SLIPPERY SLOPES AND NEWBORN BABIES

When I was a kid, the big reproductive rights controversy was birth control. (As a teenage boy with rampaging hormones, I was heartily in favor of birth control. As a senior citizen I still am). One of the arguments against allowing birth control was that it would lead to abortion on demand. Birth control advocates pooh-poohed the very idea that it would lead to abortion on demand. They derided the argument as an example of the “slippery slope” fallacy. The slippery slope argument is supposedly fallacious because going halfway down the hill doesn’t mean you will continue to the bottom. You can stop any time you want to. When I first learned about the slippery slope fallacy, I didn’t buy it, and I never have. The argument that appears to me to be fallacious in this point-counterpoint is the argument that “I can stop any time that I want to.” I have a name for this standard refutation to the slippery slope argument. I call it the drunkard’s fallacy. I gave it this name because I’ve heard numerous alcoholics voice this argument, and they seldom make good on it.

Well, we have slipped right on down the slope from birth control, and it looked like we hit the bottom of the slope with “intact dilation and extraction,” a procedure more commonly known as partial birth abortion. I’m no medical expert, but as I understand partial birth abortion, a full term baby is delivered feet first, and while the head is still inside the mother, the skull is punctured and the baby’s brain is sucked out.

I’m not kidding. Here’s how it is described in the Princeton University web article: “Intact Dilation and Extraction,” http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Intact_dilation_and_extraction.html.

Under the Intact D&X method, the largest part of the fetus (the head) is reduced in diameter to allow vaginal passage. According to the American Medical Association, this procedure has four main elements. First, the cervix is dilated. Second, the fetus is positioned for a footling breech. Third, the fetus is partially pulled out, starting with the feet, as far as the neck. Fourth, the brain and material inside the skull is evacuated, so that a dead but otherwise intact fetus can be delivered via the vagina.

I have never heard what I believe is a good medical reason for delivering a baby feet first and killing it while its head is still in the mother’s womb. (The explanation on the Princeton site sounds to me like a plausible excuse rather than a valid explanation). I do, however, know of a legal reason for doing this. A baby is considered stillborn if, after birth, it never takes a breath. It is alive if it takes even one breath. When dead newborns are found in trashcans, the medical examiner checks the lungs to see if they have taken a breath. If they have, then you have a murder case.

Let’s apply this to the partial birth abortion. If the doctor delivers the baby head first, it may take a breath before its brain gets sucked out. That would be bad. That would be murder. The solution is to suck the baby’s brain out while the head is still in the womb and it’s impossible for the baby to take a breath.  The horrific nature of such a procedure gave rise to the Partial-Birth Abortion Ban Act of 2003, http://news.findlaw.com/wsj/docs/abortion/2003s3.html, which prescribes the draconian punishment of up to two years in prison for killing a baby this way. Compare that to the maximum penalty if you happen to be in a death penalty state and kill a baby after it takes a breath.

Whew! We got it stopped before we hit rock bottom. Or did we? In an online article from the Journal of Medical Ethics, Alberto Giubilini and Francesca Minerva argue for “post-birth abortions” or “after-birth abortions.” They summarize their arguments in favor of post-birth abortions in the following words:

Abortion is largely accepted even for reasons that do not have anything to do with the fetus' health. By showing that (1) both fetuses and newborns do not have the same moral status as actual persons, (2) the fact that both are potential persons is morally irrelevant and (3) adoption is not always in the best interest of actual people, the authors argue that what we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.  “After-birth abortion: why should the baby live?” J Med Ethics, doi:10.1136/medethics-2011-100411, http://jme.bmj.com/content/early/2012/03/01/medethics-2011-100411.full#aff-1.

Why not just put the baby up for adoption? Giubilini and Minerva have a ready answer:

Why should we kill a healthy newborn when giving it up for adoption would not breach anyone's right but possibly increase the happiness of people involved (adopters and adoptee)?

Our reply is the following. We have previously discussed the argument from potentiality, showing that it is not strong enough to outweigh the consideration of the interests of actual people. Indeed, however weak the interests of actual people can be, they will always trump the alleged interest of potential people [aka newborn babies] to become actual ones, because this latter interest amounts to zero. On this perspective, the interests of the actual people involved matter, and among these interests, we also need to consider the interests of the mother who might suffer psychological distress from giving her child up for adoption. Birthmothers are often reported to experience serious psychological problems due to the inability to elaborate their loss and to cope with their grief. It is true that grief and sense of loss may accompany both abortion and after-birth abortion as well as adoption, but we cannot assume that for the birthmother the latter is the least traumatic. Ibid.

