Friday, April 11, 2014


Right on the heels of my blog on Pundits, Pistorius, and Premeditation, I got another inquiry in a similar vein from another reporter. This question dealt with attempted second degree murder. Someone had been arrested in South Florida on a charge of attempted first degree murder, but the prosecutor had filed the charge as attempted second degree murder. The reporter wanted to know just how the heck you could attempt a crime which by definition was unintentional. I had to laugh, as I recalled a judge making a similar remark about an attempted murder case I helped defend back in the 70’s.

The facts of the case were this. Victim #1 beat the defendant up in an argument over a pool shot. Apparently he had gotten some help from the other patrons in the bar/pool hall, because the defendant left the bar with the warning “Y’all just wait. I’m going home and get my boxcutter and come back all fix all y’all MFers.” The defendant was as good as his word. Victim #1 had gone out to his car and passed out in the back seat before the defendant got back. The defendant woke him up by sticking the boxcutter in Victim #1's groin and opening a gash from groin to kneecap. The defendant was in the process of filleting Victim #1 when some other bar patrons intervened and became Victims #2, #3, and possibly Victim #4. The defendant thoroughly sliced and diced them, too. I don’t remember how many counts of attempted first degree murder they charged him with, but it was at least three. Now, as thorough a carving job as he did on the victims, it seemed apparent to me that he intended to kill someone. It wasn’t so apparent to the jury, because they came back with verdicts ranging from attempted second degree murder to attempted third degree murder to attempted manslaughter.

The judge observed that the verdicts didn’t make sense. The attempted third degree murder verdict was especially puzzling, and the attempted manslaughter verdict was downright paradoxical. but we’ll leave off discussion of that for a little later in this blog post. Let’s first look at the logical incoherence of attempted second degree murder.

According to the standard definition of attempt to commit a crime, attempted second degree murder should logically be considered an attempted murder which is intentional but not premeditated. BUT, the definition of premeditated murder is killing after consciously deciding to do so. Therefore any intentional killing is premeditated. Therefore, attempted second degree murder doesn't make any sense because if you intend to kill, you’ve got to be guilty of attempted first degree murder.  This is why some older cases say there is no such thing as attempted second degree murder. Some other courts allowed as how it didn’t make much sense, but as the law stood in Florida at the time, you had to instruct the jury on all degrees of a crime divided into degrees. (That’s no longer the law, but that’s also another story).

So we had some courts saying attempted second degree murder didn’t exist and others saying it did exist even if it didn’t make sense. The Florida Supreme Court cleared up the confusion by saying that attempted second degree murder is a crime. They had to do some mental gymnastics to make it a crime. Here’s what happened:

A defendant got convicted of attempted second degree murder and appealed, making the very logical argument that: "An attempt is committed if you decide to commit a crime, try to, and fail. If you decide to commit murder, you have premeditated a murder. Therefore, there is no such thing as attempted second degree murder." The Supreme Court decided, however, that you can commit attempted second degree murder without intending to kill someone. They explain it like this:

 "The offense of attempted second-degree murder does not require proof of the specific intent to commit the underlying act (i.e., murder). See Gentry v. State, 437 So.2d 1097 (Fla.1983). In Gentry, we held that the crime of attempted second-degree murder does not require proof of the specific intent to kill. Although the crime of attempt generally requires proof of a specific intent to commit the crime plus an overt act in furtherance of that intent, we reasoned: ‘If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime.’ Id. at 1099. To establish attempted second-degree murder of Harrell, the state had to show (1) that Brady intentionally committed an act which would have resulted in the death of Harrell except that someone prevented him from killing Harrell or he failed to do so, and (2) that the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life. See Standard Jury Instructions in Criminal Cases, 697 So.2d 84, 90 (Fla.1997)." Brown v.State, 790 So.2d 389 (Fla. 2000).
That certainly clears everything up, doesn't it? By that line of reasoning, if I get drunk and walk toward a car with a key in my hand trying to crank up and drive off, and if somebody tackles me, then I’m guilty of attempted DUI. Or, if I do something really stupid and almost kill somebody but don’t harm a hair on their head, I’m guilty of attempted culpable negligence manslaughter. If I steal a car I've committed a felony If while driving that car I run over and kill someone, I've committed third degree felony murder. Now,  under the Supreme Court's logic, if I steal a car and almost run over and kill someone but don't hurt anyone, I'm guilty of attempted third degree murder. Given enough time, we could think of all sorts of silly scenarios that, under the Supreme Court's rationale, make people guilty of criminal attempts to commit all sorts of unintended crimes.

Now to bring this back to Pistorius. South Africa seems to me to have a much better definition of premeditation than we do in the United States. South Africa distinguishes between intending to kill and premeditating a murder. Put as simply as possible,[1] if on the spur of the moment I decide to kill, in South Africa I’m guilty of attempted intentional murder but not attempted premeditated murder. In Florida I’m guilty of premeditated murder because premeditation is simply killing “after consciously deciding to do so.” In South Africa premeditation requires some prior planning. If we had the South African definition of premeditation, then attempted second degree murder would make perfect sense. I decide on the spur of the moment to kill and fail, I’m not guilty of attempted first degree murder because there was no prior planning. I’m guilty of attempted second degree murder without having to do the mental gymnastics the Florida Supreme Court did to make attempted second degree murder a crime.

[1] For a more full discussion of the complexities of the South African law of murder, read my post Pundits, Pistorius and Premeditation.