let me be the first to say....Scott Peterson is one guilty motherfucker.

[UpsideDownFlag]

glad it's finally over. now, our news can be filled with important things, like jessica simpson and Nick Lachay's pending divorce.

[Sannum]

1. or...

the newest Paris Hilton sex tape:eyes:

[Mojambo]

2. You think you're the first one to say it?

You don't watch much Court TV do you?
:D

[UpsideDownFlag]

5. the first one to say it in DU's JCL forum. heh. nt

[madinmaryland]

3. dont forget about the blake murder trial

baretta

its endless.

[Mojambo]

4. We're also due for some idiot kid to fall down a well n/t

[BlueHandDuo]

7. I can't read any news about the Blake trial without...

...bursting into song:

Don't do the crime if you can't do the time, yeah, don't do it!

It's embarrassing. I wish I could stop.

[iverglas]

6. well, almost

He may have committed one homicide (I don't pay enough attention to this kind of crap to have an opinion as to what he did, i.e. as distinct from what a jury found him to have done), but he did not commit two homicides.

Causing an abortion is not homicide, and a statute that provides for someone who commits that act to be prosecuted for homicide or punished as if s/he had committed a homicide is not constitutional in the US. The law may not simply punish someone for any old thing s/he might do that legislators choose to call "homicide" just because s/he is really not nice. That's not what "equal protection of the law" means.

Last I heard, there was at least one case working its way through the courts in some US state in which this argument (and others) was being made against a "fetal-homicide" statute, although such statutes have been upheld by some state appellate courts.

"Fetal homicide" laws are legal gibberish.

They exempt legal abortions from the law that provides that fetuses are human beings for the purpose of homicide laws / that causing an abortion is homicide for the purpose of homicide laws.

That's like making the killing of mothers-in-law legal, and then enacting a homicide statute that makes the killing of mothers-in-law illegal if their children object to the killing. Complete nonsense.

If a fetus can be "murdered", it is a human being, and all abortions must be regarded by the law as murder. Otherwise, some fetuses could be "murdered" while others could not -- and so some fetuses would be more equal than others, and that ain't equal protection either.

Homicide is the killing of a human being, and causing the termination of a pregnancy is not homicide.

[cjmr]

8. Was the child inutero?

I haven't seen the medical expert trial testimony, but last I heard they could not tell (because of the condition of the remains) if the baby was in utero when the mother was killed and "born" dead due to postmortem muscle contractions, or was born alive after she was killed and tossed into the sea and then drowned, or was born while she was being killed and tossed alive into the sea.

That would certainly affect the number of murders committed.

Does anyone have more information on this than me?

[iverglas]

11. oops? -- I did say ;)

-- I don't follow stuff like this. When you mentioned it, I did recall hearing something to the effect of there being evidence that there had been a birth. (Hard to miss hearing something when US channels are all over my Canadian dial!)

http://www.cnn.com/2004/LAW/10/26/peterson.trial.ap/

But a key defense witness, Dr. Charles March, came under heavy attack from prosecutors when he testified that the fetus probably died on December 29, 2002, at the earliest.

"He promised to show the baby was born alive and there's been no evidence of that," said Johnson, the legal expert. "He promised to show that Peterson was 'stone cold innocent' and he hasn't done that, so this is now a case that's going to come down to reasonable doubt."

I suppose it came down to what evidence the jury accepted? Up here, juries are prohibited from discussing their deliberations with anyone; I imagine the California jury will be heard from in due course, if it hasn't already. It looks like the evidence of birth was pretty tenuous.

What a dog's breakfast! If the jury found that the baby was born alive, then there *could* properly be two homicide convictions. I guess Peterson was on the horms of a bit of a dilemma in terms of what to try to prove on that point:
- live birth, chance of being found not guilty of both homicides, but two legitimate convictions if he was;
- stillbirth, likelihood of being found guilty of the homicide of the woman, any success on appeal against the "fetal homicide" completely Pyrrhic since he'd still be sentenced on the real homicide.