In effect, their argument is, “Let’s kill the baby because it might make the mother feel bad. It makes no difference that infertile couples will be deprived of the opportunity to love and cherish a child or that the child could grow up and lead a happy, productive life. Birthmom’s fragile feelings might be hurt if we allowed that to happen.” It gives me great pleasure to report that the firestorm of criticism ignited by this article has fractured the fragile feelings of both the authors of the article and the editor of the Journal of Medical Ethics. See, e.g. Christopher Smith, “Premeditated Murder of Newborns,” The Washington Times, http://www.washingtontimes.com/news/2012/mar/12/premeditated-murder-of-newborns/?page=all, and Wesley J. Smith, “ ‘Bioethicist’ Upset by Public Criticism of ‘After-Birth Abortion’ Idea,” http://www.lifenews.com/2013/05/03/bioethicist-upset-by-public-criticism-of-after-birth-abortion-idea/.

This is just a tempest in a teacup, isn’t it? After all, Giubilini and Minerva are just a lunatic fringe, aren’t they? Afraid not. Look at this article from the web: William Saletan, “After-Birth Abortion: The Pro-Choice Case for Infanticide,” Slate, http://www.slate.com/articles/health_and_science/human_nature/2012/03/after_birth_abortion_the_pro_choice_case_for_infanticide_.html, and Mark A. Thiessen, “Planned Parenthood’s Defense of Infanticide,” The Washington Post, http://www.washingtonpost.com/opinions/marc-thiessen-defending-infanticide/2013/04/08/36e44294-a061-11e2-9c03-6952ff305f35_story.html. It seems that the Florida Legislature is considering a bill to require abortionists to try to save the lives of babies who accidentally get born alive when they botch the abortion (See CS/CS/CS/HB 1129 - Infants Born Alive, http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=50434), and Planned Parenthood is opposing the measure.

The ball started rolling down the hill with the advent of birth control (not a bad thing in itself if we could have stopped the ball at that point). Then it started picking up speed when Roe v. Wade legalized first trimester abortions. We started putting on the brakes with partial birth abortions, and we’re trying to keep pressure on the brakes by requiring abortionists to try to save the lives of infants who are accidentally born alive as a result of a botch abortion. But there are those out there who want to apply pressure to the gas pedal and move on down the hill toward infanticide.  It would be nice if the drunkard could be right just this one time and we can stop any time we want to.

THE NEW ALTERNATIVE LIFESTYLE

NBC’s Skyler Wilder says that Olympic Gold Medalist David Wise leads an alternative lifestyle because at age 23 he has a wife and child and attends church regularly. [See his report here: http://www.nbcolympics.com/wrc/news/david-wises-alternative-lifestyle-leads-olympic-gold]. Wilder finds it amazing that Wise, whom he characterizes as a child, acts like an adult. I had no idea that acting like an adult was now an alternative lifestyle. I think Wilder’s article gives near-conclusive evidence that the mainstream media in general and NBC in particular is out of touch with reality. What David Wise has done with his private life is exactly what the vast majority of Americans have done with their private lives for the past 200 years. It is tragic that we as Americans are now letting the media be the arbiter of what is normal and what isn’t. Under the sway of the media we have become a nation where responsible married men are oddballs and the surest path to becoming an iconic hero is to be an entertainer who dies of a drug overdose. Once upon a time in America we made heroes of soldiers [e.g. Alvin York], astronauts [e.g. John Glenn], and educators [e.g. Albert Einstein]. Now our heroes are singers, actors, and sports figures—and the more they misbehave, the higher their star rises. Meanwhile, back in the real world we still have people who hold down steady jobs, try to be good parents to their children, and work hard at staying married to the same person. Such people, who are now considered pursuers of an alternative lifestyle, built this country. And if the supply of such Americans ever runs dry, we will be in big trouble.  

SHERLOCK JUMPS THE SHARK

Back when Happy Days was drawing to a close, the writers started running out of good ideas for stories. Consequently, they wrote an episode where Fonzie got on a pair of water skis and went over a ski jump ramp. The catch was that to make things interesting, a shark had been placed under the top of the ramp. If Fonzie’s jump failed, he would be eaten by the shark. Naturally, the jump was successful, but his feat became a catchword for when series writers run out of ideas and start writing incredibly bad and/or preposterous stories. When this occurs, the series has “jumped the shark.”

