MURDER! ....she said

Murder...the most sincere form of criticism. As old as time. They say we are all able to do it, given the right set of circumstances. Some do it for sport, some because they are just nuts. Murder happens in every culture, and murderers are from every possible way of life. Tiger Woods wife thought about it recently, but figured out 300 million is better than a prison cell. Some never think about the punishment, they are "natural born killers"

My first year class will start studying homicide in a week or two and so it got me thinking about the area again. You see, no one is ever guilty of HOMICIDE. Homicide is not a crime. Homicide is the killing of a human being by another human being....Perfectly fine activity much of the time. It is the goal in war. It is the goal as punishment for crime. It is even the goal to protect yourself and your family. Homicide is good.

Murder, well, that is something else. Murder is the killing of a human being by another human being, with "malice aforethought".....What the hell is malice aforethought?. We all know what aforethought it...it is simply thinking about something before you act...so, what is malice? Malice is simply an evil thought, based on a wrong purpose. It is the legally required state of mind to convict someone of murder. Malice does not mean hatred or ill will. You do not have to hate someone to be found to have malice. And, there are lots of ways to prove malice.

When you actually intend to kill and commit an act designed to take a human life, that is a malicious intent.....and the crime of murder is the result. But malice for the crime of murder can also be shown by implication. For example, if you hit a person in the head with an iron pipe, you may not have actually intended to kill them, but you performed an act with an intent to cause a great injury. If the person dies, then the malice is implied. A "reckless and wanton disregard for human life"

If you drive your car into a crowd at a street party and 60 MPH, you may not actually intend to kill anyone, but your conduct is so reckless then the malice for the crime of murder may be implied by your actions. So it is murder if someone dies.

My favorite murder theory is what is called the 'Felony Murder Rule". Boy, do liberals hate this one. OMG!. Consider this. A couple of hundred years ago when the rule was formed in England, it went like this: If you commit a felony, ANY FELONY, and someone dies, even accidentally, they YOU are guilty of murder. The theory is the mental state, the "mens rea" necessary to commit the felony is transferred to the death, and the law construes the intent to commit the felony as an intent to kill...MURDER!... And, it did not matter what felony, in fact, since almost any crime was punishable by death in those days, it was kinda of a simple mental jump to make a rule that we kill you too.

The rule is still around in almost every state. It has been modified over the years and many if not most states now require the predicate felony to be one that is a dangerous felony...something like armed robbery. So today, in California, if you stick up a store and the owner has a heart attack and dies.....murder! she wrote. Now when you couple this felony murder rule with accomplice liability and conspiratorial liability, well hell, everybody gets a murder rap.

Lets say your half wit brother in law asks you to drive the car to the 7-11 so he can go in and rob the place. Your not much brighter than your brother in law, so for some reason you agree. Here you are, fat, dumb, and reasonably happy sitting in the getaway car, engine running while he goes in to rob the place. Now, brother in law has a real gun, but to make sure no one gets hurt, he takes the magazine out and shows you" see, no bullets" so you say OK, you'll do it.

So you drive up and brother in law, lets call him "Halftrack" (since half his brain jumped the rails). Halftrack gets out, goes into the store and points this gun at the clerk. Halftrack, generally unable to do anything right, accidentally drops his gun. Well, Halftrack forgot there was still one round in the barrel, and the gun falls on the hammer and accidentally goes off. The bullet hits the ceiling and bounces off hitting the clerk in the head and he dies. "CRAP" Halftrack yells!, and runs from the store. He tells you this as you speed away. Of course the surveillance cameras capture all of it and the cops actually beat you home. You are charged with robbery. You see, as a person who aided and assisted the principle (Halftrack) you are an accomplice. Also, you are also a co-conspirator since you assisted by agreeing to commit a crime with Halftrack, you are just as guilty of robbery as Halftrack is under the law......But here is the kicker. You are also charged with First Degree Murder!. Hell, you never went into the store, don't have a gun...nothin'.... But, under the felony murder rule, Halftrack is also charged with murder since he was committing a dangerous felony and there was a death. And you helped, so you get the same charge. Since the felony was a robbery, in most states, that makes the charge first degree murder.....And now you learn that, in your state, a murder during a robbery can bring the death penalty!!!!..... and all you did was drive Halftrack to the store.

That's how it works...like it or hate it. People who assist others to commit crimes and are actually present at the scene get the same charge under accomplice law. Those who agree to commit a crime and do something to further the objective are also guilty of the crime...and that is the case even if the co-conspirator is home watching "Dancing with the Stars" when it goes down. Here, the brother in law, you, are actually the wheel man. Your gonna fry! Murder is the most sincere form of criticism.

More on murder and accomplice liability later.....

Law School, Part II

I first wrote about law school in the early posts on this blog and maybe it is time to revisit the issue. I have noticed a distinct change in law students over the years, and this year seems to be representative of those changes. I am finding the first year students to be very engaged in the school process and much more inclined to work together in study groups. They seem to be doing it "by the numbers" also. By that I mean they are spending a good deal of time in the horn book rather than using study outlines like Gilberts. These are all good changes. I am impressed also at the level of actual legal insight and more so than in past years.

As I have said, law school is guided self learning. A law student gets out of law school exactly what she or he puts into it. Law Professors like myself try to guide this self learning process by explaining the difficult legal issues, and allowing the students to come up with the correct answers. Most do....some do not. While most who are admitted to a law school have the ability to be successful, some do not have the self discipline or drive to make it through. The failure rate for law school is ultimately about 75% historically. In my opinion, it is really about 25% based on actual ability, and the remainder fail because they choose to.

You see, law school changes the way law students think. They become more abstract. More analytical. They loose the luxury of being comfortable jumping to conclusions. With the possible exception of medicine, I know of no other professional process which does this. Some are simply uncomfortable with this and they choose to move on. That's fine. It is their choice.

But, things are changing. I have noticed a number of CPA's, teachers, engineers, and even a couple of PhD's and MD's in my classes. Many are there for a professional career change, some are their just looking for an intellectual challenge. Whatever their reason, overall, law students seem better equipped to handle the material and I foresee the failure rates to drop.....And that is a very good thing. ...... P.S. Merry Christmas to all.