Facts:
Husband: 6’3" - 240lbs. Airport cop. Middling to bad work history, i.e., few promotions and lots of reprimands for lazy behavior. Known alcoholic. Formal reprimand for verbally threatening a neighbor with physical violence (death threat) over dog pooping in the yard. Neighbors say he is a scary drunk who calls the neighborhood kids nigglets.
Wife: 5’0" - 100bls. Brazillian. A bit crazy. Speaks moderate amount of English. No friends. No family in USA. Lives a very isolated life.
History: They have been married for 10 years. They have two kids. Girl - 9. Boy - 7. Approximately 15 prior domestic violence calls to the house over the 10 years, clustered around the beginning, and more recently in the last two years. Police have never arrested husband, despite evidence of injury to wife. There is the obvious language barrier, and wife does not tell officers about actual physical contact, rather rambles on about what they were fighting about. Almost every report describes husband as being heavily drunk and verbally abusive to his wife in the presence of the officers.
Daughter can and will describe witnessing physical violence between parents. When asked by cops about why her parents fight, she replies, “Because my Dad’s life was really great before he had a wife and kids, now it is really hard and bad.”
Facts: On a school night, husband and wife get in a stupid argument about the kids. Husband begins strangling wife via pressing her body against a wall in the kitchen, and with his forearm against her neck. She begins to lose consciousness. Daughter walks in and sees this, husband then let’s go. Wife is able to scramble away.
Wife grabs daughter and takes her upstairs, grabbing son on the way. Wife puts kids in daughters closet. She walks to bedroom and attempts to get husband’s gun. She cannot reach it. She walks to get chair in computer room. Get’s gun out of closet. Goes to bed and fiddles with the gun (she has never touched one before). As she is toying with it, the gun discharges. Husband is still heard downstairs screaming and pacing in the house. The entire process of hiding the kids and getting the gun takes approximately 90 seconds - 2 minutes.
Wife takes gun and walks towards steps. She begins down the steps as husband is walking down the hallway towards the steps and front door. Front door is the only viable exit due to house lay out. She shoots husband once from about four feet away in the side of the temple/check, exits near neck/chin. This shot puts him down, but does not kill him. He is actually gurgling blood, but she believes he is laughing. She comes behind him where he has fallen, and puts another bullet in the back of his head. This does not kill him right away, but effectively does end his life.
Wife puts gun away and calls 911. Tells dispatch that she has shot her husband. She does not know if he is dead.
Simultaneously, a neighbor calls 911. He tells dispatch that he has heard three shots, and is fairly certain that the drunk police officer next door has just murdered his wife and two kids. He tells dispatch to tell the officers to approach the house carefully, because the officer is likely drunk and unhinged.
Cops detain wife. Through a language line interpreter, wife explains to investigator that her husband is an abusive asshole. That he strangled her. That she killed him to protect herself and her children (there is a prior documented case of husband strangling son). Wife admits that at the moment she walked up the stairs, she knew she was going to get the gun and attempt to kill her husband.
Wife is arrested and indicted for first degree murder and held without bond, due to the nature of the charges, and the fact that she is a Brazilian national.
Other important facts: doctors will testify that wife suffers from PTSD, and is personality disordered, in addition. Wife did reach out to local divorce attorney, and the local abused women’s shelter. Neither was effective at helping her. She obviously called the cops on numerous occasions, and her husband was never arrested. She was able to obtain a preliminary protective order after an incident when he tried to rape her, but it was later dissolved in court when she didn’t show up for the PPO hearing.
Jury Instructions:
First Degree Murder - murder with premeditation and malice aforethought. Premeditation can happen in an instant, and only requires a moment’s reflection.
Second Degree Murder - murder with malice, but without premeditation. Think of a heat of passion type situation… you walk in on a spouse mid-coitus with lover.
Voluntary Manslaughter - killing without malice, but without any justification (i.e., imperfect self-defense, you really weren’t justified).
Not Guilty By Reason of Insanity - she really wasn’t reasonably in fear of imminent death, and therefore did not have the right to use deadly force - the threat was over. But because of her PTSD/Personality Disorder, she was not able to cognitively evaluate the threat and make the right choice.
Not Guilty - the threat of harm to herself and/or her children was real and justified, she had the right to use deadly force.