I contend that Sherlock, in the episode “His Last Vow,” jumped the shark. If you haven’t seen the episode and want to be surprised by what happens, stop reading now.

Mary Morstan a CIA assassin? Give me a break. If Sherlock was half as perceptive as he’s supposed to be, he would have come up with more than an assessment of “liar” when he first met Mary in “The Empty Hearse.” And I don’t see anyone with Sherlock’s personality being so forgiving after Mary shot and almost killed him. I’m not saying that Sherlock was above killing Magnusson. That was really the only solution for such a man. I am saying that Sherlock should have been sharp enough to figure out that murder was the only solution and find a safer way to kill the man than to shoot him in the head in front of a fully armed SWAT team.

I’ve noted earlier that the writers had written themselves into a corner with “The Reichenbach Fall,” by having Sherlock commit suicide under such circumstances as to make it impossible to come up with a rational explanation for how he faked it. Now, at the end of the third series they raise Moriarty from the dead. If we get to a Season Four, there is no way that they can come up with even a bonehead explanation for how Moriarty survived placing the muzzle of a pistol in his mouth, directing the muzzle toward his brain case, and pulling the trigger. And don’t try to say that the gun was firing blanks. You might want to ask John Eric Hexum what happens when you place the muzzle of a pistol loaded with blanks to your head and pull the trigger, but of course you can’t because he didn’t survive doing that. The violently expanding gas escaping the muzzle will kill quite handily even without a bullet. Arthur Conan Doyle had the good sense to leave Moriarty dead after he went over the Reichenbach Falls. The writers of Sherlock should have emulated him on this point.

Do these complaints mean I do not plan to watch Season Four if and when it comes out? Absolutely not. As flawed as Season Three was, I enjoyed it thoroughly. I just hope that they come up with more logical scripts for Season Four.

GENUINE SELF-DEFENSE

Because there has been much discussion in the press recently about self-defense and Stand Your Ground, I thought it might give some context to the discussion if I gave some examples of genuine cases of self-defense. I was the defense attorney in Case #1 and the prosecutor in Cases #2, 3, & 4. You can look at these cases for yourselves, compare them with some of the currently celebrated cases, and draw your own conclusions. I have included cases where ill-advised actions on the part of the shooter contributed to the killing. As I did in my last blog post, I am going to adopt a convention of creative nonfiction and use pseudonyms for the actors. This has less to do with trying to keep from embarrassing people than it does with the fact that I can’t remember the names of most of these people.

CASE # 1: Bar fights were common back in the early 70’s when I first began the practice of law, and a high percentage of my caseload consisted of shootings and cuttings. The prosecutor had what I thought was an unreasonable attitude toward murder. If you killed someone, you were going to get prosecuted for first degree murder. The prosecutor's office seemed to adhere to the simple formula "Point the gun + Pull the trigger = Premeditation." I could usually get my clients convicted of either manslaughter or second degree murder back in those days, but some of them actually got off. Benjamin Franklin Coolidge was one who got off. It all started at a dance hall which served liquor. Coolidge had gone there to have a good time and dance with the pretty ladies. Trouble was, he was dancing with the wrong lady. Her boyfriend began to try to pick a fight, and Coolidge decided it was time to go home. When he went into the parking lot, he noticed that the boyfriend had come out of the bar after him. Walking briskly to his car, Coolidge walked around and opened the driver’s side door. This put his car between him and the boyfriend. Coolidge could not possibly maneuver his car out of its parking spot and onto the highway before the boyfriend was upon him. As the boyfriend began to charge across the parking lot toward Coolidge, he reached into the car and pulled out his sawed-off shotgun. Resting the gun on the roof, he shot the boyfriend full in the chest. He then broke the shotgun open, reloaded, and walked to stand over the body. “Somebody call the police,” he ordered, “And the first one of you that tries to take the gun out of that dead man’s hand will join him on the ground.” When the police arrived, the deceased still had his pistol gripped firmly in his hand. Coolidge immediately dropped his shotgun, held up his hands and told the police to be sure and get the deceased’s gun. He was arrested on the spot, but the judge released him on his own recognizance after a preliminary hearing. The only charge the state filed was possession of a short barreled shotgun. If Coolidge’s barrel had only been a half inch longer, he wouldn’t have been sentenced to prison.

