Two counts of murder..but one victim.

A teenager was found guilty of two counts of first degree murder (and one count of concealment), after she and a male friend killed and then dismembered another teenage girl.

http://qconline.com/archives/qco/sections.cgi?prcss=display&id=277207

The defense wanted to give the jury an option to find her guilty of a lesser offense, but the judge denied that.

Question #1: Could somebody walk me through the differences between “lesser offense” and “murder under two premises”?

Question #2: The prosecution never presented the death penalty as an option…can someone explain what kinds of things usually lead a prosecuter to seek a death penalty option? (I’m not sure if that question falls into IMHO territory)

IANAL, etc.

Question 1: I have a guess but I’ll refrain.

Question 2: Some (most? all?) death penalty statutes limit the death penalty to specific circumstances (e.g. killing a police officer). If the crime in question doesn’t involve one of those circumstances then the death penalty can’t be sought. In those instances when the statute would apply, it’s up to the discretion of the prosecutor. I would expect they would take into consideration such things as the number of victims, the heinousness of the crime, public opinion and so forth.

I can answer #1 from a UK perspective - #2 will require someone with a knowledge of US law.

The “lesser offence” (murder in the second degree in the US, manslaughter in the UK) would be charged if the actions of the killer, on their own, count as murder, but the killer was less responsible for her actions than she would be in normal circumstances. In this particular case, the defence is “provocation” - a guilty verdict on the “murder two” charge, if that had been put to the jury, and an acquittal on the “murder one” charge, would indicate that the accused did kill the victim, but the conduct of the victim had been sufficiently provocative to make the accused temporarily lose control of herself, and therefore be less culpable than if she’d done it in “cold blood”. The judge apparently decided that there was no evidence to indicate that she was provoked, and didn’t let this question go to the jury.

The two different “premises” illustrate two different types of unlawful killing that can be described as “murder”. It’s murder if you kill someone intending to kill them - it’s also murder if you kill someone, but you only intend to cause them serious harm, and there’s a good chance that your actions will kill them. In the UK, the concept of “recklessness” comes in here, but the judge’s use of the word “probability” suggests to me that it’s somewhat different in the US. The basic concept is the same, though.

The prosecution is free to charge multiple theories of the crime. In other words, they may say, “The evidence shows that Ms. Kolb intentionally killed Ms. Reynolds. But even if you don’t believe that, the evidence shows that Ms. Kolb’s actions had a ‘strong probability’ of a result of death.” If the jury believes the first premise, that’s first degree murder. If the jury believes the second premise, that’s ALSO first degree murder.

Contrast this with a case in which the prosecutors say, “The evidence shows that Ms. Smith intentionally killed Ms. Jones. But even if you don’t believe that, the evidence show that Ms. Smith acted criminally recklessly, and Ms. Jones’ death was a direct and foreseeable result.” In that case, you’d have a lesser-included coount of manslaughter as an option as well as the first scenario’s first degree murder.

Nor is it only the prosecutors. The defense has the right to say to the jury, “Ms. Smith is completely innocent. But even if you believe the prosecution’s witness, the evidence shows only criminal recklessness, not murder.” In order for the jury to get a lesser-included instruction, however, some evidence MUST show the possibility.

For example, let’s imagine a convenience store robbery in which the cashier is killed. The prosecution argues that the man seen in blurry form on the store video and caught two blocks away with the murder weapon is the killer. The defense says no, that the man on trial is not the man on the video, and he had the gun in his hand because the real robber threw it away as he was fleeing, and the unlucky defendant picked it up and was looking at it when the police surrounded him.

The jury can believe either theory. But neither the defense or the prosecution can ask for a manslaughter charge – there is simply no evidence in front of the jury that would let them conclude that the death resulted from a reckless act, not during the course of a robbery.

Now let’s imagine a case in which a cop becomes convinced his wife is having an affair. Shortly thereafter, the wife and her paramour are found shot to death in a sleazy motel. The prosecution’s theory is that the off-duty cop followed them there, burst into the room, and killed them. The defense might deny that the husband was there at all, but point out that if the prosecution’s theory is correct, maybe the cop had no intention whatsoever of drawing his gun, but upon seeing his wife in the arms of another, became so enraged that he killed them both.

That would entitle the jury to hear about manslaughter as an option, because the evidence permits that inference just as well as it permits the inference of a planned murder.

Unusually heinous crime, lots of press attention, a re-election year for a prosectuor that wants to be “tough on crime,” … these are some of the reasons that a decision may be made to seek the death penalty if the crime qualifies. Not every murder qualifies under the law. In Virginia, the death must fit certain fact patterns, like being part of a multiple murder, being a child, lying in wait, use of poison, being a law enforcement officer in the line of duty, and the like.

If you “only” intend to cause them serious harm (but end up killing them), that seems “lesser” somehow than intending to murder them…or is that not a significant distinction in terms of what constitutes 1st degree murder?

Thanks for the examples. They helped clarify the different offenses.

The “strong probability” type of murder still involves intent: if you intentionally perform an act that was likely to kill someone, and in fact did kill someone, the mere fact that it might not have and you really didn’t care whether it did or not is not a defense. The primary division between first- and second-degree murder is premeditation, a factor which the jury apparently found in both premises.

The important distinction is whether or not your actions are likely to kill them.

If you hit someone on the leg with a baseball bat, and they have a heart attack and die, that’s manslaughter. You only intended to break their leg, and it’s reasonable to assume that hitting someone on the leg isn’t going to kill them.

If you hit someone on the head with a baseball bat, only intending to knock them out, and they have a heart attack and die, that’s murder. You may only have intended to injure them, but a reasonable person should know that severe blows to the head often do result fatally. The US position may be different, but, in the UK, the fact that the victim died from a heart attack rather than (say) cerebral haemorrage isn’t relevant, as long as the injury the assailant caused can be directly linked to the cause of death.