Mitigation Pleas: You're Doing It Wrong

[Alyrium Denryle]

For example, suppose a white man murders a black man. Suppose evidence comes to life that this white man has hated blacks all his life, and thinks they are devilish mud-beings created by Satan.

Do we give this man less time in prison, because he committed his murder in a fit of irrational revulsion, which is a pretty close parallel to the "gay panic" defense? Or do we give this man more time in prison, because it is in society's interest to punish hate crimes harshly?

Likewise, is trans panic a mitigating defense, or an aggravating circumstance? It is not unreasonable for such questions to be a matter of law, in my opinion.

Coffee got it in 1 with this:

Depends on the circumstances of the murder, I'd imagine. Is it a case of a racist white man going out his way to find a black man to kill or did he walk in on the black guy sleeping with his wife? Either way the racism would play a factor, but for mitigation purposes it's two entirely different cases. Turns out context is important, who knew.

It is actually not unreasonable to have it be Both. The specific-victimization of trans people (or black people) is aggravating. The Diminished Capacity is mitigating. Splitting the difference in sentencing would not be an unreasonable response.

So basically, a hate crime gets a double whammy of extra punishment in my book. One whammy is because it is (all else being equal) more depraved- an act that is more at odds with the values of civilized society. The second whammy is because it is an act of terrorism, in the literal sense of the term. But even without the intent to commit terrorism against the minority, it is still more depraved.

The problem with the first bit is that it gets into issues of thought-crime, which opens up a hornets nest that the US legal system does NOT want to touch for a variety of reasons. In reality, it is both. Legally really it is only the terrorism aspect that counts. It is why hate crimes are delineated by protected classes, rather than being about "killing someone because you hate some arbitrary aspect of them".

Doing something for more evil reasons can make it more depraved, even if the physical act is unchanged. For instance, committing cannibalism for pleasure is highly depraved; committing cannibalism for survival under famine conditions is only slightly depraved, and perhaps not depraved at all.

Yeah, but depravity is highly highly context dependent and that is where mitigation comes in. There is a certain societal presumption that cannibalism is pretty fucking depraved independent of its motive. The motive comes in as a mitigation to say "I ate them, but I had no choice and they were already dead" which reduces or eliminates the presumption of depravity.

In your example, the depravity is only identical because in both cases, the victim was targeted for being a transsexual. If in one case the murderer had acted because the victim was transsexual, and in the other case the murderer had acted for reasons that had nothing to do with the victim's sexuality, minority status, or group identity... then there would be a difference.

Yes. I am not arguing for the invalidation of hate crimes. I controlled for that intentionally to show how Panic is a legally valid (but seldom successful) mitigation defense, because there is a difference in responsibility between someone who HUNTS members of a protected class, and someone who flips out that exists in addition to the depravity of the crime.

It is possible to have a function of

S=A+D-M
Sentence=Act+Depravity-Mitigation

Couldn't you simply say that the victim's identity as a black/white/green/male/female/straight/gay/trans/cis/whatever person is not an acceptable reason to kill them? That legally a person's capacity to take responsibility for their actions cannot be decreased by "but he was an X," even though it can be decreased by other forms of distress?

Already addressed it. But basically no, because that would violate Equal Protection and impair substantive due process.

[Simon_Jester]

Depends on the circumstances of the murder, I'd imagine. Is it a case of a racist white man going out his way to find a black man to kill or did he walk in on the black guy sleeping with his wife? Either way the racism would play a factor, but for mitigation purposes it's two entirely different cases. Turns out context is important, who knew.

Still doesn't have anything to do with a defense lawyer under the US legal system having a duty to defend their clients to the best of their ability (even if that includes making retarded and/or repugnant arguments to do so).

Yes, but there are precedents for barring certain specific kinds of arguments, that there are things the defense lawyer cannot appeal to. And my entire argument is that we should revise the system to block out the "gay panic" and "trans panic" and "Asian panic" and whatever else is out there. We can reasonably declare that any legally competent person can be held responsible for not lashing out with lethal violence upon learning something unexpected about who the other person is.

Bigotry panic defenses I would be perfectly ok banning (as in anyone who is a protected class for hate crimes or such cannot have their status used for a panic defense. this isn't perfect but it's a start)

The legal problem with this is that the defense is never about the status of the victim. They never say the panic was justified, in much the same way that no defense attorney is going to make the claim that killing the person you find in bed with your spouse is actually justified. The defense is a diminished capacity defense. The person is less responsible because they were emotionally impaired at the time. Still guilty, but less responsible than someone who stalked and killed their victim. The status of the victim is not actually legally relevant, only the mental state of the accused at the time.