CASE # 2: Basal McKinney considered himself a man’s man. He could drink and fight with the best of them, and he wasn’t above shooting or stabbing people. He had several bullets in his body, souvenirs of shooting scrapes he had been in. The next-to-the last time he got shot, the bullet damaged his spinal cord, rendering him a paraplegic. This injury somewhat cramped his style for lying out in bars and fighting, so he retired to his singlewide trailer in the deer woods, where he pursued his two hobbies of drinking himself senseless and cursing people out on the CB radio. When he was sober he was an okay guy, and most of the people in the vicinity liked him enough to put up with his CB rants. One Saturday night as Josh Campbell drove his pickup through the woods, he got into a CB conversation with McKinney. They bantered back and forth for some time, with the language getting more and more explicit as the conversation progressed. McKinney invited Campbell to his singlewide for a gunfight. Campbell said okay, he’d be right over. Campbell thought it was just talk, but McKinney was serious. McKinney got his sawed-off shotgun and wheeled down the ramp to his driveway, where he took up a position awaiting Campbell. It wasn’t long before Campbell pulled up in the driveway and saw McKinney sitting in his wheelchair at the end. The next thing he saw was McKinney raising the shotgun and shooting his windshield out. Campbell did several things at once. He threw the car in reverse, floorboarded it, and returned fire with a 9 mm pistol. When he had gotten a safe distance away, he stopped and called 911. He gave the police a full statement, swearing that McKinney was his friend and that he really thought McKinney was joking about the gunfight. I believed him. When we got to McKinney’s singlewide, he was still sitting in the wheelchair right where Campbell had first seen him, but he was dead. One of Campbell’s wild shots had destroyed the femoral artery in McKinney’s left leg and he had bled out. McKinney’s housemate had taken the shotgun and thrown it onto the roof of the singlewide to try to make it look like Campbell had shot an unarmed man, but we broke his story down and he finally told us where to find the shotgun. Campbell took us up on our invitation to testify before the grand jury, and the grand jury no-billed the case.

CASE # 3: Joe Schmo’s wife was unfaithful, and Joe was unhappy. The boyfriend was a big, strong man, and Joe wasn’t. When Joe objected to the affair, the boyfriend beat him up. I don’t recall what precipitated the event, but one night the boyfriend came to Joe’s singlewide to beat him up again. Frightened, Joe armed himself with a single-shot shotgun while his wife admitted the boyfriend to the trailer. When Joe came out to the combination kitchen/living room, he told the boyfriend to leave. The boyfriend picked up a wine bottle off of the serving bar, got the bottle by the neck to use as a club and approached Joe. Joe told the boyfriend not to come any closer. The boyfriend raised the bottle threateningly and said “You don’t have the guts to shoot.” The boyfriend was wrong. Joe immediately called 911. When I arrived on the scene, Joe was standing on the front porch sobbing uncontrollably. The boyfriend was lying on the living room floor with the bottle near his outstretched hand, and the wife was taking a nap on the sofa not ten feet from the body. The grand jury no-billed the case.

CASE # 4: Frank Leonard and Rebecca McGregor were happily married newlyweds, but Rebecca’s ex-boyfriend was not happy. He stalked the pair for some time, threatening them, making harassing phone calls, and otherwise tormenting them. On the fatal evening, Frank and Rebecca were at home in their singlewide trailer when the ex-boyfriend drove up and began pounding on the front door, announcing his intent to kill Frank. Frank armed himself and called 911. As the old saying goes, “When seconds matter, the police are just minutes away.” Before the police arrived, the ex-boyfriend had broken out a window and crawled into the house. As the ex-boyfriend approached Frank, he saw that Frank was armed. “You don’t have the guts to shoot,” the ex-boyfriend said.  The ex-boyfriend was wrong. Frank shot, and he shot more than once. When the ex-boyfriend fell to the floor, no longer a threat, Frank immediately began administering first aid. He placed a pillow under the ex-boyfriend’s head and did what he could to stop the bleeding. It wasn’t enough. The ex-boyfriend was dead on arrival at the local hospital. No charges were filed.

I could go on giving example after example of people who acted in genuine self-defense, but I think you can see the pattern by now.

NOTE: I’ve handled several cases over the years where the deceased’s last words were something to the effect that the killer didn’t have the guts to shoot. This is a difference between real life and the movies. In the movies, whenever the potential shootee tells a potential shooter that he/she doesn’t have enough guts to shoot, the would-be shooter drops the gun and begins to cry. In real life, if somebody points a gun at you, never tell them they don’t have the guts to shoot.  

