Criminal Justice Masters Program Comprehensive Exam - Essay Example

?Criminal Justice Masters Program Comprehensive Exam Question 5: In United s v. Thomas, 34 F2. 44 (1994, 2nd Cir), the court d that “It haslong been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill.” What is the logic behind this principle? Do you agree with it? Why or why not? Answer: The right of self-defense in modern law had its origins in the Roman Law (c.ad 1 – ad 250) principle known as dominium. This refers to the sum of all rights, powers and privileges a legal person could have in a thing. It is also otherwise referred to as ownership or proprietas (Encyclopedia Britannica, 2012). This indicates that even in the earliest versions of law in the West, it is recognized that a person has the right to protect and defend his dominium – his family, his property, and his well-being – from external aggression that harms or threatens to harm it. The right of self-defense is claimed by the aggressor or defendant charged with a violent crime. Some of these crimes include: battery (striking someone against his or her will), assault with a deadly weapon, assault with intent to commit serious bodily injury, manslaughter, and first or second degree murder (Bergman & Berman, 2009, p. 314). Self-defense is a justifying circumstance. It is an affirmative defense in that it justifies the use or threat of force exerted by an individual when he or she believes that there is a danger of an imminent, immediate, and unlawful infliction of serious bodily harm or death (Lippman, 2010, p. 216). A criminal act, such as a homicide, is justified when it is resorted to in order to prevent a greater, imminent, and immediate harm, when there are no other equally effective alternatives possible. The court quoted: “all homicide is malicious, and of course, amounts to murder, unless… justified by the command or permission of the law; excused on the account of accident or self-preservation; or alleviated into manslaughter, by being the involuntary consequence of some act not strictly lawful or (if voluntary) occasioned by some sudden and sufficiently violent provocation” (Blackstone, 1854, p. 201 in U.S. v Peterson, par. 14). In the modern application of the law, much of Blackstone’s commentaries are still relevant, although jurisprudence has enumerated the requisites that support a claim of self-defense. These are that the defendant: (1) must not have provoked or been the aggressor in the assault; (2) must have reasonable grounds for the belief that he is faced with imminent danger of serious bodily injury; (3) must not use more force than that which appears reasonably necessary; and (4) must do everything in his power consistent with his own safety to avoid the danger and must retreat if retreat is practicable (Lippman, 2010, p. 222). A special case when self-defense cannot be resorted to as a defense is when the accused invoking it is the very person who instigated or provoked the aggressive act. What this exactly means can only be explained by a perusal of case law where the principle was applied with varying premises and results. Case Law: United States v. Thomas, 34 F2. 44 (1994, 2nd Cir) The case concerned the fatal shooting of Wallie Howard, a Syracuse police officer who worked undercover for the Federal Drug Enforcement Administration (DEA) during a “buy-bust” operation on 30 October 1990. In this instance, the suspected cocaine dealers decided to likewise rob Howard, who was seated in the front passenger seat of a car. The perpetrators, Stewart and Lawrence, were each armed with .22 and .357 revolvers. Stewart tried to shoot Howard but failed because there was no bullet in the chamber. Howard gets off a shot and hits Stewart in the shoulder. Lawrence, standing at the rear passenger side of the car, shot at Howard, striking the rear of his head and instantly killing him. The two were arrested minutes later. The defendants, Lawrence and Stewart, claimed self-defense in that Howard was the first to draw his gun, and Lawrence believed that Howard would kill him and therefore felt he had to draw his gun and shoot Howard to protect himself. The court ruled against the claim of self-defense on the part of Lawrence to justify his killing of Howard. The ratio decidendi is that “the defendants are not entitled (given the jury’s finding of attempted robbery) to the defense of self-defense because their need to defend themselves arose out of their own armed aggression. One who commits or attempts a robbery armed with deadly force, and kills the intended victim when the victim responds with force to the robbery attempt, may not avail himself of the defense of self-defense” (US vs Thomas, par. 25-26). “It has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill. The right of homicidal self-defense is…denied to slayers who incite the fatal attack…In sum, one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation.” (US vs Thomas, par. 27). The circumstances surrounding the slaying of Howard shed much light on the meaning of this doctrinal pronouncement by the court. While it is true that all persons, including criminals, would normally react to a perceived threat to their lives by responding with