Again, I don't think it would be inappropriate to change this. To saythat we expect any legally competent person to avoid lashing out upon learning about who another person is.

We can allow for emotional impairment when dealing with someone who has wronged the defendant, or threatened them, or attacked someone they care about, or otherwise committed some wrong. But upon learning an unexpected fact about the defendant's identity? Maybe that shouldn't be admissible. Or at least, not without rather extensive efforts to prove that this defendant is uniquely vulnerable to such panic.

This becomes a problem when someone charged who has that defense restricted appeals their conviction on Due Process and Equal Protection grounds, because the exact same defense can be used to protect the person who kills their husband's lover, and this defense is being restricted on the basis of something that is not actually legally relevant. So you either end up back where you started, or you end up having to scrap Diminished Capacity defenses, which would result in massive system wide miscarriages of justice.

So it's all or nothing, there is no way to remove one class of thing from the heading of 'diminished capacity defense' without knocking out the whole concept?

[Gaidin]

I've got an honest question for those that have a serious problem with these arguments. Is there a particular reason we can't trust the judge to make a proper ruling on which of these arguments that, if I understand those trained in law correctly, wouldn't carry a lot of precedent anyway(feel free to correct me), to let fly and which ones to smack down?

[Mr. Coffee]

Depends on the circumstances of the murder, I'd imagine. Is it a case of a racist white man going out his way to find a black man to kill or did he walk in on the black guy sleeping with his wife? Either way the racism would play a factor, but for mitigation purposes it's two entirely different cases. Turns out context is important, who knew.

Still doesn't have anything to do with a defense lawyer under the US legal system having a duty to defend their clients to the best of their ability (even if that includes making retarded and/or repugnant arguments to do so).

Yes, but there are precedents for barring certain specific kinds of arguments, that there are things the defense lawyer cannot appeal to. And my entire argument is that we should revise the system to block out the "gay panic" and "trans panic" and "Asian panic" and whatever else is out there. We can reasonably declare that any legally competent person can be held responsible for not lashing out with lethal violence upon learning something unexpected about who the other person is.

Yes, I get that. What I disagree with is limiting options of defense attorneys to defend their clients. Bigotry based ""X-panic" arguments being valid or not is for the judge presiding over the case to decide on a case by case basis. As the judge in the OP case demonstrated, trying to mitigate your client's crimes by saying "It's ok, it's not like the transgendered are actually people" turns out to be an invalid defense. Again, who knew?

[Crossroads Inc.]

As a lawyer, In sympathyze with the defense attorney. I once was complicit with a Bank not returning ~500k to a mentally-ill old lady, legally tutored by one of her daughters, because her other daughter forged her signature. I was defending the Bank.

I know this is way WAYYYY Off topic.. But I saw this post and had to comment...
I worked in a bank for three years, and one thing I learned is that being part of a bank, you HAVE to learn to be "Evil".
On an almost daily basis I had to deal with people asking for money back in situations where they were dipped, defrauded or swindled, and in almost all cases I couldn't give back a single penny because, however much it was THEY had willingly got into said fraud/scam.

I remember working with one Individual who lost over 60k to an "investment" company that turned out to be just a massive scam. The company vanished over night once the checks cleared.

To the poster, I deeply feel for your situation in having to defend something so onerous.

[Alyrium Denryle]

Yes, but there are precedents for barring certain specific kinds of arguments, that there are things the defense lawyer cannot appeal to. And my entire argument is that we should revise the system to block out the "gay panic" and "trans panic" and "Asian panic" and whatever else is out there. We can reasonably declare that any legally competent person can be held responsible for not lashing out with lethal violence upon learning something unexpected about who the other person is.

*sigh*

Except in those cases where exceptions are made, there is no probative value. The rape victim thing again. The issue in a rape trial is whether or not the victim consented. Their prior sexual history is not relevant to that determination. That is why it can be narrowly construed to have no other legal consequences.

