I pit anyone and everyone who let this happen

[magellan01]

Well, an eleven-year-old girl is in the hospital. The best to be hoped for is that she will one day open her eyes. She is now the subject of a legal battle. On one side is her mother (who gave her up for adoption five years ago) and the state, who want to end the girls suffering. On the other side is the girl's father, who has been charged with beating the girl and sending and sending her to the hospital, and who also faces murder charges if the girl dies.

Here is an excerpt from the article: (http://insider.washingtontimes.com/articles/normal.php?StoryID=20051206-120428-5374r)

WESTFIELD, Mass. -- Allison Avrett's photos show her daughter Haleigh as a smiling little girl with brown bangs hanging over her squinting eyes.
Those pictures were taken before Mrs. Avrett gave up Haleigh for adoption five years ago, and long before the purported beating that landed the 11-year-old in a hospital attached to the ventilator and feeding tube.
Now, with Haleigh's doctors saying she will never recover from her vegetative state, the child is at the center of a life-and-death legal struggle.
The state Department of Social Services, which has had custody of Haleigh since she was hospitalized Sept. 11, wants to remove her from life support.
Her stepfather, Jason Strickland, who is charged in her beating and could be tried for murder if she dies, wants to keep the girl alive. He is free on bail while awaiting trial.
A juvenile court judge has ruled that Haleigh should be allowed to die. Mr. Strickland has appealed, and the state's highest court is scheduled to hear arguments in the case today.
Mrs. Avrett, who gave up her parental rights when she let her sister adopt Haleigh in 2000, says her daughter should not suffer anymore.
"They say the most she might ever do is open her eyes," said Mrs. Avrett, a 29-year-old stay-at-home mom with two other children. "I don't want her to sit there longer than she needs to."
Police say the injuries that left Haleigh with severe brain-stem injuries came at the hands of Mr. Strickland and his wife, Holli, Mrs. Avrett's sister.
Within two weeks after the couple pleaded not guilty to the beating. Mrs. Strickland was fatally shot in her grandmother's West Springfield apartment. The body of her 71-year-old grandmother, Constance Young, was beside her. The suspected double suicide or murder-suicide is under investigation.

How the hell does a kid get dealt a hand like this? Another passage:

According to court documents filed by Mr. Strickland's attorney, Haleigh had been hospitalized during the past three years for self-inflicted injuries. The girl's reported tendency to hurt herself is a cornerstone of Mr. Strickland's defense.
But Alicia Weiss, a baby sitter for Haleigh, testified at a hearing in Mr. Strickland's criminal case that she saw Mrs. Strickland kick the girl down the stairs repeatedly and hit her with a baseball bat. She said she also saw Mr. Strickland hit the girl twice with an open hand and once with a plastic stick.

And this guy is out on bail?!

Where were the school officials? Were they blind? We could ask "Where was the state?" But the department of social services are the ones that urged the mother give her daughter up for adoption to her sister.

This poor little kid. I know that this is more of a lament than a pitting, but this just leveled me. Sorry.

I'm further saddened by the fact that there can be no justice here. There is nothing—nothing—that can be done to those responsible that will either help this little girl or make the father pay enough. A death sentence, which I would advocate in some instances, seems to give this guy an out. He should be locked in a room for the rest of his life with the cries of that young girl piped through constantly.

And I pit in advance anyone who does anything for this guy other than increase his level of suffereing. Lawyers, take note.

[GrizzRich]

I've got no words for this.

[jali]

I don't have anything appropriate to say either. I just wanted to support your pit.

[smiling bandit]

Ouch. Just... ouch.

[Amazon Floozy Goddess]

The worst kind of cowards are those who prey on the defenseless.
If he doesn't receive due judgement in this life, may he rot in the next.

[tdn]

The poor kid. This is so sad.

A death sentence, which I would advocate in some instances, seems to give this guy an out.
There is no DP in MA.

Legal question -- if the girl dies, Strickland gets tried for murder. If the state lets the girl die via euthenasia, does that count towards a murder charge? In other words, can the state force a murder charge on Strickland by killing the child?

[Revenant Threshold]

I read about this in the paper. Poor kid. :( The whole thing is just fucked up.

