CRIMINAL LAW AND PROCEDURE Copyright July State Bar of California

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1 Copyright July State Bar of California Jane, a police officer who was not in uniform, attempted to make a lawful arrest of Al for distribution of a controlled substance. Doug, who did not know eier Al or Jane, arrived on e scene, a poorly lit alley, and did not realize at Jane was a police officer. Because Jane was wearing civilian cloes and holding a gun on Al, Doug ought Jane was robbing Al. Doug ran up and shoved Jane away from Al, who fled down e alley. Jane fired a shot at Al, killing Al. Doug en wrestled e gun from Jane and shot Jane, killing Jane. Doug was indicted for murder of Jane under a statute which mandates imposition of e dea penalty for first degree murder of a peace officer who is in e performance of her duties. During jury selection, over Doug's repeated objections, e prosecutor used his peremptory challenges to remove all African-Americans and dea penalty opponents from e jury. 1. What factual and legal defenses are available to Doug and, if ey are accepted by e jury, of what crime, if any, should Doug be convicted? Discuss. 2. If Doug is convicted, how should e appellate court rule on on argument at e prosecutor's actions during jury selection denied Doug rights under e Six and or Fourteen Amendments to e United States Constitution? Discuss. 3. If Doug is convicted of first degree murder as charged and e jury is instructed at it has no discretion as to penalty, would imposition of e dea penalty violate Doug's rights under e Eigh Amendment to e United States Constitution? Discuss. 4. Did Jane act lawfully when she shot Al? Discuss.

2 Copyright July Scott F. Pearce, Esq. Outline I. Doug's defenses to homicide: A. Defense of oers: B. Self-defense: C. Doug's criminal liability: 1. First degree murder of a peace officer in e performance of her duties: 2. Homicide liability: common law murder and manslaughter. II. The prosecution's conduct during jury selection: A. Removal of African-American jurors violates e 14 Amendment. B. Peremptory challenges may be used to exclude dea penalty opponents. III. Mandatory dea penalty statutes violate e 8 Amendment. A. The 8 Amendment B. Right to Present Exculpatory Evidence C. Conclusion IV. Jane did not act lawfully when she shot Al.

3 Copyright July Scott F. Pearce, Esq. Answer I. Doug's defenses to homicide: After Jane shot Al, Doug wrestled e gun away from Jane and shot her to dea. Doug has been indicted for e murder of Jane. A. Defense of oers: Doug's initial use of non-leal force on Jane was legal, despite e fact at Doug was mistaken when he ought Jane was robbing Al at gun point. In fact, Jane was making a lawful arrest of Al, for his alleged distribution of a controlled substance. Doug ran up and shoved Jane away from Al. Al fled, and Jane shot Al as he tried to escape. Doug wrestled Jane's gun away from her and shot her to dea. Doug did is immediately after Jane shot e fleeing Al. Doug's use of a deadly weapon establishes his malice. The viability of Doug's 'defense of oers' defense may depend on wheer or not e jurisdiction allows a reasonable mistake to be made by one who uses deadly force in e defense of oers. Alough Jane should not have shot Al, it is doubtful at Al would have had e right to defend himself wi deadly force, given e fact at he was fleeing a lawful arrest. If e jurisdiction requires Doug to 'stand in e shoes' of e person being defended, is defense will fail. If a reasonable mistake is allowed, Doug would have a better chance of escaping liability for killing Jane. Ultimately, is defense is likely to fail, regardless of e jurisdiction. Doug disarmed Jane. She no longer posed a reat to Al, and Doug did not make e already-wounded Al any safer by shooting Jane. B. Self-defense: One is allowed to use deadly force to overcome e deadly attack of anoer. The problem wi is defense is at Jane was not capable of making a deadly attack on Doug, because he had already disarmed her. C. Doug's criminal liability: 1. First degree murder of a peace officer in e performance of her duties:

4 Assuming at none of Doug's efforts at justifying e killing of Jane are successful, it is likely at Doug will escape liability for e specific charge of first degree murder of a peace officer who is in e performance of her duties. Jane was wearing civilian cloes. She never indicated at she was a peace officer. The incident happened in a poorly lit alley. Doug acted spontaneously in reaction to what he mistakenly ought was e armed robbery of Al, and he did not have time to premeditate before he shot Jane. 2. Homicide liability: common law murder and manslaughter. Doug's killing of Jane was probably not justified. Doug had disarmed Jane. She no longer presented a reat to eier Doug or e wounded Al. If e finder of fact accepts at Doug honestly, but unreasonably, believed his life was in danger, he could be convicted of voluntary manslaughter. Oerwise, it is likely at he would be convicted of common law murder. II. The prosecution's conduct during jury selection: During jury selection, over Doug s repeated objections, e prosecutor used his peremptory challenges to remove all African-Americans and dea penalty opponents from e jury. A. Removal of African-American jurors violates e 14 Amendment. The prosecutor used peremptory challenges to remove all African-American jurors. The Equal Protection Clause of e 14 Amendment guarantees e right to be tried by a jury pool at is not tainted by racial discrimination. Doug will win e right to a new trial if e prosecution cannot present a race-neutral explanation of ese peremptory challenges. B. Peremptory challenges may be used to exclude dea penalty opponents. The prosecutor used peremptory challenges to exclude dea penalty opponents from e jury. This does not give Doug any grounds for raising a 6 Amendment objection. His right to a fair and impartial jury is not compromised by e prosecutor's use of peremptory challenges. Doug would have grounds to object had dea penalty opponents been excused for cause. III. Mandatory dea penalty statutes violate e 8 Amendment. Doug has been convicted of e murder of Jane under a statute which mandates imposition of e dea penalty for first degree murder of a peace officer who is in e performance of her duties. A. The 8 Amendment The 8 Amendment protects ose convicted of crimes from cruel and unusual punishment. It guides

5 e rules surrounding capital punishment. B. Right to Present Exculpatory Evidence The Supreme Court has found it 'cruel and unusual' to mandate dea sentences wiout allowing e sentencing auority to consider e aggravating and mitigating factors in each case. Even ough Doug's 'defense of oers' and 'self-defense' efforts at justifying his killing of Jane are likely to fail, ey could be considered mitigating factors at would justify sparing his life. C. Conclusion If e jury is instructed at it has no discretion as to penalty, imposition of e dea penalty would be a violation of Doug's 8 Amendment rights. IV. Jane did not act lawfully when she shot Al. Jane fired a shot and killed Al, who was running away as a result of Doug's shoving Jane. Her use of a deadly weapon establishes malice. A police officer may not use deadly force to apprehend a fleeing felon unless she has probable cause to believe e felon poses a significant reat of dea or serious injury to e officer or oers, e use of deadly force is necessary to prevent e escape, and a warning is given if feasible. Distribution of controlled substances, alough harmful, is not e kind of violent felony which commonly justifies e use of deadly force in apprehending a fleeing felon. Al was apparently unarmed. He did not pose a reat to Jane, and noing in e facts suggests he posed a significant reat of dea or serious bodily injury to anybody else, eier. It appears Jane made no effort to warn Al. Jane did not appear to have sufficient time to premeditate e killing of Al to justify first degree murder liability. Had Jane lived to face charges, she probably would have been convicted of common law murder.

CERTIFICATION PROCEEDING

CERTIFICATION PROCEEDING PURPOSE: TO ALLOW A JUVENILE COURT TO WAIVE ITS EXCLUSIVE ORIGINAL JURISDICTION AND TRANSFER A JUVENILE TO ADULT CRIMINAL COURT BECAUSE OF THE SERIOUSNESS OF THE OFFENSE ALLEGED