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Collateral Estoppel and Fracture (the Movie) -- a Key Legal Flaw?

Spoiler alert! If you plan on seeing Fracture and don't want to know the plot, do not read the following. I'll explain the key plot twist below for those who haven't see the movie and don't mind the spoiler.

Sasha Volokh (mail) (www):
Doesn't attempted murder have an element that murder lacks -- specific intent to kill? So if there was a general verdict, isn't it possible that the jury only found that he lacked that specific intent, which would leave it open to argue at the murder trial that he had general intent?
5.1.2007 1:02pm
Michael Barclay (mail):
Eugene,

Not being a lawyer who works in the criminal area, I wondered about this also. Question: did the movie have a legal advisor, as do many movies with legal issues? I did not watch all the closing credits, and IMDB doesn't list one, see http://www.imdb.com/title/tt0488120/fullcredits#writers

Thanks.
5.1.2007 1:05pm
Brasher:
You are almost certainly correct. The principle of issue preclusion under the Double Jeopardy clause has been extended to bar a retrial of a mistried charge when a new trial would require a jury to find a fact at odds with a previous acquittal. See this case: www.ca11.uscourts.gov/opinions/ops/200517045.pdf. I don't know why it wouldn't bar a new trial in this instance just because a new substantive crime is charged.
5.1.2007 1:11pm
Kenvee:
But Hopkins committed an intervening act after his acquittal -- namely, he took his wife off life support, thereby causing her death. If you can show that was his intent all along from the time he shot his wife, you may be able to get around DJ that way.

Just an off-the-cuff response before heading to lunch, so I may be way off-base. ;)
5.1.2007 1:16pm
Anderson (mail) (www):
Was the judge Lance Ito? Because that would explain a lot.
5.1.2007 1:19pm
Visitor Again:
As one who practiced criminal law for decades, I think you're absolutely right, Eugene.

did the movie have a legal advisor, as do many movies with legal issues?

A long time ago, around 1970, I served as a consultant to a tv series called The Young Lawyers. I got calls from script writers. My experience was that the they ignored the law if it was too inconvenient for their story.
5.1.2007 1:20pm
blindgambit:
I was thinking attempted murder as a specific intent crime is the distinction. For instance, can't you be charged with murder with the mens rea of recklessness? That would not necessarily require the jury to find a specific intent to cause serious bodily injury, which would be required for an attempted murder chage.

I agree no double jeopardy bar b/c murder isn't the same offense as attempted murder- it has the added element that the victim dies.
5.1.2007 1:23pm
AppSocRes (mail):
If my memory serves me correctly, one of the early (pre-Sam Waterson) Law &Order cases involved the use of collateral estoppel in a murder trial where the defendant was acting pre se.
5.1.2007 1:26pm
Martin Grant (mail):
>The movie ends with everyone expecting Hopkins to get his just deserts at the criminal trial.

I don't necessarily see this as a problem with the movie. Why can't the prosecutor simply be wrong in the movie? Is the audience forced to assume at the end of the movie that the prosecutor is right and infallible? (Obviously not as you have done otherwise.)
5.1.2007 1:35pm
CEB:
AppSocRes,

I don't know if this is the one you're thinking of, but there was a L&O where a woman was charged with the murder of a man who kept her as a sex slave. While on the witness stand, the defendant's mother confessed to the crime. The defendant was acquitted, then it was later discovered that the mother had lied on the stand and the defendant had in fact killed the man. Double Jeopardy prevented the woman from being tried again. I always thought something must be fishy about that story, but I don't know what.
5.1.2007 1:46pm
RichC:
This brings to mind a Quincy, M.E. episode. Some baddie kidnaps a little girl for ransom (the DA's daughter, I think -- it's been a long time) and blackmails the DA into blowing the case, resulting in the kidnapper being acquitted. After the acquittal, he brags publically about being the kidnapper and being totally off the hook. But Quincy rides to the rescue by finding some particular kind of sand, or brine shrimp, or something, in the girl's hair. Said material only existing in Death Valley National Park. Which means the Feds now were able to put him on trial.
5.1.2007 1:51pm
Eugene Volokh (www):
blindgambit: The trouble is that, as I understand it, the prosecution's theory is that he shot his wife trying to deliberately kill her. That was the theory at the attempt trial, and it would be the theory at the murder trial. It's the only theory supported by the evidence.