If a victim is Protected Class X, it does not matter. Because that status is not relevant to the state of mind of the defender. You want to define a diminished capacity defense out of existence because you personally dont like the conditions under which a person's mental faculties might be diminished. Do you have any fucking comprehension of how dangerous setting a precedent like that is? Do I need to draw you a motherfucking diagram? What happens when some Mens Rights lobby group goes after Spousal Abuse syndrome as a Diminished Capacity defense in cases where an abused housewife murders her spouse? Before, because the defendants state of mind is all that mattered, the legal system could avoid making this sort of thing a political football. Now, you have opened the door to anyone with a god damn axe to grind, and down the rabbit hole we go, where it will stop, who the fuck knows?

Moreover, there are cases where an X-Panic defense is valid, and DOES NOT imply bigotry. I can think of a number of possible scenarios involving unwanted physical contact and PTSD from rape off the top of my head. And you never really do know how you might react to something unexpected. For example, if someone goes into a gay bar without knowing it is a gay bar and get their ass grabbed. Their fight or flight response might just switch to Fight without any bigotry or even conscious input being involved. Such people, if you have your way, are fucked.

Keep in mind, I am using the example of my own protected class here. I have actually been the victim of hate crimes. I find it somewhat silly that I am sitting here defending the existence of the gay/trans/other protected class panic defense on legal and civic principle.

That sort of thing is what a trial is supposed to figure out. It has sets of rules that are meant to facilitate this, not restrict it (an Adversarial system is not the best one for this, I admit), while also protecting the rights of the individual accused from the whims of public opinion. But if you get your way, you will have torpedoed due process, and that cannot happen anymore.

We can allow for emotional impairment when dealing with someone who has wronged the defendant, or threatened them, or attacked someone they care about, or otherwise committed some wrong. But upon learning an unexpected fact about the defendant's identity? Maybe that shouldn't be admissible. Or at least, not without rather extensive efforts to prove that this defendant is uniquely vulnerable to such panic.

Or, you let the god damn judge decide on a case by case basis if it is admissible.

This is the sort of complicated thing that is beyond the competence of the legislature, and uniquely suited to an independent judiciary.

Try this on for size. As a society, we generally consider killing police officers to be bad. Yet, we also consider self defense to be a justification. So what happens if a police officer stops you on the road, and seems intent on raping you (yes, it happens) so you grab the little hatchet you use to clear downed branches on country roads you periodically drive on, and stove in his skull. Lets say you have a dash cam and can prove it in court.

But now, because the legislature in their infinite wisdom has decided that police are an extra special protected class and put into law legislation specifying that there can never be any justification for killing a police officer under the color or law... you are guilty of capital murder. Your dash cam footage will not be admitted at trial.

That is what you want to do. The legislature cannot foresee or account for the complexities of a situation that might lead to a person sitting in a court room. That is why so much of criminal law is written in the vague way it is. The definition of murder is set in stone, but all the mitigation and justification defenses are left vague or default to the Reasonable Person standard of common law, because to do anything else would be beyond the capacity of the legislature to handle.



A gay panic defense (or Other Minority Panic defense) is not usually valid on its face and works even less often. But sometimes it is valid, and even rarer it works because of some strange happenstance of the defendant's history. And I would rather it be tried a hundred times and be laughed out of court 99, if it prevents a miscarriage of justice once.

So it's all or nothing, there is no way to remove one class of thing from the heading of 'diminished capacity defense' without knocking out the whole concept?

Pretty much. If you deny the defendant a defense because you dont like it, you basically kill substantive due process.

Remember, a Diminished Capacity defense relies on the notion that the defendant's state of mind was such that they did something they otherwise would not have done. No judgement about whether or not that state of mind is justified is made, save to determine that the state of mind existed. At least in mitigation arguments. Once you start getting into whether or not something qualifies as Manslaughter instead of Murder, different standards apply (namely, the Reasonable Person standard and what is considered reasonable necessarily changes over time as the society evolves).

So their mental state matters irrespective of whether or not that mental state is rationally justified (keep in mind, the entire defense is predicated on them not being exactly rational at the time). Until... what? It no longer matters because you have suddenly, in a particular set of cases, decided that we shall now consider whether rational justification is involved and mental state is now irrelevant? Really?

You have decided the conclusion in advance by changing the rules for particular cases of Diminished Capacity. It would be as if, in hate crime trials, hearsay testimony became admissible. Thus, you violate due process.