[betenoir]

According to court documents filed by Mr. Strickland's attorney, Haleigh had been hospitalized during the past three years for self-inflicted injuries. The girl's reported tendency to hurt herself is a cornerstone of Mr. Strickland's defense.

:eek: What?

I mean...what????

Is he actually suggesting as a defense the she beat her self to death???? If not, what could he possible be suggesting? Her tendency to hurt herself (if that's what happened) is just evidence that life in that household was unbearable even before he picked up the baseball bat.


And...my god what went on here? This is the sister who was a better candidate for mother?

[betenoir]

Legal question -- if the girl dies, Strickland gets tried for murder. If the state lets the girl die via euthenasia, does that count towards a murder charge? In other words, can the state force a murder charge on Strickland by killing the child?

I think the better question is can Strickland weasel out of murder charge by keeping her alive. Which seem to be what he's trying to do.

Not that the state procecutors should have a say in it either. I would hope it would be a medical decsion...but then that's a lot to hope for under the circumstances.

[furlibusea]

I listened to an account of this on NPR (http://www.npr.org/templates/story/story.php?storyId=5042178) this morning. They were quoting a doctor who said that her brain stem had been sheered. This child is not going to open her eyes, and she will not be waking up.

The report said that she was taken out of her mother's home because the mother's boyfriend was sexualy abusing her. Child protective services seem to have been in and out of the addoptive home regularly, fairly recently. The family was in the radar, I have no idea why the hell this child was still in the home.

I am torn about removal of life support, but very few people live long after this kind of injury, even with life support. It takes a lot of care beyond the life support systems to keep them alive. Usualy they die of infections from bed sores or from pnemonia or from one of the many hospital bugs. She will die, most likely sooner, rather than later, and eventually the bastard better be charged with murder.

[Marley23]

This is one of those things you hear about and just know there will soon be a Pit thread about it. This is just horrible, and he'd better not be allowed to make this decision.

[faithfool]

I wonder about this part....

But Alicia Weiss, a baby sitter for Haleigh, testified at a hearing in Mr. Strickland's criminal case that she saw Mrs. Strickland kick the girl down the stairs repeatedly and hit her with a baseball bat. She said she also saw Mr. Strickland hit the girl twice with an open hand and once with a plastic stick.

Was the baby sitter a minor and therefore felt she couldn't do anything? I mean, even they can call child protective services anonymously, right? Or an adult (if she is under age) could report it for her. She witnessed plenty on her own.

And it makes one just a bit suspicious about the 'murder-suicide'.

[magellan01]

Child protective services seem to have been in and out of the addoptive home regularly, fairly recently. The family was in the radar, I have no idea why the hell this child was still in the home.

Can someone who works for CPS (the case worker) be held accountable in some way? Is there some thershold of abuse or pattern of abuse that, once crossed, he, or she, must remove a child, and the failure to do so has consequences beyond a scolding or firing?

[rainwalker78]

I don't have anything appropriate to say either. I just wanted to support your pit.

The worst kind of cowards are those who prey on the defenseless.
If he doesn't receive due judgement in this life, may he rot in the next.


I agree. This kind of thing sometimes makes me feel that there is no hope for us.

[The Weird One]

I heard about this on NPR this morning. Just the end of the story, about the step-father trying to keep her alive so he won't be charged with murder. It's good to hear he's concerned about her welfare. :rolleyes: :mad: :mad:
I hope someday he realizes how much pain and suffering he caused, but as that's unlikely, I hope he rots in hell.
May her next life be filled with loving kindness.

[Campion]

Legal question -- if the girl dies, Strickland gets tried for murder. If the state lets the girl die via euthenasia, does that count towards a murder charge? In other words, can the state force a murder charge on Strickland by killing the child?It isn't "forcing a murder charge." The medical decisions regarding the child's care are being made by her doctors, who, I understand, have petitioned the court to remove some or all of her life support. That's why Strickland is petitioning to be named her guardian; as her guardian, he can order the life support to continue and thus delay when he will be tried for her murder. He can also hope that there will be some independent intervening cause that he can suggest is the actual cause of her death (a mistake in the hospital with the wrong medication, or an infection). But once life support is removed, the state will amend the charges against Strickland to add murder, because the cause of her death will not be the removal of life support; the cause of her death will be the injuries inflicted allegedly by Strickland.And I pit in advance anyone who does anything for this guy other than increase his level of suffereing. Lawyers, take note.So noted. I won't bore you with the reasons this is impossible, but will simply say that I hope that this young girl's attacker or attackers are tried, accorded all rights due them under the constitution and rules of court, and then convicted.