I gather that the prosecution stuck to the theory that the fetus was expelled post-mortem and was stillborn.

Since verdicts do not include a statement of what evidence was accepted (I'm assuming that there was none), and jurors' post-trial statements carry no weight, this would certainly not be a good case for challenging the "fetal homicide" law.

An appellate court could find that it had been open to the jury to find that the baby was born alive, and that if the jury had so found then the guilty verdict on the second homicide charge was proper even if the "fetal homicide" law was unconstitutional. (Depending on the actual wording of charge he was convicted on, I suppose -- was it even open to the jury to convict of a second homicide if there was no fetus, but rather a baby?)

Obviously, there are few prosecutions under "fetal homicide" laws where a pregnancy was forcibly terminated and the pregnant woman lived. Not surprising that there have been few appellate decisions, and that no case has yet gone to the US Supreme Court.

[imenja]

12. no, baby was never born

The defense expert who initially claimed the baby was full term (and therefore could not have been killed by Peterson) fell apart on the stand. Apparently he was entirely discredited and didn't end up saying what Geragos had claimed. The pundits say that was the turning point of the case. So evidently all reliable expert testimony said the baby came out of the womb while under water, some time after death. The defense had tried to hire some of the well known forensic experts--Michael Baden, Henry Lee, some others, and couldn't get any of them to support the defense position.
I think the poster of this thread is probably right. That guy is guilty, and a sociopath at that.

[slackmaster]

9. Causing termination of a pregnancy is a heinous crime

Other than extraordinary situations where next of kin or doctors have decided to do so for the good of a woman who is not capable or competent to make the decision, surely we would agree that someone who has caused the end of a pregnancy against the will of the woman has done a terrible thing, and deserves to be punished for it.

Fetal homicide or (as in California law) fetal murder or involuntary termination of a pregnancy or make up some other term for it, what difference does it make what you call it?

Section 187 of the California Penal Code has been in its present state for over 30 years, and so far nobody has tried to leverage it to gut Roe v. Wade. Nobody has successfully challenged the law either.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199

Homicide is the killing of a human being, and causing the termination of a pregnancy is not homicide.

Killing a fetus may not be homicide, but if it's done in California other than as a lawful abortion it is murder. I've seen plenty of people complaining about how statutes like PC 187 might be used as the basis of a challenge to Roe v. Wade, but those who express that concern have little to offer as an alternative way of addressing the terrible crime of killing a fetus against the will of its mother. State legislatures may not be made of the brightest legal scholars or even the smartest people, but the California fetal murder statute addresses that need and so far hasn't caused any threat to the right to choose abortion.

If you have a better idea iverglas, I'd like to see it. But I think if you, for example, made killing of a fetus a degree issue appended to the assault and battery statute, it would still be open to the same criticism.

[iverglas]

10. missed the point

"so far nobody has tried to leverage it to gut Roe v. Wade."

That actually wasn't what I was talking about, of course. My point was that the "fetal homicide" provision is a violation of the equal protection clause as regards individuals charged under it.

There are, of course, numerous other things wrong with such legislation. But the basis on which it should very easily be struck down is that one.

What, the courts have upheld these statutes over the last couple of decades in the US? Gosh, quelle surprise. Let me assure you that no court in Canada would ever do so. Well, the odd court might -- an appellate court in Quebec some years ago actually did grant an injunction to a man seeking to stop his former fiancée from terminating her pregnancy -- but the Supreme Court of Canada would make short work of it, as it did in that case. As far as I know, the issue has not reached the US Supreme Court.

The persons convicted of such offences who would be the appellants are not exactly sympathetic characters. But then, as I understand it, neither was Miranda.

The logical flip side of US state "fetal homicide" laws is that someone who was seeking to stop a termination could argue equal protection for that fetus. If one fetus is a human being, or is deemed to be a human being for the purposes of granting legal protection against "homicide", another fetus cannot be denied such protection based on the whim of the pregnant woman in question.