So I don't see how the earlier verdict would be seen as resting on the possibility that he shot but without trying to kill his wife. But even if it was, and the prosecution is collaterally estopped only from proving that he shot at her trying to kill her, wouldn't that still foreclose the subsequent murder prosecution, which would be based precisely on the intent-to-kill theory?

Martin Grant: As I understand it, the emotional payoff of the movie is supposed to be that Hopkins gets his just deserts, and justice (substantive justice, not technical justice) prevails. If in the fictional world of the movie Hopkins gets the case dismissed on collateral estoppel grounds, but the filmmakers just don't show that, isn't that some sort of cheating?
5.1.2007 1:52pm
DiverDan (mail):
Good catch. In my experience, many movies concerning legal themes have legal errors, sometimes even fatal to the plot. Another example is the film "The Rainmaker", based on a John Grisham Novel -- not sure if the Book had the same error, as I do not as a practice read legal-themed fiction; legal fact is usually more than amusing enough. At the very end of the movie, after the Matt Damon character, a plaintiff's lawyer, won a multi-million dollar judgment against the evil health insurance company that willfully denied all claims, the Insurance Company's lawyer calls up and tells the Plaintiff's lawyer that his client has "filed for Chapter 11," and that none of the judgment would be collectible. Only problem -- insurance companies are not eligible debtors under the Bankruptcy Code, and legally cannot file for Chapter 11 relief; insolvent insurers are placed in a state-ordered receivership and liquidated under state law. John Grisham is obviously a better writer than he is a lawyer.
5.1.2007 1:57pm
Anderson (mail) (www):
John Grisham is obviously a better writer than he is a lawyer.

To his credit, he seems to have recognized that very early on.
5.1.2007 2:00pm
Joe Jackson:
While we're on the topic of Grisham, how about Tom Cruise's "surprising" use of mail fraud as a RICO predicate in The Firm? It was soooo shocking that the head federal agent says something like, "Mail fraud? How did you think of that?" Please.
5.1.2007 2:12pm
Tinhorn (mail):
Could it be that collateral estoppel is applied based upon a balancing of factors, one of which is the incentive the parties had in the first case vs. the second case? Thus, if a fact is found in one case allowing a defendant to avoid a $1000 payment, collateral estoppel might not be applied to that fact in a second case if the amount in controversy is $1,000,000 -- plaintiff did not have the same incentive the first time, so should not be bound to that fact when the stakes are larger. (Note -- this is an argument that can be made by Plaintiff. It will not necessarily always be a winner.)

In the criminal context (but I'm not a criminal lawyer), could the prosecution argue that they collateral estoppel should not apply in this MURDER case to a fact found in merely an attempted murder case (when the "incentive" arguably was less)? Sure, might be a weakish argument, but if the judge is inclined to see justice served, there might be enough doctrinal wiggle room to work with. (Compare -- I find it difficult to believe that a fact found during a traffic violation trial would act as collateral estoppel in a later murder trial. Couldn't it be reasonably argued, at least to a willing listener, that attempted murder vs. murder is just a closer case of the same principle?)
5.1.2007 2:21pm
blindgambit:
EV:
I was shooting a little in the dark, having not seen the actual movie. Does collateral estoppel bar you from trying the murder case as a mens rea of recklessness? In other words, the prosecution's theory during the attempted murder trial was that he, with the intent to seriously injury, etc, shot his wife in the back of the head.

