial crisis.  See "U.S. Inquiry Is Said to Focus on S.&P. Ratings" in the New York Times by Louise Story.

DUI in Phoenix: Preliminary Breath Test (PBT)

Posted by Vladimir Gagic on July 05, 2011

When someone is stopped for a DUI in Phoenix, or for that matter, anywhere in Arizona, the police will sometimes ask the driver to undergo what is called a preliminary breath test, or PBT.  The PBT looks like a little, handheld portable breath machine that some police officers carry in their squad cars.  There are two very important points about the PBT in an Arizona DUI case.  

First, you have the absolute right to refuse to take the portable breath test.  Of course, the police officer will not tell you that, and he will make it seem like you do not have the right to refuse the test. Second, the results of the PBT are not admissible at trial.  

Considering those two facts, the PBT must not be that important to Arizona law enforcement, right? That is even more so considering how busy law enforcement in Arizona is during the summer months enforcing DUI.  As a recent story by Alex Gregory of ABC 15 just noted: Officials: 353 arrested for an Arizona DUI this weekend:

July 4 celebrations aren’t over yet, but statewide DUI statistics for the weekend so far are in.   As of Monday morning, 353 drivers had been arrested and charged with DUI around Arizona since July 1, Alberto Gutier, Director Governor’s Highway Safety Representative, said in an email.  Officers and deputies have encountered 39 cases of aggravated DUI, 99 extreme DUIs and 20 intoxicated drivers under the age of 21, Gutier said.

But while one may believe the PBT is not important because it is inadmissible in trial and one can refuse, my opinion is that it is one the most important tools Arizona law enforcement uses.  That is because while it is not admissible at trial to prove guilt or innocence, it is admissible at a probable cause hearing to prove the DUI officer had reasonable cause to arrest the drive and obtain a subsequent chemical test.  And while drivers have the right to refuse the PBT, very few know that or have the gumption to refuse the PBT in the face of an insistent officer.