a public defender

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Scott’s recent post jogged my memory about a problem I had a number of years ago with the generally accepted proposition that manslaughter is a lesser included offense of murder.

Generally speaking, one offense is a lesser included offense (LIO) of another, if you cannot commit the greater crime without committing the lesser. The best example of this, in CT law, is Robbery 1st and Robbery 3rd. They both share identical elements, except Robbery 1st had the additional element of a firearm/weapon. So, it is simple that you cannot commit Robbery in the First degree without first committing Robbery 3rd.

For the most part, I understand this concept. The only area that I cannot seem to get my head around is how manslaughter is a lesser included offense of murder. (Note: This doesn’t mean that it isn’t; just that I don’t get it.)

The best place to start is the statute itself. The murder statute reads:

(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception;

The elements:

1. Specific intent to cause death
2. Of another person
3. Causes death

So, given our Robbery example above, shouldn’t it follow that the Manslaughter statute should contain some of the elements of the murder statute, but not all?

Here’s Manslaughter:

(1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

Sub (1) cannot be an LIO of Murder, because it has an element different than that of murder, viz., the intent to cause injury as opposed to death. Sub (2) is what you get when you mount a successful EED defense to murder, again by negating intent.

Sub (3) on the other hand, is interesting. The elements broken down:

1. Circumstances evincing extreme indifference…
2. recklessly engage in conduct
3. create a grave risk of death
4. causes death

The only element similar to murder is the causation. In both, the acts of the accused have to cause the death of the victim. But that is where they diverge. Murder requires the specific intent to cause the death of another. Manslaughter requires that you act in a reckless manner and essentially don’t care if someone else dies. It’s clear that it is a different element. However, the courts seem to interpret it as a not fully formed element. It’s almost as if we’re saying that recklessness is half-way to specific intent.

So if you have the specific intent to kill someone, you also don’t care if they die. This I get from the acquittal first charge. The acquittal first charge says that you must first acquit of the greater before considering the lesser. However, in several cases, the courts have reversed a conviction on the greater (murder), finding an insufficiency of evidence and then remanded for a re-sentencing on the lesser (manslaughter), on the premise that in order to convict of murder, the jury must have found all the elements of manslaughter.

It is this that I cannot get my head around. So they’re essentially saying that on a scale of 1-3, murder is 3 and manslaughter is 2.5. In order to get to 3, you have to get to 2.5 first.

I just don’t buy it, though. How do you reconcile the intent to kill someone with the lack of regard for whether they live or die? Isn’t it the opposite? If you intend to kill someone, you care very deeply whether they live or die. So how is not caring whether someone lives or dies a step on the way to wanting them to die?

Or does this all make sense to you and I’m just nucking futs.

Sources: State v. Whistnant, 179 Conn. 576 (1980), State v. Greene, 274 Conn. 134 (2005), State v. Carpenter, 214 Conn. 77 (1990).