[Thanas]

It is even more troubling in an adversarial system because you would essentially leave it to the legislative to define what classes are and what are not specially protected. Is anybody really here having any faith in the US congress never deciding at some random point in the future to screw LGBT people over again? Let's say the US goes through another conservative mood a la Reagan in the next ten or twenty years, as will most likely happen. What then?


If you have an inquisitional court system where the constitutional court defines who deserves protection or not then that is less of an issue. But the US does not.

[Simon_Jester]

If a victim is Protected Class X, it does not matter. Because that status is not relevant to the state of mind of the defender. You want to define a diminished capacity defense out of existence because you personally dont like the conditions under which a person's mental faculties might be diminished. Do you have any fucking comprehension of how dangerous setting a precedent like that is? Do I need to draw you a motherfucking diagram? What happens when some Mens Rights lobby group goes after Spousal Abuse syndrome as a Diminished Capacity defense in cases where an abused housewife murders her spouse? Before, because the defendants state of mind is all that mattered, the legal system could avoid making this sort of thing a political football. Now, you have opened the door to anyone with a god damn axe to grind, and down the rabbit hole we go, where it will stop, who the fuck knows?

So to summarize, in your opinion, no. No, we cannot cut holes in the diminished-capacity defense, without inviting more people cutting more holes in it until the thing is a piece of Swiss cheese.

OK. There is a pretty damn good chance that you're right and I'm wrong, so I will cease to advance my proposal. Thank you for expanding my understanding of law.

That sort of thing is what a trial is supposed to figure out. It has sets of rules that are meant to facilitate this, not restrict it (an Adversarial system is not the best one for this, I admit), while also protecting the rights of the individual accused from the whims of public opinion. But if you get your way, you will have torpedoed due process, and that cannot happen anymore.

Well, I wouldn't say I was doing that- defining due process in a way somewhat less sympathetic to some defendants is not the same thing as destroying it. We do sometimes get legal decisions that result in the prosecution's life getting easier, and that would probably still happen even in an ideal world.

But that is a semantic dispute, and therefore irrelevant-ish. And it seems pretty likely to me that you are right and I was wrong about the whole thing.

But now, because the legislature in their infinite wisdom has decided that police are an extra special protected class and put into law legislation specifying that there can never be any justification for killing a police officer under the color or law... you are guilty of capital murder. Your dash cam footage will not be admitted at trial.

That is what you want to do.

In my defense, that is not quite what I proposed to do; I was proposing to eliminate a single specific mitigation defense, one which seems to me so inherently fallacious that it could never be valid.

However, this might nevertheless be beyond the capacity of the legislature to do properly; certainly nothing has happened in America lately to give me much faith in the capacity of legislatures in general, or our legislatures in particular, to show Solomonic wisdom in the writing of laws.

So their mental state matters irrespective of whether or not that mental state is rationally justified (keep in mind, the entire defense is predicated on them not being exactly rational at the time). Until... what? It no longer matters because you have suddenly, in a particular set of cases, decided that we shall now consider whether rational justification is involved and mental state is now irrelevant? Really?

You have decided the conclusion in advance by changing the rules for particular cases of Diminished Capacity. It would be as if, in hate crime trials, hearsay testimony became admissible. Thus, you violate due process.

See, my thinking was more that we've reached a point where "my capacity is that badly diminished by Teh Ghey that I lashed out and killed someone" should be considered as a form of insanity defense, that anyone who would act in that way has a serious mental health issue that needs treatment, and should neither go to prison nor be set free until that is addressed.

However, I accept the basic thrust of your argument, and am no longer pushing for the alternative.

[PainRack]

Are you not familiar with hate speech laws and how they don't make a country descend into total censorship when applied despite restricting free speech for the protection of vulnerable populations?

My understanding is that hate speech laws in the US would have allowed for this, since they only proscribed speech that cause imminent danger.

So, a Ku Klux Klan screaming about how blacks are evil and inferior, taking over the country is protected speech, but a KKK screeching about how Black Due A is evil and we should all go out and crucify him on Friday is not.

[Alyrium Denryle]

I will note, for the sake of clarification:

When i am referring to the Gay Panic defense of Trans Panic, I am referring to it in its colloquial form, which in reality is basically a hodgepodge of subsets of OTHER valid diminished capacity defenses within which issues of sexual orientation and Gender are wrapped up and contribute. Some of them are plausible as defenses under particular conditions. Others (such as appealing to fake psychiatric conditions) are not and are almost never admissible.