On the trial for murder, would collateral estoppel bar them from arguing his actions leading to his wife's shooting were reckless or deliberately indifferent? It sounds like your response was that such a theory would be impractical given the actual facts of the case, but I don't know if collateral estoppel would bar such a theory.

I certainly could be wrong, though. Perhaps I'm just trying to believe that Hollywood would have done a little research before putting out this legal thriller.
5.1.2007 2:32pm
Alex Blackwell (mail):
This reminds me of the "perpetuities" issue in the 1981 film "Body Heat."

Although somewhat dated, see Estate Planning and Body Heat.
5.1.2007 2:34pm
Bobbie (mail):
Just charge him with a minor crime, convict him, and then during sentencing, prove by a preponderance of the evidence that he committed the murder and sentence him to life in prison based on the murder. Presto, good-bye double jeporady problem!
5.1.2007 2:37pm
AppSocRes (mail):
Just playing with the law her, but if this case were tried in Scotland would collateral estoppel apply if the first case ended in a verdict of "Not Proven"?
5.1.2007 2:43pm
Philistine (mail):
Life Imitating Art or vice versa?

I wonder if the writers of the script were aware of the above case, or its just a conincidence:


Lawyers for a man who served 15 years in prison for beating and choking his girlfriend -- who eventually died -- have asked a judge to dismiss murder charges against him, saying he already served his time.

Walter Hutchinson, 50, was convicted of the attempted murder of Kimberly Ernest in 1991. She had been in a vegetative state until she died in November 2005 at age 35.

Prosecutors charged Hutchinson with first- and second-degree murder last December.

5.1.2007 3:22pm
WL (mail):
The trouble with this movie starts long before they reach the double jeopardy question. The Hopkins character is supposed to be brilliant and meticulous, but could he be any more incompetent? His intent is to kill his wife, and he can't do it with a shot to the face from three feet away. He has ample time to check for vitals and finish her off before the police arrive, but does he think of that? No, of course not, because the Gosling character's victory depends on Hopkins bungling the initial crime.
5.1.2007 3:29pm
logicnazi (mail) (www):
RichC,

I thought I read about a case like this awhile ago. Basically my understanding was that the courts found that one needed to face a genuine risk of conviction (not the right wording) to trigger double jeopardy. Thus if you bribe/blackmail the judge or the prosecutor double jeopardy is not triggered because you were never in jeopardy in the first place.

Then again for all I know I could be remembering another law and order episode but I think not. Although the situation I remember was just about the judge, I suspect it would be the same if you bribed the prosecutor.
5.1.2007 3:40pm
Bobbie (mail):
A total aside, but something I've wondered for a while: logicnazi -- isn't your screenname a bit offensive? I mean, "nazis" killed millions of people and you're using it has your handle to show what exactly? I never understood the casual way people use the noun nazi to describe something.
5.1.2007 3:47pm
Andrew Okun:
A couple of questions.

(a) More than one defendant. Is it the case that collateral estoppel only applies in criminal cases because of double jeopardy? If that is the case does that mean that the same prosecuting agency can try to prove the same rubbish over and over with regard to different defendants? For example, if one guy is acquitted of a crime which he allegedly committed with an accomplice and the evidence was so strongly dependent on facts put forward by a cooperating witness that the verdict can only mean the jury didn't believe that witness, can a prosecutor then put on the same evidence and make the same claims in a trial against the accomplice?

(b) Isn't the double jeopardy restriction usually interpreted as something like "can't be tried for a crime that has the same essential factual basis as the charge you were acquitted of." The formulation "bound by the facts necessarily found seems like a much narrower restriction. Supposing a mob heavy heaves a guy off a cruise ship for failing to pay up. An AUSA, having a thin case but believing that he might have a stronger one a year later, charges him with "violent crimes in aid of racketeering" and he is acquitted. The jury might have found that the evidence was insufficient to conclude he killed the guy ... or it might have found the evidence of a mob-related motive to be uncompelling. It is hard to say what it "necessarily" found. A year later, with better witnesses and forensics, the same prosecutor files for plain old murder under admiralty jurisdiction. Same basic facts; same sovereign; but "necessarily" lets him out. Nothing to do with Fracture just a fun question.