MY SECOND MURDER TRIAL

                I recently read a book on something called “creative” nonfiction. The idea of creative nonfiction is to tell a true story but tell it like it’s a novel or a short story. Several times I have picked up a book which purported to be a work of history, and it read like fiction. I would usually throw the book down and walk away from it. I want my history to read like history, not a novel. If you’re trying to get as close to the truth of what happened as possible, you’re not going to make it writing “creative” nonfiction. Although real life is more interesting to me than a novel, real life seldom follows a neat plot. Imposing such a plot on history turns history into fiction.

                This is a rather rough literary transition here, but hang with me. I’ve had some interesting cases that I’d like to write about, but I don’t want to embarrass innocent people on the periphery of those cases. Therefore, despite the fact that I don't like "creative nonfiction." I have therefore decided to adopt a “creative” nonfiction approach to these stories. As Joe Friday used to say in the introduction to Dragnet, “The stories are true. The names have been changed to protect the innocent.”

***

                Even though he was too young to drink, Curtis Davis liked to go to Magnusson’s Bar—it had excellent pinball machines and a tranquil atmosphere. Although fistfights, knife fights, and occasional shootings were common in most bars of that era, John Paul Magnusson maintained order in his bar with an iron hand and a wooden blackjack. Davis was at one of those pinball machines one weekday afternoon when Michael Anders came in and sat at the bar. Anders ordered a beer. He sat there nursing the beer for a few minutes, and then he got up and went back outside to his pickup truck. At the pickup, Anders pulled out his .22 revolver and stuck it in his waistband. He went back in, sat at the bar, and ordered another beer. When Magnusson brought the second beer, Anders asked him, “Do you remember last week when I was in here and got into an argument over a pool shot?” Magnusson didn’t answer. “You hit me in the head with a blackjack and threw me out of the bar, remember?” No response from Magnusson. “I told you I was going to come back and kill you. Well, I’m here to do it.” Anders pulled his revolver and shot Magnusson full in the face. Magnusson fell face down behind the bar, and Anders walked around behind the bar and stood over him. Anders then fired three more shots into the back of Magnusson’s head. He put the revolver back into his waistband, walked out to his pickup, and drove off. Young Davis saw and heard everything.