[tdn]

It isn't "forcing a murder charge." The medical decisions regarding the child's care are being made by her doctors, who, I understand, have petitioned the court to remove some or all of her life support.
Yeah, I suppose so.

Not to defend the jerk, but to me it seems like a bizarre form of justice to try the guy based on a decision that doctors make. I think he should be tried in one particular way regardless of the decision. But I realize that's not how the justice system works.

[Kythereia]

I think I need to go kick the crap out of my punching bag now.

[Campion]

Yeah, I suppose so.

Not to defend the jerk, but to me it seems like a bizarre form of justice to try the guy based on a decision that doctors make. I think he should be tried in one particular way regardless of the decision. But I realize that's not how the justice system works.Think about it this way. Suppose George shoots John. The police arrive, and bundle John into an ambulance. John is taken to the hospital, where the doctors rush him into surgery. John does not survive surgery. George killed John.

Suppose instead that John survives surgery, and is put on life support, but after a day, he dies. George is still responsible.

I recognize that this is a harder case to visualize because of the attenuation between the time of the attack and the time when we agree that death has occured, but the question for the court will be a medical one: what is the cause of the victim's death? If the cause is injuries resulting from a beating, then you arguably have murder (I say arguably because I don't know the law in whatever state this is).

[pravnik]

And I pit in advance anyone who does anything for this guy other than increase his level of suffereing. Lawyers, take note.
So noted. I won't bore you with the reasons this is impossible, but will simply say that I hope that this young girl's attacker or attackers are tried, accorded all rights due them under the constitution and rules of court, and then convicted.And I'll just add that without lawyers willing to step up and provide a legal defense even to the most wretched and loathesome elements of society despite their personal feelings on the matter, that conviction would indeed be impossible.

[phungi]

with all the stray bullets flying around this country, you would think that just one could find its way into this guys eye socket...

[tdn]

Think about it this way. Suppose George shoots John. The police arrive, and bundle John into an ambulance. John is taken to the hospital, where the doctors rush him into surgery. John does not survive surgery. George killed John.

Suppose instead that John survives surgery, and is put on life support, but after a day, he dies. George is still responsible.
Suppose that John loses the use of his legs, and therefore cannot exercise, and as a result dies of cardiac arrest at age 75 instead of cancer at 85.

Or suppose that the surgeon working on John leaves a sponge inside him, and John gets sepsis and dies.

OK, this could get very silly very soon. It just seems odd to me that doctors could choose to terminate the girl's life, and therefore change the nature of Strickland's crime. Killa girl, get a better conviction. It seems like the cart pulling the horse.

[Campion]

Suppose that John loses the use of his legs, and therefore cannot exercise, and as a result dies of cardiac arrest at age 75 instead of cancer at 85.You're not going to be able to prove legal causation.

Or suppose that the surgeon working on John leaves a sponge inside him, and John gets sepsis and dies.Independent intervening cause? Or a foreseeable consequence of George's actions (i.e., it's foreseeable that this would happen to John, so George must bear the consequences).

OK, this could get very silly very soon. It just seems odd to me that doctors could choose to terminate the girl's life, and therefore change the nature of Strickland's crime. Killa girl, get a better conviction. It seems like the cart pulling the horse.Doctors aren't terminating her life; they're recognizing that she's already dead, and that the withdrawal of life support simply will permit people to recognize her death.

I'll stop there, lest I (again) hijack a perfectly good pitting to wax eloquent about a finer point of law that's interesting only to me.

[Larry Mudd]

It just seems odd to me that doctors could choose to terminate the girl's life, and therefore change the nature of Strickland's crime. Killa girl, get a better conviction. It seems like the cart pulling the horse.It's not like the doctors would be actively doing anything. The girl stopped breathing as an immediate consequence of the beating. She has irrepairable brainstem damage as an immediate consequence of the beating.