(c) can't Gosling switch to a strikingly different statute ... use his new evidence to prove obstruction of justice instead? Different law, different acts. You may be allowed, if asked by a cop whether you committed a crime, to say "no" even when you did it without being charged for lying to the cop, but that exception is incredibly narrow, no? You are not allowed to shred documents and burn photos to dodge the prosecution. And in Hopkins new trial, all the murder evidence comes in, prejudicial though it may be. Gosling can prove to the jury 1) the murder in all its grisly detail 2) Hopkins' acts in covering up the murder and 3) the acquittal (proving the materiality of the obstruction. Is Gosling bound to tell the jury that Hopkins is innocent of murder?
5.1.2007 4:03pm
Patterico (mail) (www):
I think Sasha is right as a general matter. At least in California, murder may be tried on theories of implied malice *or* specific intent to kill, whereas attempted murder requires the latter. I don't know the specific facts of the movie, but it seems to me that while the prosecution would be barred from trying the murder on a theory of specific intent to kill, nothing would bar them from trying the murder on an implied malice theory. The only issue necessarily decided by the previous trial was the lack of a specific intent to kill. But that's not fatal to a murder prosecution (pardon the pun). Even if the prosecution's theory at the attempted murder trial was specific intent to kill, why couldn't they argue at a murder trial that he pointed the gun at her, intending to shoot her, and knowing that shooting her could easily kill her -- but need not have intended to kill her? What I have just described is a colloquial, not entirely precise, but *roughly* accurate description of an implied malice theory. It's a theory that becomes available only when you have a dead body -- a gap in the law that should be remedied. I may post about that later if I have time.
5.1.2007 4:19pm
Happyshooter:
Speaking of the misfortune of having a body on federal property as a criminal...here in Michigan we do not have the death penalty. The first man convicted and sentenced to death since 1938 decided that his girlfriend might rat on him in a drug case. He was convicted in federal court of the murder.

He killed her and threw her in the lake, then threw their baby in the lake as well. The body was found floating in the middle of the lake, half of the lake was federal and half of the lake was state.

There was some dispute as to where he did the killing, but once the jury heard about the baby, they were able to find without a reasonable doubt that the killing had been done on the federal side and that the guy could be executed.
5.1.2007 5:12pm
CAM (mail):
Patterico,

Without disagreeing with your general point, on the “facts” of this movie, collateral estoppel clearly applies, notwithstanding the fact that, in another case (or movie?), your distinction between specific and general intent might be grounds to allow the second trial.

In the movie, Hopkins’ defense -- and the reason for granting the judgment of acquittal -- was the lack of physical evidence connecting Hopkins to the shooting. There was no murder weapon, and no blood or gunpowder on Hopkins or his clothes. Intent simply was not an issue in the case, at least as it was edited for the movies. (Eugene is right that there was probably enough circumstantial evidence to let the case go to jury, but I suppose we have to ignore that for now.)

Because intent was not an issue in the first trial, under Ashe v. Swenson, the hypothetical distinction between specific and general intent would not be grounds to allow the second trial: “[T]he rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine that record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’”
5.1.2007 5:30pm
Shipwreckedcrew:
The holding of Ash v. Swensen is a little more complicated than how it is summarized. What the Supreme Court said is that the second trial court, the one entertaining a second criminal trial, must examine the record of the prior acquittal, and determine what facts were necessarily decided by the acquittal. Quoting Justice Holmes in the Maryland case, the Court affirmed that its not enough to say that an acquittal simply represents a failure of the government's proof to surmount the high burden of proof beyond a reasonable doubt with respect to the case as a whole. But, it should be noted, that there is a long line of authority in many jurisdictions, including federal law, that a general verdict of acquittal determines no "facts" in the favor of the Defendant.

