“Imperfect self-defense”

Can the fanaticism of an abortion opponent entitle him to be convicted of manslaughter rather than murder when he kills an abortion provider in cold blood? A Kansas judge says “maybe.”

I’m not an expert on criminal procedure. Maybe the judge trying the killer of Dr. George Tiller is legally right to say that the defense must be allowed to try to make out a case that the defendant had an “unreasonable but honest belief” that the killing was justified, thus making him guilty of voluntary manslaughter, a much less serious charge than premeditated murder.

To amateur eyes, the claim looks too far-fetched to even bring up. Even in cases where the killer was in fear for his own life, this “imperfect self-defense” argument has been rejected because the fear was not of imminent violence. The fact that I think – even reasonably – that you might try to kill me tomorrow does not license me to kill you today.

Even if the doctor had been killed scalpel in hand, surely the killer knew that abortion is legal, much as he hates that fact. Legally, deadly force can never be justified to prevent something that is neither a crime nor an accident. The killer’s belief that abortion ought to have been illegal, and that he was therefore entitled to kill someone to prevent that person from performing an abortion, isn’t the sort of dumb but honest mistake that the voluntary manslaughter law was designed to cover. And of course if someone had killed Dick Cheney to prevent the invasion of Iraq or the (grossly unlawful) torture of Jose Padilla and hundreds or thousands of others, any attempt to offer such a defense would have been laughed out of court.

It’s hard to see how the judge’s decision doesn’t open the door to turning a murder trial into a forum for anti-abortion theatrics. If that decision is really good law, then maybe the law needs to be changed.

Update Eugene Volokh, who actually knows, picks up on the same two issues I thought I’d spotted – imminence and unlawfulness – and concludes that the judge’s ruling is probably not good law.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

14 thoughts on ““Imperfect self-defense””

  1. You're jumping the gun here a little — the judge isn't allowing jury instructions on this yet, he's simply allowing the defense to attempt to present evidence that would lead to jury instructions on the lesser charge. I think it's a smart judge, batting down something that would create more sympathy for an appeal.

    Doubtless the defense is going to put on a "Tiller needed killin'" case enough to get a hung jury, but I think this is too cute by half and that it will backfire on the defense. I can't imagine what _evidence_ they can actually get admitted that would tend to justify instructions on the lesser charge.

  2. To this amateur's eyes, it seems that a defendant ought to be permitted to present any damn defense they want, bar none, with the burden being on the state to persuade the jury the defense wasn't valid. That's what the jury is really there for, after all: To take into account that which the state doesn't want taken into account. The state gets it's prosecutorial and judicial discretion, the jury is there to be the people's discretion. We've gone way too far in trying to neuter the jury system.

    Not an idea that's popular with legal professionals, I know, but legal professionals would have convicted William Penn. The jury isn't there to make legal professionals happy.

    So, yes, they should be permitted to argue that Tiller needed killing. And then go on to lose, ideally…

  3. Brent,

    In a criminal prosecution, the law spells out what the prosecution must prove (the elements of the crime) and what affirmative defenses the defense may prove to refute the prosecution. (If the prosecution fails to prove the elements of the crime, then the defense has no need of affirmative defenses.) The jury has no say in the law; it decides only the facts. If the jury does not want to convict even though, pursuant to the law, the prosecution has proved its case and the defense has not refuted it with an affirmative defense, then the jury may engage in jury nullification. But the jury has to think of that on its own; the judge will not allow the defense to argue for acquittal despite the law.

  4. Aren't they really angling for jury nullification? If they can get at least one rabid anti-abortion person out of the 12, and they're able to present the justified killing argument, even if it isn't law and isn't in the instructions they'll be able to hang the jury.

  5. They may be angling for jury nullification, but more than that they're angling for new terrorist recruits. This is exactly the kind of circus that the right wing was just warning against with regard to trials of non-domestic terrorists, with the distinguishing point that federal courts exercise much more control over lawyers' actions and over broadcast of trial proceedings.

  6. Henry, that's the way legal professionals want it to be. And, on those terms, wouldn't Penn have been convicted? Whose aquittal was considered a great triumph of the right to trial by jury?

    The jury exists to nulify. It really makes little sense to have them, once you strip them of that function.

  7. All the judge has ruled on is that the defendant gets to present evidence about his state of mind. A defendant in a murder trial is allowed to do this. It's called presenting evidence in his own defense. The jury, as the trier of fact (unless Roeder waives a jury and has a bench trial), gets to decide whether they believe this evidence or not. (Or whether, even if they believe Roeder is telling the truth about his state of mind, that's sufficient to negate the premeditation element of a murder charge.) This is how a criminal trial works (and not just for homicide, for any criminal offense). It is called due process and it applies – or should apply – even when some people don't like it.

  8. No, judges don't have to allow all the evidence a defense lawyer wants to put up. If they're not putting up a defense of insanity or impairment, it is very difficult to see what set of "self-defense" related beliefs would be germane to someone seeking out an unarmed person and shooting them.

  9. The "honest belief" defense is already well established, but no one wants to talk about it candidly, because it obviously leads immediately to the total collapse of the rule of law.

  10. Wow. That's the clearest example of how using "obviously" betrays the weakness of your argument, that I've ever seen!

  11. And of course if someone had killed Dick Cheney to prevent the invasion of Iraq…

    If someone had and it worked, the grounds for the argument would be that much weaker. You tried to prevent something that never happened?? That's crazy!

  12. So Brett thinks that the law is irrelevant, and that 12 people should basically get to decide whatever they want in any criminal case no matter what the law says?

    Bringing in precedents from 17th century England hardly seems relevant – the laws of a democratic society inherently have more legitimacy than the laws of an oppressive oligarchy. As far as I can tell, Brett's argument is that because there have been some cases where jury nullification led to a good result, we should just cast aside the rule of law.

    Why even have a judge if this is your attitude?

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