She will never regain consciousness, never breath on her own, and never swallow another bite of food or water. She's dead. She's been murdered.

Having a plethora of machines and support workers going 24 hours a day to keep her body hydrated, her blood oxygenated, and her stomach full, and attempting to move the body frequently enough to minimize muscle death isn't keeping a human being alive -- it's maintaining an integrated collection of tissue cultures.

[pravnik]

Suppose that John loses the use of his legs, and therefore cannot exercise, and as a result dies of cardiac arrest at age 75 instead of cancer at 85.

Or suppose that the surgeon working on John leaves a sponge inside him, and John gets sepsis and dies.

OK, this could get very silly very soon. It just seems odd to me that doctors could choose to terminate the girl's life, and therefore change the nature of Strickland's crime. Killa girl, get a better conviction. It seems like the cart pulling the horse.You've hit on the distinction between actual cause and proximate cause as it pertains to criminal law. In each of the hypos you describe, the assaults resulting in John's injury would be an actual cause of John's death, but a prosecutor also has to prove "proximate cause" (also called "legal cause" as Campion says), which refers how far back the prosecutor can go in the chain of events to say whether or not the defendant's actions can be considered the legal cause of the decedent's death. Generally, proximate cause has to do with how foreseeable the death was from the nature of the injury. The common law answer to your first question would be that no murder took place because the person did not die within one year and one day of his injuries (the so called "year and a day" rule), but that has been abrogated by statute in many states and the rule will vary. The answer in most (probably all) jurisdictions, though, will be that an assault that eventually causes a general health decline in the victim's twilight years won't be murder.

The answer to your second question will (as usual) vary, this time on which law the state uses regarding medical malpractice as an intervening or superceding cause of death. Generally the rule is either that medical malpractice does not absolve one who causes another serious bodily injury of crminal liability even if the malpractice contributes to the death, that only gross negligence that constitutes the sole cause of death will absolve criminal liability, or that a jury must decide whether the malpractice was foreseeably within the risk of death caused by the defendant. It's a complicated question.

I'll stop there, lest I (again) hijack a perfectly good pitting to wax eloquent about a finer point of law that's interesting only to me.Don't worry, you're not the only law nerd in the thread.

[tdn]

Well, it looks like I'm getting quite a legal education here! This is good stuff.

So for all intents and purposes, the girl is dead, or as good as. Does it matter then in Strickland's case whether the doctors withhold life support? If they do not, would this benefit Strickland in any way?

[wring]

The link requires registration, so I"m left w/just the quotes shown here.

But Alicia Weiss, a baby sitter for Haleigh, testified at a hearing in Mr. Strickland's criminal case that she saw Mrs. Strickland kick the girl down the stairs repeatedly and hit her with a baseball bat. She said she also saw Mr. Strickland hit the girl twice with an open hand and once with a plastic stick. from the sound of it, the dead woman is more likely to be responsible for the childs injuries than Mr. Strickland. While I personally would not hit w/a plastic stick, twice w/an open hand, once w/ a plastic stick is, I suspect what many folks would consider to be routine discipline of a child. so, unless the article has more suggestion of evidence of his wrong doing, I'd not be so quick to call him a murderer etc.
it is entirely possible for one parent to be abusive and not the other.

[Zabali_Clawbane]

Here (http://www.msnbc.msn.com/id/10338040/) is a link from MSNBC about this case, and one from the NY Times (http://www.nytimes.com/2005/12/06/national/06coma.html) which has a picture of the girl. How long before the people who rallied behind Terri Shiavo's parents come out of the woodworks I wonder? Or is the stepfather not charismatic enough to sway them?

[Stranger On A Train]

And I pit in advance anyone who does anything for this guy other than increase his level of suffereing. Lawyers, take note.The irony of the oft-stated sentiment, "The first thing we do, we kill all the lawyers" (Henry VI, Part 2, Act IV, Scene II) is that the complaintants were conspiring to overthrow the king. Similarly, those who wish to dispense with the law entirely, or remove its protections, even from the most vile of defendants, embrace the kind of relativist nihilism that would serve only to increase the incidence of this type of thing.