The facts of Ash were that there was an armed robbery of 6 players at a poker game . The defendant was charged as one of the robbers. He was initially put on trial with respect to only one of the victims, and he was acquitted.

The legal elements of the crime with which he was charged was 1) that there was a robbery; 2) that the named victim was one of the player in the game from whom something of value was taken by force; and 3) the defendant was a participant in the robbery.

The defendant was acquitted after a trial where the only matter in dispute was the third element -- whether he was a participant. The facts were undisputed that there was a robbery, and the victim was player from whom something of value was taken by force.

From a review of this record, the Supreme Court found that the jury's general verdict of acquittal in the first trial necessarily established for all future purposes -- including a second trial with respect to another victim -- that the defendant was not a participant in the robbery. That resolution was "collateral estoppel" on that fact. Since a contrary finding in a second robbery trial was precluded by law, the defendant could never be convicted of having participated in the robbery.

Now, in turning to the movie, you would have to compare the elements of the offense of attempted murder to the evidence presented by the prosecution, in order to determine if the acquittal constituted collateral estoppel as to any specific element, and whether that same element is necessary to prove the separate crime of murder.

I'll leave it to state prosecutors to opine as to the specific elements. But, as I recall the movie, the basis of the acquittal was not that he lacked specific intent to kill -- but rather the absence of any evidence that linked him to the shooting. Being "merely present" at the scene of a crime is not sufficient evidence to infer participation.

The confession was tossed, and there was no gun. She had a bullet in her head, but there was NO EVIDENCE of where it came from or who pulled the trigger.

I think it could be argued under Ash v. Swenson that the judgment of acquittal was necessarily entered on this point -- that he was not the shooter because there was no evidence presented that he was the shooter.

That would bar a retrial for murder under Ash.
5.1.2007 5:36pm
CheckEnclosed (mail):
Speaking of Grisham's "Rainmaker" wasn't that the one where the State Court Judge got to rule on a "motion" to remove the case to federal court? (Plus all sorts of ex parte contacts between plaintiff's counsel &the judge)
5.1.2007 5:36pm
Pencilnub (mail) (www):
I saw that movie and thought it was decent.

First, I'm no legal scholar.

In a case like this, where the prosecution realizes that they can't win, what if they dropped the charges. Would that take everything back to square one? If Hopkins' character then removed his wife from life support, could he then be tried for murder with no complications?
5.1.2007 8:25pm
Colin (mail):
Pencilnub,

I haven't seen the movie, so I'm not sure if this was a jury trial or not. In general, jeopardy attaches once a jury is impaneled, so dropping the charges wouldn't allow the prosecution to try again. I'm not sure how that works in a criminal bench trial, never having seen one.
5.1.2007 8:51pm
Lev:

If my memory serves me correctly, one of the early (pre-Sam Waterson) Law &Order cases involved the use of collateral estoppel in a murder trial where the defendant was acting pre se.


There was a movie with Ashley Judd in which the heroine was framed for the murder of her husband and sent to the slammer. After spending sufficient time she was paroled, found out her husband set her up, and went to find him and actually murder him this time.
5.2.2007 12:29am
d b:
Colin,
My understanding (confirmed by the always reliable legal authority of my criminal adjudication outline) is that jeopardy attaches in a bench trial when the first witness is sworn. Can anyone confirm that? (Possibly, with, you know, actual legal authority.)
5.2.2007 1:04am
gerard:
"There was a movie with Ashley Judd in which the heroine was framed for the murder of her husband and sent to the slammer. After spending sufficient time she was paroled, found out her husband set her up, and went to find him and actually murder him this time."

The movie was Double Jeopardy, and, as you might expect, it was premised on the idea that, having already done the time, Judd was legally, not just morally, entitled to kill her husband for real. Tommy Lee Jones, as the cop chasing down yet another innocent fugitive, confirmed to the viewer that this was the state of the law. I have some friends who still don't believe this isn't true.

