At least once a month this scenario plays out in my conference room.  A client, usually a younger male, sits at my table, staring at the charging documents in his hands.  He has just been served with a criminal complaint that alleges that he committed an assault.  With a puzzled expression on his face he asks, “How can I be charged with an assault?  I never laid a finger on him!”  Or, he says, “I barely touched him . . . he didn’t have a scratch on him!”  I, unfortunately, have to break the bad news to him:  under the law, assault doesn’t always require contact or injuries.  Welcome to the strange world of criminal law.

If you look up the word assault in a non-legal dictionary, the most common definition is something along the lines of “a sudden, violent attack.”  But, if you look up the word in a legal dictionary, you get a different definition, usually something like “an attempt to do violence, with or without battery.”  

People are often confused by the terms homicide, murder and manslaughter.  When reading the newspaper, they wonder why one defendant gets life for murder, while another person gets probation for manslaughter, which, in a way, sounds worse than murder.  It even gets more confusing when people are confronted with terms like felony murder.  After all, aren’t all murders felonies?

Here is a brief explanation of the terms, with some specific references to statutes in South Dakota that may be used as examples, regardless of what jurisdiction you live in. 

Homicide is simply the killing of one person by another.  It may or may not be illegal.  Soldiers in battle commit homicide without committing a crime.  Citizens kill intruders without committing a crime.  So, what is it that separates a legal homicide from an illegal murder?  And, what makes one killing a murder and another a manslaughter?

One of my best professors in law school was Peter W. Tague. I took his evidence and criminal law courses at Georgetown Law, and he knew the subjects well. More importantly, unlike many of my other professors, he had actually practiced law before he taught. He had been a public defender in California during the late 1960’s and had tried a lot of cases. What really made Professor Tague stand out was his humility. I’m sure he won many cases at trial, and got many other clients great plea offers. But, he never talked about those cases. Instead, when he used a past case for a teaching point, he referred to cases he lost and what he learned from those losses. Often, the cases were hopeless from a defense standpoint, but Professor Tague tried something unique to win his client’s freedom, more often than not without success. He threw the proverbial “Hail Mary” when no other options existed. Rarely are Hail Mary’s caught, but it great to see a quarterback throw one when no other receivers are open. And, clients always appreciate a lawyer who is willing to try something, anything, on their behalf.

The Erosion of the Right to a Public Jury Trial and a Defendant’s Right to Presence

Rape cases are often the most difficult cases to handle. Many attorneys shy away from them, not wanting to be involved in cases that involve the kinds of facts that arise in these cases. Frequently the issues raised strike close to home for many attorneys, jurists, and jurors. Almost everyone knows someone who has been raped or sexually assaulted. Many people know someone, including themselves, who may have ended up doing things while highly intoxicated that they can’t completely recall later. These factual issues, along with a fascinating legal issue, were the subject matter of a recently released Eighth Circuit case. On April 7, 2014, the Court released United States v. Fast Horse. The case involved a common scenario with an uncommon legal twist.

My last post discussed a recent Supreme Court victory. I represented Kyle Steiner in a habeas corpus action stemming from a child sex abuse case. After years of fighting, Kyle obtained some justice. A week after the Steiner decision was released, the South Dakota Supreme Court issued its decision in State v. Graham. The full text of the decision can be read on my web site, www.murphylawoffice.org. The result in that case, however, was not in our client’s favor. The Court found in our favor on one issue, but ultimately concluded that my client’s murder conviction would stand. His life without parole sentence was also affirmed. The Graham case was incredibly complex. It involved the murder of a female political activist named Anna Mae Pictou Aquash in the mid-1970s. My client’s extradition was contested for 3 years in Canada. His federal murder charges were twice dismissed and those dismissals affirmed by the 8th Circuit Court of Appeals. After his case was transferred to state court, evidence came to light that the federal government knew all along that my client should not have been charged federally. During discovery, we found that the government had paid two witnesses over $170,000 in tax free “expense reimbursements” for conducting a handful of recorded interviews that yielded nothing of significance. The file included over 5000 documents, over 100 audio recordings, and a multitude of witnesses. But, in the end, the jury convicted our client of felony murder for his alleged participation in a kidnapping that preceded the woman’s death. Another man, Arlo Looking Cloud, was convicted of premeditated murder.