                Deputy Frederick Masters was on routine patrol when he received the BOLO (“be on the lookout”) for Anders’s pickup. Masters knew where Anders lived, so he headed in that direction to see if he could find him. It wasn’t long before Masters saw Anders’s truck driving down the road. He put on his blue light and pulled Anders over. He approached Anders sitting in the pickup and told him “You’re under arrest for attempted murder.” Anders replied, “Do you mean to tell me that son-of-a-bitch isn’t dead? I meant to kill him.” Masters got him out of the pickup, removed the revolver from his waistband, handcuffed him, and put him in the caged-in back seat of the patrol car. Masters then unloaded the revolver and secured it. As he was driving Anders to the jail, Anders asked “Was there any live bullets left in the revolver?” Masters replied, “A few.” Anders thought a moment and then said, “I wish I’d known that. I’d have shot him some more. I meant to kill that son-of-a-bitch.”
                When Masters got Anders to the jail, he turned his prisoner over to Stanley Hopkins, who was charged with conducting the investigation. Hopkins took Anders into the interview room and advised Anders of his rights. “You know you’re under arrest for attempted murder?” Anders replied, “Yeah, I know. I’m sorry he’s still alive. I meant to kill him.” Hopkins then proceeded to take a written statement from Anders in which Anders recounted a story almost identical to the statement given by Curtis Davis. Anders ended his statement by saying “I wish I had realized that there were more bullets left in the revolver. I’d have shot him some more. I want him dead.”
                By the time I got to the jail to talk to Anders, two things had happened. Magnusson had died from his injuries and Anders had sobered up. Anders had worked his way to the second level of justification that defendants charged with violent crime go through. When the shooting occurred, Anders was drunk and angry, and that’s all the reason he needed—level one. After he sobered up, Anders realized that intoxication and anger don’t justify a shooting, so he moved to the second level justification—Magnusson deserved to be shot. Anders told me that Magnusson had it coming because he was a violent man who regularly beat up his patrons for no apparent reason. We discussed Anders’s excuse at length, and I assured Anders that “he had it coming because he beat me up last week” was not a defense that the law currently recognized. This brought Anders to the level three justification—self-defense. Anders told me that Magnusson had a reputation for knocking people’s heads together, that Magnusson kept a blackjack and a pistol underneath the bar, and that Magnusson was going for his pistol when Anders shot him. He had some difficulty explaining the three shots to the back of Magnusson’s head. The best Anders could do was to claim that he was so gripped by fear that he just couldn’t remember exactly what happened after he started shooting. I went out to the bar to investigate and found Stanley Hopkins there measuring the dimensions of the bar so that he could draw an accurate floor plan for use at trial. While there, I discovered that Anders was correct. Magnusson kept both a handgun and a blackjack under the bar.
                Here’s the defense attorney’s dilemma. Your client tells you a story which lacks plausibility. You have your doubts about it, but you don’t really know if it’s true or not. The truth of the story is important because the canons of ethics forbid lying. What do you do? You tell yourself that you weren’t there, you don’t really know what happened, and your client just may be telling the truth. You therefor reserve judgment and present his story as persuasively as you can. Sometimes that implausible story is actually true. I had several cases where my clients told me outlandish stories which ultimately proved to be true. Despite the implausibility of Anders’s self-defense claim, I presented it to the jury.
                The first attempt at getting the case to trial ran aground before we could question the first juror. Davis didn’t respond to his subpoena and wasn’t in court the morning of trial. He had moved out of the county and left no forwarding address. This was fine with me, because I really didn’t feel ready for trial on that day. I had moved for a continuance several times, but the judge had shot me down every time I asked. Now the prosecutor was asking for a continuance. My response was a somewhat hypocritical objection to the motion. I really didn’t want to go to trial, but at that stage of my career the conventional wisdom was “If the prosecutor asks for it, you must oppose it or you are not doing your job.” I also felt a little guilty because I knew something that the prosecutor didn’t know. I knew where Curtis Davis was. Our investigator Grover Lamar “Poss” Lee (real name) had tracked the young man down and gotten his address. Something inside me told me that if I was really going to play fair, I ought to tell the prosecution where Davis was so we could get on with the trial. But a louder voice told me it wasn’t my job to help the prosecution prove its case. Despite the fact that I never told the prosecutor where Davis was, they eventually found him and reset the case for trial.
                The trial got off to a rocky start. I hadn’t really given much thought to the fact that Anders had an artificial leg, but apparently he had. He took the leg off and came to court on crutches. Both the judge and the prosecutor thought that I had talked Anders into removing his leg to curry favor with the jury. I assured them that I had done no such thing, but I don’t really think they believed me. When I chewed Anders out for getting me into trouble, he pulled up his pants leg and showed me that the end of his stump was red and raw. He said that the artificial leg had chafed his stump to the point that it was painful to wear. When Anders testified, the prosecutor asked him several sarcastic questions about the artificial leg, clearly suggesting to the jury that Anders was looking for sympathy. I probably could have objected and had the questions stricken, but I had another way to deal with the prosecutor’s suggestions. On redirect examination I had Anders pull up his pants leg and show the jury how reddened his stump was. I don’t think Anders convinced the judge or the prosecutor, but I do believe he convinced the jury.

                At every recess throughout the trial, the judge kept making a remark that both discouraged me and encouraged me: “This is a classic case of first degree murder! It’s too bad that there aren’t any aggravating circumstances.” As the judge saw things, Anders was going to get convicted of first degree murder, but he was going to escape the death penalty. The jury disagreed with the judge. They found Anders guilty of second degree murder. Maybe the crutches had something to do with it. Maybe Magnusson’s reputation had something to do with it. Maybe blind staggering luck had something to do with it. I'm relatively certain that the dazzling brilliance of his defense attorney had nothing to do with it.

                I may have had a shot at getting the jury to come back with manslaughter, if the judge had let me make the argument I wanted to make. There is a Florida Statute (Fla.Stat. § 782.11) that says when you unnecessarily kill someone while acting in self-defense, the crime is manslaughter. I asked the judge to give the jury a special instruction to that effect, and he refused. I thought that his ruling gave me a great point on appeal, but the appellate court ruled that the judge properly denied my requested instruction.

                Although few people would call a Second Degree Murder conviction a defense victory, both Anders and I were happy. Florida still had parole back in those days and people serving life sentences could expect to get out in seven years if they misbehaved. That certainly beats the penalty for First Degree Murder—life with a mandatory 25 years before coming eligible for parole. Anders got out on parole after serving about ten years, but he couldn’t behave and wound up going back to serve the rest of his life sentence.