force, it would be a travesty of justice if such perpetrator is allowed to seek refuge in self-defense, when that person upon whom the aggression was directed was only seeking to foil the crime and enforce the law. In the case of Howard, an undercover police officer acting in the performance of his duty, he would have had no reason to draw his weapon had he not been targeted for robbery. Furthermore, the two robbers were likewise armed, and they incited the attack with an act that constituted a felony. Case Law: United States v Bennie L. Peterson, 483 F.2d 1222 (1973) Another doctrinal case illustrating this principle is that of U.S. v Peterson. The accused, Peterson, shot and killed the victim, Keitt, in the former’s own backyard. The facts are rather straightforward: Keitt and two friends drove to the alley behind Peterson’s house to remove the windshield wipers from Peterson’s wrecked car. Peterson came out to protest, and after a verbal exchange, Peterson went back into the house, and re-emerged armed with a pistol. By that time, Keitt and his companions were back in their car and were about to leave. At this point, Peterson challenged them: “If you move, I will shoot.” Keitt got out of the car, saw Peterson’s gun, returned to the car and got out a lug wrench. With the lug wrench raised, Keitt advanced towards Peterson, who warned him not to take another step. When Keitt continued to advance, Peterson shot him in the face from a distance of ten feet. Unlike in U.S. v Thomas, the accused here, Peterson, was not in the course of committing a crime, and appeared to be merely defending his life, his home and possessions. However the court ruled that Peterson was not entitled to the defense of self-defense. The criterion employed by the court was two-fold. First, Peterson could only have been absolved if the severity of force he has employed had been only that which was necessary to avert the danger to himself. That was not the case in this instance, because the other was advancing with a lug wrench, while Peterson used a gun, and aimed the gun directly at the face to ensure immediate death. The danger would likewise have been diffused had Peterson shot to wound rather than kill, as the lug wrench would have been rendered non-threatening at a distance of ten feet. More important for this discussion, however, is the pronouncement of the court that “It has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill… The right of self-defense does not arise until he has done everything in his power to prevent its necessity” (U.S. v Peterson, par. 22, 24; U.S. v Laney). In the case of Peterson, the victim was already about to leave, and in fact had already entered his car with his companions. It was at this point that Peterson came out to the yard, loaded his gun, dared Keitt to come forward and threatened to kill him if he did. Peterson committed an act calculated to provoke a particular reaction from Keitt, and therefore made possible the encounter that led to the killing. This is not the situation contemplated in self-defense; for this defense to be invoked, the encounter is one that the accused could not have avoided, prevented or evaded, and has resorted only to the violent act as a last resort to protect his own life. Compared to U.S. vs. Thomas, the decision in U.S. vs Peterson draws a fine line in the definition of the motivation for the aggression. If the aggressive act is motivated by anything other than a desire in good faith to protect one’s own life, that of his family, or someone in danger, then there is no self-defense. This includes illegal acts (as in Thomas) or acts intended to provoke a particular reaction (Peterson). Case Law: U.S. v Taveras, 570 F.Supp.2d 481 (2008) The third case discussed her is provided as an example of a situation where the defense of self-defense is held plausible by the appellate court, which found reason to remand the case in order for it to be argued on this point. The aggressor in this case is Pepin, a relatively uneducated and inarticulate man, who admitted to the killing of two persons, Rosario and Madrid, which he claims was on the basis of self-defense. Rosario is the leader of a gang that stole money and drugs from traffickers by kidnapping them or invading their homes. The corroborating testimony of witnesses established that a third party by the name of Nelo, came to Pepin and informed the latter that Rosario had directed him (Nelo) to kill Pepin, Mendez and their children, and to seize Pepin’s drugs. Apparently, Rosario owed Pepin $14,000, and presumably got mad when Pepin refused to lend him an additional $5,000. This allegedly was the reason that Rosario wanted Pepin dead. Pepin could not believe that Rosario really wanted him killed, and told the witness that he (Pepin) will speak with Rosario to inquire if Nelo’s accusation was true. When Pepin met with Rosario and demanded to confirm or deny the allegation that he ordered Nelo to kill him and his family, Rosario stood up and appeared to advance to Pepin. At that instance, Pepin fired his gun several times, one bullet of which hit Rosario just under the eye. As to Madrid, Pepin said that he and Madrid quarreled because after Pepin was arrested for dealing