Drugist in OKC convicted of murder

[hogdogs]

Eagle eye, When you do a good job masking sarcasm as your true feelings in writing, you might consider this little internet forum code trick... Works perfectly...
[sarcasm]were you REALLY being sarcastic then or are you trying to backpeddle now?[/sarcasm]

Try that next time okay?
Brent

[Evan Thomas]

Originally Posted by hogdogs

[sarcasm]were you REALLY being sarcastic then or are you trying to backpeddle now?[/sarcasm]

Try that next time okay?

Another, relatively charitable, interpretation is that someone has a bit of a reading comprehension problem...

Originally Posted by Mr James

Guilty as charged. Good job. He executed a defenseless (and possibly mortally wounded) man.

I believe the "Good job" refers to the conviction, not to the execution...

[Aguila Blanca]

Originally Posted by Wildalaska

Unfortunately for you view, that issue is well settled since the time of Blackstone IIRC. Read up on "Malice aforethought", a good case is Mullaney v. Wilbur, google it.

Ken, I know it is "well settled," but that doesn't mean I have to agree with it. I may not be a lawyer, but I AM a technical writer with a whole pile of English classes under my belt, and I remember enough high school Latin to know that the "pre" part of "premeditation" means "before," not "during."

Which is why we have jury nullification.

It ain't like Ersland got out of bed that morning and decided "I think I'll kill the first punk who walks in the store today." His actions were not planned out before the incident unfolded ... which to me is the test of what "premeditated" really means. If the two would-be robbers had not entered the store and pulled a gun, Ersland wouldn't have gone looking for someone to shoot.

Was it a bad shoot? Yes, it certainly was and I'm not trying in any way to justify or to excuse it. I just don't think that first degree murder is the appropriate charge. Second degree murder? Absolutely. But ... I wasn't on the jury, so my opinion is worth exactly what you paid for it.

[Aguila Blanca]

Originally Posted by Wildalaska

Unfortunately for you view, that issue is well settled since the time of Blackstone IIRC. Read up on "Malice aforethought", a good case is Mullaney v. Wilbur, google it.

Hmmm ...

From this site, which explains fundamental principles of criminal law: http://www.lexisnexis.com/lawschool/...rim/crim02.htm

In Mullaney v. Wilbur, 421 U.S. 684 (1975), the homicide statute under which the defendant was tried defined "unlawful" killing as "neither justifiable nor excusable." At trial the defendant presented evidence supporting his claim that he killed the victim "in the heat of passion on sudden provocation." The trial judge instructed the jury that if the prosecution proved that the defendant killed the victim unlawfully and intentionally, then the killing was murder, but if the defendant persuaded the jury by a preponderance of the evidence that the killing was "in the heat of passion on sudden provocation," it constituted the lesser offense of manslaughter. The Court found that the instruction violated the Winship doctrine, as it essentially shifted to the defendant the burden of disproving an element of the offense – that the homicide was not "unlawful" as defined in the statute.

Which takes us to Winship. From the same site:

Prosecution’s Burden of Persuasion (the Winship doctrine) – Pursuant to the due process clause, a person charged with a crime is presumed innocent and, to enforce this presumption, the Supreme Court held in In re Winship [397 U.S. 358 (1970)] that the prosecution must persuade the fact-finder beyond a reasonable doubt of "every fact necessary to constitute the crime charged." This rule has come to be known as "the Winship doctrine."

If the prosecution fails to meet its burden of persuasion, the defendant must be acquitted. Procedurally, the acquittal may occur in either of two ways. First, after the prosecution completes its presentation of evidence or immediately before the case is due to be submitted to the jury, upon motion of the defendant, the trial court must direct a verdict of acquittal if the evidence, viewed in the manner most favorable to the prosecution, can support no reasonable verdict other than acquittal. Alternatively, if the judge believes that reasonable minds can differ and, therefore, permits the case to go to the jury, the jury must acquit if it possesses a reasonable doubt regarding one or more elements of the offense charged.

In fact, Mullaney isn't a good case for your argument, because the defendant prevailed at the SCOTUS and the appeal was upheld. The ruling was that the State had a duty, since it was arguing that the act was NOT "in the heat of passion," to prove that beyond a reasonable doubt. In Mullaney the State did not prove that -- they reversed it and asked the defendant to prove that it WAS "in the heat of passion."

[Eghad]

Premeditation is not based on any time limit it is based on the intent and the period that happened after the intent to commit the act and was the person fully conscious of the intent and to have thought about the act.

Ersland had to come back to the shop when he considered shooting the individual again then went and got another pistol from locked storage and shot the guy 5 times again.

sounds like he met the criteria for premeditated and malice aforethought

Sounds like the prosecution met both of your examples to me because the jury found him guilty of first degree muder beyond a reasonable doubt.

[Glenn E. Meyer]

Oh Dear - isn't clear that we don't promote blood lust and posturing. The suggestions by Eagle Eye are quite inappropriate and thus to avoid continuing such - CLOSED.

I suggest that the faq and esp. the sticky for T and T might be good reading before one suggests such.

We also don't joke about killing people.