The individual in question--one certainly cannot refer to him as a gentleman, and indeed, it is difficult to even think of him as a human being--deserves a competent and vigorous defense. He also deserves to spend the rest of his miserable existance in a dank cell with only elephant snot and stagnant pond water to sustain him. We can but hope that the prosecution, with the ample if likely circumstantial evidence possessed, can place this...creature...in a state of perpetual incarceration.

As for the incident itself, it is utterly galling, but it is also likely far more common than most suspect. Growing up, I lived in a relatively backward and lower-blue-collar area in one of those states in Top 40 purgatory; foster families, abandoned children, and the like were common. Some were good and caring, which is even more astonishing considering the emotional condition and background that many foster children are in when they are delivered, but many were clearly doing it for the money, and children were often abused by foster parents, other foster siblings, et cetera, and the system did little (and probably couldn't do much better) to protect the children under their aegis.

Not that natural families are necessarily better, or that Family Services/Child Protective Welfare/whatever respond any better. I had a classmate--not a close friend but a girl who I'd known since first grade--who as it turned out was being molested--really, raped--by her father on a regular basis. When this was discovered--sometime between suicide attempt #2 and #3--he was arrested, tried, convicted, given probation or a suspended sentance...and then, when she left the hospital, she was placed back in the some with this by all accounts unrepentant waste of oxygen, who no doubt continued to have his way with her.

It happens; sometimes, the best you can do is not let it happen to anyone you know.

Stranger

[Larry Mudd]

so, unless the article has more suggestion of evidence of his wrong doing, I'd not be so quick to call him a murderer etc.
it is entirely possible for one parent to be abusive and not the other.I think that the argument is that he was complicit in the baseball-bat beating -- he was present during it and did nothing to try to stop it, and in fact was striking her during it.

I'm sure that the lawyerly types will be able to elaborate, but as I understand it that makes him liable to be charged with her murder, even if he didn't strike the fatal blow. He is alleged to have been an active participant in the assault.

[pravnik]

Well, it looks like I'm getting quite a legal education here! This is good stuff.

So for all intents and purposes, the girl is dead, or as good as. Does it matter then in Strickland's case whether the doctors withhold life support? If they do not, would this benefit Strickland in any way?To begin with, I don't think he's going to have standing to contest the state's decision to remove life support. Best I can tell is that he's a stepfather with no parental rights, and suffice to say he's not in any position to try to gain and assert them.

In a legal brief filed before Tuesday’s hearing, Strickland, 31, asks to be declared Haleigh’s de facto parent. His lawyer, John Egan, insists his client is not motivated by the chance he could be charged with murder if the girl dies.
Mind you, I don't fault his attorney for making the argument, but sheesh, lotsa luck with that one. If Terry Schiavo's parents couldn't intervene, what does this guy's think his chances are? I'd like to see the righteous indignation of the state's attorney as he raves over the magnificent set of balls, the balls the petitioner must have to argue this one.

Now, as to his chances of a murder conviction that sticks after she is removed from life support (assuming arguendo that he did in fact cause her injuries), that's the kind of thing that lawyers write 10,000 word "briefs" over, but my purely gut instinct is no way is he walking away from her death without a murder conviction.

[wring]

I think that the argument is that he was complicit in the baseball-bat beating -- he was present during it and did nothing to try to stop it, and in fact was striking her during it.

I'm sure that the lawyerly types will be able to elaborate, but as I understand it that makes him liable to be charged with her murder, even if he didn't strike the fatal blow. He is alleged to have been an active participant in the assault.
I understand if he stood by and watched it happen. Point I was making was that there was nothing in the MSNBC article that indicated he was guilty of anything other than being married to a monster and using slightly more harsh disciplin than the average person (I'm not sure the average person would hit w/a plastic stick. I'm certain that it's not at all uncommon to slap w/open hand). there was nothing in the article that suggested that he was present when the woman beat the child w/a bat.
The sitter may indeed have said that to the cops. in which case, sure, fine, I agree. HOwever the quote from the article didn't indicate that. and unless there was a witness to him standing by and watching, I'm not sure how they'd establish it.
I fear that since the woman who had been witnessed as to beating the child is dead, there may be some level of "somebody's gotta pay" and "Surely he must have known", neither of which, IMHO justifies a prosecution.

