Fair dinkum. I’m very curious to see if void for vagueness was raised at trial, and if it will be raised on appeal. My guess is that the court took the text conversations as being evidence of presence, but . . .
Where did the court read into the common law an element of physical presence? In Dennis, it read into the common law the element of presence (“It can make no difference in principle, whether the hand of the victim or the hand of another agent is employed, if the act be done in the presence of the person charged and at his instigation”), but did not specify physical presence, and Dennis referred to Bowen (which coached suicide as self-murder) in which the court did not mention any need for presence, and instead cited the state’s murder statute that set out that not being present did not bar a conviction for being an accessory before the fact for counselling murder.
Dennis also may have got the decision in Bowen backwards, saying in the same paragraph where it cited “presence” that there had been a conviction in Bowen, whereas the report of Bowen stated that there had been an acquittal. Of course the report of Bowen could have been flawed, for it was drafted by a reporter who used a gentleman’s notes made at the bar. Either way, Bowen did not require the accused to be present, the statute to which Bowen referred did not require the accused to be present, and Dennis did not specify that the presence must be physical.
The court in Dennis (dealing with a prisoner who convinced a fellow prisoner to kill himself and thereby cheat the hangman) used a broadly accepted meaning of the term “hand” as opposed to the narrowest meaning. Using the most restrictive meaning of “hand” would have meant that a conviction could not have been obtained unless the death was physically caused by a punch or strangulation; even good old tried and true stomping on the head would not have cut if, stomping with a foot is not a hand even if it is a very learned foot heading the 2nd Circuit.
In the same sentence the court in Dennis used the term “presence” without further definition, so on a plain reading one would assume the same level of restriction as was used with “hand”, that is, none, for it chose not to note that it wanted one term to be defined broadly and the other term to be defined narrowly. The narrowest meaning of “presence” would be if both prisoners were entirely in the same room and within close sight and sound of each other, but would not apply if one were behind a wall speaking or passing notes to the other via an oblique communication port or common hallway (or for that matter, present in court behind a screen) despite it still permitting full communication. There is nothing in the judgment to clarify this. Using the generally accepted meanings of these two terms requires context be determined, and that same context be applied to the facts in the Carter matter, which is that presence is not restricted to physically being both situated in the same room and within close sight and sound of each other. The context is that there must be clear and contemporaneous communication between identified parties. That same context from the 1804 murder statute, the 1816 Bowen decision, and the 1870 Dennis decision, when applied to today, would include being present in person, by telephone, by video, and/or by text, for it was the nature and quality of the immediate, intimate communication that directed the self-murder/suicide, not how physically close the parties were during the communication and self-murder/suicide.
In the Carter matter, the same level of court that made the Bowen and Dennis decisions reviewed the question of whether the evidence was sufficient to warrant the return of an indictment for involuntary manslaughter where the defendant’s conduct did not extend beyond words. The court found in the affirmative and noted (at footnote 2) “In a written memorandum of the decision, the [motion] judge stated that, although the defendant and the victim rarely were in the same physical location, “[t]he rapidity of the[ir] electronic exchanges was almost immediate, similar to a conversation.” That court had considered and rejected the defendant’s argument that she based on her having been miles away from the victim at the time of the incident. Although this is not binding on a future appeal, it shows the direction that one might anticipate the court taking.
I expect that if the conviction is appealed to that same level of court again, it would use the same analysis again, in which “presence” is used in the general sense rather than its most limited sense, such that presence exists through communication, be it in person, over the telephone, via texting, or the Voice of God the Almighty bringing His Divine Presence into His Believers’ Hearts and Souls, rather than only when there is close physical presence. If the defendant were to appeal based on a reliance on Dennis’s use of the word “presence”, I expect that same court today either would note that in Dennis it had read in “presence” without clarifying its definition, thereby freeing up today’s court to clarify what does or does not constitute “presence”, or it would simply fall refer back to Bowen and note that “presence” is not an element necessary for conviction.
Was Carter’s boyfriend killed as a result of her actions? On the facts (for lack of the trial transcript, read the facts set out in the appeal of the motion judge’s decision), yes.
Was what she communicated to him inherently dangerous or done with reckless disregard for human life? Sure as shit yes it was – he was in a mentally fragile state and she pretended to help him while pressing him hard to kill himself.
Did she know or should she have known that her conduct was a threat to his life? Yes. She either knew damn well or should have known that pressing him hard to kill himself when he was in a mentally fragile state was a threat to his life.
Is the Dennis “presence” issue settled law? No, it isn’t. I expect that if the Carter matter is appealed, it will be found that the court in Dennis specified “presence” but did not specify that presence must be physical, so Carter being present via text but not physically present would not give her a pass via void for vagueness.
I may very well be wrong in my guess. If Carter gets off based on either the presence element requiring physical presence, or Carter asserting she was relying on the vaguely worded presence element requiring physical presence, then I expect that the decision letting her off would also clearly set out the court’s definition of presence so as to block future similar matters from slipping between the cracks.
Don’t shout “fire” in a crowded movie theatre. Don’t exhort a person to keep drinking another beer and then drive. Don’t direct a minor to play in traffic. Don’t persistently press a suicidal mentally fragile lover to kill herself. Don’t do these things face to face, and don’t do them from a distance. Just trust me on this. No good will come of behaving like that while thinking that you have a right to say what you want, whenever you want, to whomever you want, with a guarantee of impunity. It’s just not that simple. There are limits, as Carter has found out, and those limits are not necessarily clean lines drawn in the sand. Life is messy. Law is messy.
Take responsibility for your actions, and recognize that in some circumstances (e.g. the Carter matter) the law may hold you responsible for the ramifications of your actions even when your action was only to direct another person to do something that caused the breach or harm.
Read up on criminal negligence (and civil negligence while you’re at it), and try not to bog yourself down with twisted interpretations along the way made by organized pseudolegal commercial argument litigants (Detaxers; Freemen or Freemen-on-the-Land; Sovereign Men or Sovereign Citizens; Church of the Ecumenical Redemption International (CERI); Moorish Law, etc.). When deciding whether or not to say or do something, ask yourself what a reasonable person would do. Although it is no guarantee, if you act the way a reasonable person would act, then most of the time that will see you through. Quite simply, ask yourself “Would a reasonable person exhort a buddy to drink and drive, knowing that drinking and driving greatly increases the probability of collisions involving property damage, injury and/or death?” If you find yourself weighing your desire to say or do something against the criminal and civil consequences arising from the reasonably foreseeable harm caused directly or indirectly from what you say or do, then step back, do some research, and get some solid independent legal advice from Bricker or some other good lawyer with experience relevant to your particular issue.
In the matter at hand, see how he finds a solid legal point – void for vagueness – and hangs the relevant facts on it to make a convincing argument, rather than your “I made it clear I was not interested in arguing what the law is, as opposed to general civil-libertarian principles,” for when you limit your argument to just asserting your personal beliefs, rather than dealing with reality, you’re limiting your effectiveness when discussing a very real case using very real law this is still developing but is based on a very old and ongoing balancing of conflicting ethical principles, real-world practicability, and down-in-the-dirt-facts. Simply maintaining that a person should be free to say whatever he wants without exception, including when it causes death by proxy, doesn’t really leave much to debate.
