Murder in the California penal code is defined as follows:
187. Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
Obviously, the statute has been amended to account for lawful termination of a fetus with the "Therapeutic Abortion Act", and that is not part of the discussion.
First and second degrees are differentiated as well. Malice can be expressed or implied, with expressed being the deliberate intention to unlawfully take a life, and implied being without provocation or when circumstances show an "abandoned or malignant heart"
First degree is deliberate and premeditated or done in the pursuit of a number of other felonies. All other murder is second degree. Under this definition, what Mehserle did could be considered 2nd degree murder, but it will be difficult to prove the abandoned or malignant heart. The attorneys should be going for the "without provocation" angle, because he shot the guy in the back when he was no apparent threat. That would be easier to prove, because just proving he was mad is not enough to be "malignant". If it was, spousal abusers would not get manslaughter, nor would people who stabbed someone in a bar fight. Clearly, the weapon in a bar fight can kill and to stab someone while you are angry generally means you want them dead. That is still only manslaughter (heat of passion is how it is generally referred to).
Voluntary manslaughter is the "heat of passion" or in a "quarrel" while involuntary is in the commission of an unlawful act, not amounting to a felony, or a lawful act that results in an unlawful death or without caution and circumspection.
So while he could be guilty of 2nd degree murder, and depending on the evidence may be convicted thereof, it is more likely that he is guilty of either voluntary or involuntary manslaughter, especially given the tack that the prosecution is taking.
The fact that the judge instructed the jury to consider lesser included charges is probably the best thing. I am sure the defense did not want this, because if they only had 2nd degree murder to choose, they would either acquit or be a hung jury.
Which brings me back to Michael Jackson. Much is being made of a Bart officer shooting an unarmed black man in the back (as much should be made of this - not because of his race but because of his unarmed and non-threatening status at the time), and in large part it is because a "white" officer is shooting a "black" man. The fact that Bart officers are notoriously under-trained and do not deal with stressful situations well is not being taken into account because of the racial undertones.
However, a much more credible case could be made for prosecuting Michael Jackson's doctor for murder - he was supplying him illegally with drugs that he knew were both illegal and life-threatening in the dosages and manner in which he prescribed them. Any reasonable person with the amount of training of a doctor should know exactly what those drugs do, that they are illegal for the purpose which he was prescribing them, and that the loss of life was an inevitable outcome from continued prescription of said drugs. An argument could be made that, since death is a reasonable outcome from these drugs, that injecting Michael Jackson with them amounts to "circumstances attending the killing show an abandoned or malignant heart".
Obviously, this is a bit of a reach, and the charge of manslaughter in this case is also more appropriate, but a trained physician with a syringe and a lust for money from famous people is a dangerous commodity as is an untrained, armed officer. The fact that the Michael Jackson probably requested the shot is what likely makes the difference to most people, and race ceases to be a factor. I would argue that it should not be a factor in either case, as Mehserle, in all likelihood, was so poorly trained that given a similar situation with a white, Hispanic, or Asian offender, it is highly probable that the same thing would have happened.
The real tragedy is that this gives the Oakland community one more reason to not trust the police, and thus makes Oakland, ultimately, a less safe place - if you don't trust the police, you don't report crimes. Gangs and criminals know this and exploit it.
My next two blogs, hopefully soon, will encompass the following topics:
- Legalizing marijuana - why I believe it is a bad idea (and, no, it is not a moral argument against intoxicants, marijuana is likely innocuous enough in that regard, nor will I use a "gateway" drug argument)
- A dream that I had the morning of June 20th. I only slept for about 2 hours that night (the 19th, Sunday night) and I had a dream so vivid and memorable it was like watching a movie, or watching one of the GMs game come to life - in fact there were elements of sci-fi and "Star Fleet" from our game involved. This may bore you, but probably no more so than anything else I write. Supergoober and the GM both figured prominently in it for a while, and it was like we were all characters in a game.