I first came across this notion in an episode of Crazy Like a Fox, the Jack Warden vehicle. At least the writers of that show made it clear this was an error by a deranged lunatic, not the law
5.2.2007 5:28am
BruceM (mail) (www):
This seems to be somewhat on point.

AMJUR HOMICIDE § 183
§ 183. Trial for lesser offense as acquittal of, or bar to prosecution for, greater offense—Where new fact intervenes after first prosecution; trial for assault as bar to prosecution for homicide


According to a general precept of criminal law,[FN82] if, after the first prosecution, a new fact supervenes for which the defendant is responsible, and which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct crime, an acquittal or conviction of the first offense is not a bar to an indictment for the other distinct crime. Thus, neither an acquittal,[FN83] nor a conviction for or plea of guilty to an assault charge while the person assaulted is still living will bar a prosecution for murder or manslaughter instituted after the person assaulted dies on account of the injuries received; and the trial for murder does not place the defendant twice in jeopardy.[FN84] While double jeopardy does not preclude a defendant's convictions for felony-murder when the victim dies after the defendant has been convicted of an assault offense, double jeopardy requires that the prior conviction for the assault offense be vacated.[FN85] A defendant who has pled guilty to and been sentenced for driving while under the influence of an intoxicant and other driving offenses can subsequently be prosecuted for vehicular homicide when the victim dies after the disposition of initial charges against the defendant.[FN86]
5.2.2007 4:32pm
Stash:
Bruce M:
Hmm. What is the case cited at FN83 in the AmJur in support of the statement?
5.2.2007 6:40pm
BruceM (mail) (www):
Stash:

Several, actually. Here is the full FN83:

[FN83] U.S. v. Jackson, 528 A.2d 1211 (D.C. 1987) (distinguished on other grounds by, Jones v. U.S., 719 A.2d 92 (D.C. 1998)); State v. Wilson, 85 Ariz. 213, 335 P.2d 613 (1959); People v. Harrison, 395 Ill. 463, 70 N.E.2d 596 (1946), cert. denied, 334 U.S. 812, 68 S. Ct. 1013, 92 L. Ed. 1744 (1948); Robinson v. State, 307 Md. 738, 517 A.2d 94 (1986); People v. Williams, 61 Mich. App. 642, 233 N.W.2d 122 (1975).


I have not read any of these cases and I am not arguing for the validity of the AmJur's summary here, but it seems to be on point. Also see section 182 of AMJUR HOMICIDE which seems to be relevant as well.

I can tell you this without even attempting to research it. The Texas Court of Criminal Appeals would allow the subsequent murder prosecution of Anthony Hopkins' character and summarily throw out a double jeopardy/res judicata/collateral estoppel argument. The character is guilty, so therefore the double jeopardy clause should not apply. The facts are different and the charges are different, so the state can prosecute him, the CCA would hold. No doubt in my mind.
5.2.2007 7:10pm
Just Wondering:
The applicability of Ashe is limited, is it not, by the procedural differences between the two cases. In skimming the Ashe opinion, it says that the evidence was fully presented and went to the jury. The jury specifically found that the there was a robbery and something of value was taken from the victim (though this was apparently undisputed) but that the defendant was not a participant in the robbery. In Fracture, the trial is stopped in the middle when Hopkins interrupts the direct examination of the detective to accuse the detective of sleeping with the victim and "beating" a confession out of him. The judge then decides, almost sua sponte, to throw out the confession without a suppression hearing and proceed with the trial the following Monday. When they reconvene, Hopkins makes a motion for a judgment of acquittal based on the fact that Gosling's character has come up with no new evidence, which is sustained. Why he didn't appeal the suppression to give himself more time is beyond me, but anyway . . . Ashe states that

"Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to

examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.