[irishgirl]

The courts will decide what is in the best interests of the child. That will most likely mean withdrawal of life support- that is not euthanasia or murder or anything else- it is allowing nature to take it's course.

Then I hope that the man in question receives a fair trial and is convicted or aquitted based on the evidence available.

After that I trust that there is an afterlife and a just God to sort it all out properly.

[Manda JO]

Where were the school officials? Were they blind? We could ask "Where was the state?" But the department of social services are the ones that urged the mother give her daughter up for adoption to her sister.


As far as the school thing goes: it is absolutely amazing how convincingly a child can "fake" normal--or reasonably weird--when they are convinced that not letting anyone know about home is a life-or-death matter.

[Quartz]

What a horrible case. I hope that something positive can come out of it - at the very least it should result in an improvement in the child protection services.

Other than that, what Irishgirl said.

[Evil Captor]

Doctors aren't terminating her life; they're recognizing that she's already dead, and that the withdrawal of life support simply will permit people to recognize her death.

I'll stop there, lest I (again) hijack a perfectly good pitting to wax eloquent about a finer point of law that's interesting only to me.

That's the way I see it. I don't think most people understand that modern medical technology is increasingly making it possible to keep people's bodies operating long after the lights have gone out for good in the brain.

[Evil Captor]

The courts will decide what is in the best interests of the child. That will most likely mean withdrawal of life support- that is not euthanasia or murder or anything else- it is allowing nature to take it's course.

Then I hope that the man in question receives a fair trial and is convicted or aquitted based on the evidence available.

After that I trust that there is an afterlife and a just God to sort it all out properly.

As an atheist, I don't believe there are gonna be any Great Sky Fairies to sort it all out after death. I think we have to do a better job on this sort of stuff. Part of this involves getting rid of the mystical mindset regarding parents. As this girl's family illustrates, just because you have a family, it doesn't mean they should be raising you. Some people are not fit to care for others. Maybe we'll be able to sort them out before things get to this stage, someday.

[clairobscur]

What a horrible case. I hope that something positive can come out of it - at the very least it should result in an improvement in the child protection services.
.



Child protection services are always walking a very thin line. If they take the kids away with unsufficient evidences, they're damned. If they don't and something goes wrong, there will always be someone pointing at hints that should have alerted them, and they're damned too.

When was the last time you heard child protection services actions being praised in the medias? Each time they're mentionned, they're receiving flak for what did, didn't do, should have done, shouldn't have done. That's an extremely important and difficult job (imagine the shit they've to deal with), but contrarily to other similar ones (say, teacher, police officers, etc...), a completely unrewading one. They're saving and protecting thousands of kids, and they only get to be at best criticized and at worst hated by everybody.

[Aangelica]

I'd like to note, in passing, that the term "plastic stick" covers a fairly extensive amount of ground. It can be applied equally well to a swizzle stick and the solid-plastic baseball bat my dad's Little League team uses when the weather is particularly heinous. (Yeah, the plastic bat isn't as good as the metal and wood ones, but it rains 300 days a year in my home town and the wood ones get soggy while the metal ones have a regretable tendancy to slip out of one's grip if everything is wet enough - especially if the bat-swinger is a soaking wet and fairly chilled nine-year old).

Also, it's at least arguably within the scope of a depraved indifference sort of murder conviction to hang around with your thumb up your butt while someone else in your household kicks an eleven-year old down the stairs and/or beats her with a baseball bat. This is assuming he wasn't personally engaging in greivous bodily harm of the child, which seems unlikely to me.







psssssst....... Campion........ I was interested.

[tdn]

To begin with, I don't think he's going to have standing to contest the state's decision to remove life support. Best I can tell is that he's a stepfather with no parental rights, and suffice to say he's not in any position to try to gain and assert them.
I'm sure you're correct on that, but it doesn't really answer my question. And maybe you don't have the answer. I'm OK with it if you don't.