in drugs, Madrid was unwilling to supply Pepin with additional drugs to sell. Knowing that Madrid was in contact with hired killers, Pepin’s wife Mendez was frightened when she noticed that a group of menacing-looking men were sitting in a car parked outside their residence. She hysterically summoned Pepin, knowing that Madrid had threatened to kidnap the daughter of Pepin and Mendez. Prior to this, there already had been incidences of rocks being thrown and shots fired at their home, causing Pepin to fear for his life and that of his family. Subsequent to this, during a drug deal Pepin stabbed Madrid in the chest, thereby killing him. In applying the law to the facts, the court decided that the jury be instructed to consider self-defense in this case. It noted that “it has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill.” That being said, the decision in Tavernas stated that “there appears to be sufficient evidence that Pepin had not deliberately courted the dangerous situations when he purportedly acted in self-defense.” There is much that may be interpreted from the manner in which Rosario stood from his seat and approached Pepin, from which Rosario’s intent may still be deduced, and what Pepin thought Rosario’s weapon or means of inflicting death would have been. Likewise, there is much that has not yet been revealed about the circumstances of Madrid’s death, but there is sufficient evidence that may suggest the possibility of a threat to Pepin. It should be noted that in both the preceding cases (Thomas and Peterson), the court upon review refused to charge the jury that it was the obligation of the government to prove the absence of self-defense beyond a reasonable doubt. It had, however, allowed for the jury to be so charged in the case of Taveras, on the basis mentioned in the preceding paragraph. This places the burden of proof upon the government to show that the defendants did not act in self-defense. For Taveras, the disputable presumption is therefore that the defendant acted in self-defense, which should be overturned by a showing of evidence by the government that the elements of self-defense are not met by the facts. Personal assessment of the principle I agree with the principle that the accused in a criminal case should not be entitled to the defense of self-defense when they had actually incited the armed aggression. It is but sensible that the perpetrator to a crime who puts himself in a position of risk of personal harm, does so with the knowledge that his prospective victim whose life, property or family he threatens will retaliate to ward off the aggression. This is a natural and logical consequence of the criminal act the accused perpetrates. The criminal therefore should be deprived of this defense, since the threat the victim poses to his life is not unprovoked. Besides one element of self-defense is breached, that of undertaking all possible recourse to avoid or evade the danger. The criminal is not avoiding the danger, but courting it with his crime or his action. Furthermore, there is another principle in law that states that an offender who commits an illegal act is likewise liable for the consequences for which his act is the proximate cause (Lippman, 2009, p. 144; McCord, McCord & Bailey, 2011, p. 67). In the case of US v Thomas, the crime which the defendants were convicted of is attempted robbery. Being in the act of robbing Howard at gunpoint, there is every reason to expect that Howard’s natural reaction would be to draw his gun and avert the crime. There is no intervening cause between the robbery attempt and the slaying, all of which occurred pursuant to a logical sequence of events. Therefore, the subsequent killing of Howard by Lawrence is proximately caused by the robbery attempt also by Lawrence, and therefore the accused, Lawrence, should bear the liability for the killing. What may be deduced from the case laws is that the “self-generated necessity” may be an offense (US v Thomas) or a mere provocation (US v Peterson). However, in the absence of any showing that such “self-generated necessity” is evident, then the accused may be entitled to this defense (US v Taverna). The important consideration is that an accused must not be protected by the very act by which he courted the danger. References: Bergman, P. & Berman, S. (2009) The Criminal Law Handbook: Know Your Rights, Survive the System,11th edition. Berkeley, California: NOLO Blackstone, W. (1854) Commentaries. New York, NY: Harper & Brothers Encyclop?dia Britannica, Inc. (2012) "absolute ownership". Encyclop?dia Britannica Online. Accessed 31 May 2012 from http://www.britannica.com/EBchecked/topic/1788/absolute-ownership. Lippman, M (2010) Contemporary Criminal Law: Concepts, Cases, and Controversies, 2nd edition. Thousand Oaks, CA: Sage Publications, Inc. McCord, J.W.H.; McCord, S.L.; & Bailey, S. (2012) Criminal Law and Procedure for the Paralegal: A Systems Approach, 4th edition. Clifton Park, NY: Delmar Cengage Learning Legal Cases U.S. vs. Laney, 54 App.D.C. 56, 294 F. 412 (1923) United States v Bennie L. Peterson, 483 F.2d 1222 (1973) United States v. Thomas, 34 F2. 44 (1994, 2nd Cir) U.S. v Taveras, 570 F.Supp.2d 481 (2008) Read More