So, given that the record contained no evidence about the confession, no evidence about the gun, etc., couldn't it be said that there are a host of other grounds by which a rational jury (if there had been one) could have grounded its verdict upon? Just wondering
5.3.2007 1:01am
BruceM (mail) (www):
What upsets me about this movie (I have not seen it, just basing my opinoin on what I've heard here) is that it causes people to think that 'clever lawyers' and 'technicalities' cause confessions to be kept out of court all the time. In reality NO judge would have suppressed this confession, and a suppressed confession is as rare as a flying pig. If it's going to happen it will be the court of appeals doing the suppressing.
5.3.2007 9:04am
Jay D. Homnick (mail):
Patterico referred me to this after I asked him the question on his blog. This was a very well-presented and thoroughgoing analysis.

Of course I have the disadvantage (or advantage) of not having studied law. I would pat myself on the back for picking up this issue as a gifted amateur, but I fear dislocating my shoulder.

Here is another point I considered, but which has not been addressed above. If the right to euthanize one's next-of-kin is a compassionate right under the law, how can the death administered under this rubric get tacked on to the original act to add up to murder? The way to dramatize this point is if the next-of-kin is not the shooter. Does it become murder because the schmo relative decided to dispatch her beyond the reach of medicine and machinery?

Incidentally, when I saw Double Jeopardy I was fuming. Not only because I had a similar idea in the hopper that I had to junk. But because since she had not served her full sentence and was only on parole, if she killed the husband she would not be helped by double jeopardy. The Parole Board could simply toss her back in the can for violating parole.
5.3.2007 3:22pm
RigelDog (mail):
I saw and enjoyed the movie, and have wondered the same thing---I am also a prosecutor.

I think that the DA would be prevented from trying to prove that Hopkins shot his wife, so the retrieval of the bullet is a red herring. But he might be able to use evidence he never presented before to simply take up the narrative from the pulling of the plug. If there is other evidence to show that Hopkins hated his wife and desired her death, then the DA might be able to convince a jury that life-support was discontinued because of a malicious intent to kill. Perhaps the DA could testify as to conversations he had with Hopkins where Hopkins expressed his desire for his wife's death.
5.3.2007 3:50pm
Jay D. Homnick (mail):
The comment by RigelDog brings my point into even sharper relief. He (or she) assumes that a person with the legal right to pull the plug could be prosecuted for pulling it if murderous intent would be demonstrated.

That premise strikes me as dubious. I should think the state by granting that right cedes the power to judge it on intent. By definition, making this a choice for a next-of-kin should remove it from the range of the law's disapprobation.

And how about my earlier point? Let's say there was no estoppel issue. Can a person be tried for murder if his act put the victim into a coma and a next-of-kin (whether the shooter or another) pulls the plug? Is the death deemed to be a direct result of the initial act of aggression?
5.4.2007 2:48am
RigelDog (mail):
Jay Homnick notes that my earlier post assumes that a person with a legal right to pull the plug might still be subject to a possible homicide charge. I agree; I was looking for a possible chink in the double jeopardy/estoppel barrier but definitely acknowledge that there are other issues involved.
Pennsylvania homicide statute seem to allow for the charge, though. Murder (1st) is an intentional premeditated killing with malice (hardness of heart and disregard of social duty).
5.4.2007 8:15am
Jay D. Homnick (mail):
Incidentally, RigelDog, your premise is directly opposed to the movie D.A., who counted the initial act as murder because the eventual death, after the plug was pulled, was still traceable to the shot. You want to count pulling the plug - with malicious rather than compassionate intent - as murder.

Of course, if someone shot the coma victim before the plug was pulled, even with compassionate intent, that would be murder. And even if they shot after the plug was pulled, there is an argument to call that murder. (In the jurisprudence of fifty years ago, it was assumed that if A shot B sufficient to end life but C fired a fatal shot into B before A's shot killed him, C was guilty of murder. I'm not sure if that is still true.)
5.4.2007 12:33pm