But I'll re-ask it: Let's suppose, but some long stretch of credibility, that Stickland manages to keep Haleigh on life support indefinitely, or at least through the trial. No, it won't happen, but let's pretend just for the moment. Would it have some sort of impact on his conviction and/or sentencing? Is there any way he would get a lighter sentence? Conversely, is there any way he could be convicted of murder, even though the girl is still metabolizing?

[pravnik]

I'm sure you're correct on that, but it doesn't really answer my question. And maybe you don't have the answer. I'm OK with it if you don't.

But I'll re-ask it: Let's suppose, but some long stretch of credibility, that Stickland manages to keep Haleigh on life support indefinitely, or at least through the trial. No, it won't happen, but let's pretend just for the moment. Would it have some sort of impact on his conviction and/or sentencing? Is there any way he would get a lighter sentence? Conversely, is there any way he could be convicted of murder, even though the girl is still metabolizing?Well, it appears that in Massachusetts, injuries resulting in brain death do consititute murder, from a case called Commonwealth v. Golston, 373 Mass. 249, 355 N.E. 2nd 744, 1977, cert. denied, 434 U.S. 1039, 98 S.Ct. 778, 54 L.Ed.2d 788 (1978). It defines brain death as the "total and irreversible cessation of spontaneous brain functions, in which further attempts of resuscitation or continued supportive maintenance would not be successful in restoring such function." id. So it would appear that the circumstances are sufficient to support a murder conviction even if she were kept on life support indefintely.

However, as a practical matter I can imagine that it may make it somewhat harder to get that conviction. If he is being tried while she is still on life support, there may be a fact question in front of the jury as to whether she meets the legal criteria for brain death, and everybody has seen how divisive an issue that can be. Even a very carefully selected jury may balk at convicting a man for murder when the victim's heart is still beating somewhere. The prosecution is going to want to nail this guy hard, and they'll only have one shot at it. It may make sense for them to wait until the person has gone through somatic death as well, and that her body might not expire until after he does. They would probably try him for murder no matter what, but would prefer to wait until after the court orders that she be removed from life support.

[tdn]

Thanks for that.

It seems like quite a gambit for the DA.

[BMax]

with all the stray bullets flying around this country, you would think that just one could find its way into this guys eye socket...
I wasa just thinking that sometimes I can understand a vigilante's mindset.

[Lemur866]

OK, suppose the DA tries the case before the victim's life support is turned off, he charges the perp with murder and a lesser charge of aggravated assault and battery, or attempted murder, or some such.

The jury doesn't buy that the victim is dead, and acquits on murder, but finds the defendant guilty of aggravated assault. The perp goes to jail. However, the next day the victim finally dies. Let's say that the death is within whatever the limit is in this particular state. Can the DA file new murder charges, or is the perp protected by double jeopardy? After all, we have new facts...the victim wasn't dead before, now they're dead.

It seems as a practical matter the DA should wait to see if the victim dies/has the plug pulled, right?

[Steve MB]

:eek: What?

I mean...what????

Is he actually suggesting as a defense the she beat her self to death????
It's at moments like this when one wishes that judges were empowered to order the baliff to whack his peepee.

[whole bean]

You're not going to be able to prove legal causation.

Independent intervening cause? Or a foreseeable consequence of George's actions (i.e., it's foreseeable that this would happen to John, so George must bear the consequences).

Doctors aren't terminating her life; they're recognizing that she's already dead, and that the withdrawal of life support simply will permit people to recognize her death.

I'll stop there, lest I (again) hijack a perfectly good pitting to wax eloquent about a finer point of law that's interesting only to me.

me too, I just showed up too late and you'd said what I was going to say, though better.

[tdn]

OK, suppose the DA tries the case before the victim's life support is turned off, he charges the perp with murder and a lesser charge of aggravated assault and battery, or attempted murder, or some such.
Can someone be charged on two such different levels of assault against one victim? Murder and battery? I've never heard of such a thing happening.

[whole bean]

OK, suppose the DA tries the case before the victim's life support is turned off, he charges the perp with murder and a lesser charge of aggravated assault and battery, or attempted murder, or some such.

The jury doesn't buy that the victim is dead, and acquits on murder, but finds the defendant guilty of aggravated assault. The perp goes to jail. However, the next day the victim finally dies. Let's say that the death is within whatever the limit is in this particular state. Can the DA file new murder charges, or is the perp protected by double jeopardy? After all, we have new facts...the victim wasn't dead before, now they're dead.

It seems as a practical matter the DA should wait to see if the victim dies/has the plug pulled, right?

First, my guess is that there is no statute of limitation on murder in Massachusetts. Second, even if the conviction has already been handed down on the lesser offense of battery or attempted murder, I still think they would be able to try the guy for murder because it is a new (and greater) crime, with new elements. The Fifth Amendment says: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Murder and battery are different offenses. Now if he was convicted of attempted murder and then tried for murder, I think any conviction on his attempted murder would have to merge into his conviction (assuming they get one) on murder. I'd be interested to see what some of the crim law junkies have to say about this though, 'cause this is just my guess.

On a related note, here's an interesting article about a case in Tennessee involving this very issue: http://tennessean.com/local/archives/04/11/62085627.shtml?Element_ID=62085627

[whole bean]

Can someone be charged on two such different levels of assault against one victim? Murder and battery? I've never heard of such a thing happening.

if it's the same event, I believe the lesser offense merges into the greater

[Lemur866]

It's common for prosecutors to charge people with various levels of a crime. For instance, they can charge a guy with both assault and aggravated assault. The jury could find that the perp assaulted the victim, but the aggravating factor wasn't proved, and convict on assault and acquit on aggravated assault.

Prosecutors sometimes don't like to give the jury this option on the theory that the jury is more likely to convict on the harsher sentence if they think the perp will walk otherwise.

I served on a jury where the defendant was charged with both robbery 2 and robbery 3 and we had the option to convict him of the higher crime if we found that the value of what he stole was over a certain amount. He stole a case of pulltabs...but what was the value of the pulltabs? The payout face value, or the cost the bar paid for the tabs?

If the DA just charged with robbery 2, an element of the crime would be that the value of what he stole was over $1000. And a defense would be that the value of the cards was only $100, what the bar paid. If we on the jury found that the value of the cards was only $100, we'd find the defendant innocent and he'd walk. If there's a lesser included charge, we can find him guilty of stealing $100, and he'd be convicted of that. However, if the DA doesn't charge at the same time, he can't go back and charge the perp with robbery 3 after the jury acquits him of robbery 2.

[whole bean]

It's common for prosecutors to charge people with various levels of a crime. For instance, they can charge a guy with both assault and aggravated assault. The jury could find that the perp assaulted the victim, but the aggravating factor wasn't proved, and convict on assault and acquit on aggravated assault.

Prosecutors sometimes don't like to give the jury this option on the theory that the jury is more likely to convict on the harsher sentence if they think the perp will walk otherwise.

I served on a jury where the defendant was charged with both robbery 2 and robbery 3 and we had the option to convict him of the higher crime if we found that the value of what he stole was over a certain amount. He stole a case of pulltabs...but what was the value of the pulltabs? The payout face value, or the cost the bar paid for the tabs?

If the DA just charged with robbery 2, an element of the crime would be that the value of what he stole was over $1000. And a defense would be that the value of the cards was only $100, what the bar paid. If we on the jury found that the value of the cards was only $100, we'd find the defendant innocent and he'd walk. If there's a lesser included charge, we can find him guilty of stealing $100, and he'd be convicted of that. However, if the DA doesn't charge at the same time, he can't go back and charge the perp with robbery 3 after the jury acquits him of robbery 2.

That's not really the issue here though. If the jury acquited the subject of the OP of battery, I doubt a murder charge would be consitutional after the girl dies (they couldn't prove elements 1, 2 and 3 the first time, they can't have a chance to try and prove 1, 2 and 3 now just because there will also be a 4). The question here though is if they convict him for the lesser offence (1, 2 and 3) can they go back and try him for the greater offence (4).

[Marley23]

Here's an update. Court: State can let beaten girl die (http://www.cnn.com/2006/LAW/01/17/life.support.ap/index.html)

But in its ruling, the court said he had offered no evidence "that his participation in (Haleigh's) life was of a loving or nurturing nature."