How about the fetus of a woman who is using drugs that are known to harm fetuses? Oh, that's right; you guys already punish women for doing that. At least, when it's African-American women using crack, you do. How about a nice mainstream-America woman taking cancer treatment that will foreseeably damage the fetus or abort the pregnancy? Lots of equal protection issues there.

Protecting one "X" against killing, but doing nothing to protect another "X", is just about the grossest instance of denial of equal protection one can imagine. As I said: it's illegal to kill mothers-in-law, unless their kids agree?

And guess what? the ACLU agrees with me:

http://archive.aclu.org/issues/reproduct/fetal.html

and makes quite a number of very cogent arguments. I'm not going to copy and paste any of them, because anyone wanting to engage in discussion of the matter needs to read the entire paper.


"Killing a fetus may not be homicide, but if it's done in California other than as a lawful abortion it is murder."

Uh ... murder is a particular form of homicide.

There are various ways (as described in the ACLU paper) of achieving the goal of treating pregnancy-termination like homicide. Here is California's (note that "malice aforethought" simply means intent to kill; many laypeople get hung up on that "malice" business and think it calls for particularly ill will):

<edit: I see that for first-degree murder, some "expressed malice" is required. I assume this goes to the issue of premeditation.>

187.

a. Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

b. This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

1.The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

2.The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

3.The act was solicited, aided, abetted, or consented to by the mother of the fetus.

c. Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.

"Murder is the unlawful killing of ... a fetus."

What's to stop the California legislature from saying "murder is the unlawful picking of an apple"? If murder is to "be" something other than the unlawful killing of a human being, where does it stop? Hmm ... where equal protection requires it to stop? Unless life in prison/death is to be applied for any crime.

those who express that concern have little to offer as an alternative way of addressing the terrible crime of killing a fetus against the will of its mother.

Oh give me a break. (On more than one point: fetuses do not have mothers. Language can be so important in framing the discourse, no?)

Most criminal law systems have special provisions for various kinds of assault; there is "common" assault, and then there are assault with intent to wound, assault causing bodily harm, assault with a weapon, etc. etc.

What exactly would be the problem with "assault with intent to cause termination of pregnancy" and "assault causing termination of pregnancy"?

But I think if you, for example, made killing of a fetus a degree issue appended to the assault and battery statute, it would still be open to the same criticism.

Why? The forcible termination of a pregnancy is grievous bodily harm. Even if there is no lasting physical damage to the woman, it is still serious. How many sexual assaults result in permanent physical injury? And yet the law treats sexual assault more seriously than common assault. Nobody seems to have challenged that arrangement, and nobody would likely succeed if s/he did. The acts are different, and society's interest in preventing and punishing them is different.

Has someone who forcibly terminates a pregnancy (say, without lasting physical damage to the woman) done a more "terrible thing" than someone who shoots a child in the spine and leaves him/her paralyzed and brain damaged for life? It kind of depends on one's perspective, eh? But the law doesn't (well, is not permitted to) rely on personal perspectives in defining offences and sentences.

For the law to say -- by defining it as homicide and applying the punishments for homicide -- that forcibly terminating a pregnancy is "worse" than leaving a child helpless and in pain and unable to function for life, well, some would say that's bizarre -- and I think that a pregnant mother (i.e. a woman who is pregnant and already has a child) offered a Sophie's choice between the two might agree. And I, and many other experts, would say it's a denial of equal protection.


Once one starts messing with fundamental things like the subject matter of the law -- whom the law is designed to protect, i.e. human beings -- one just makes such a mess.

If a fetus to be treated as a human being for the purpose of granting it the protection of the law of homicide, why not for the purpose of granting it the protection of, oh, child support and custody laws? How can it not be given protection equal to the protection granted "other" children? How can that be done without The Handmaid's Tale coming true? Something either is or is not a human being; there are no sorta human beings, or partly human beings. And the principle that no pigs is more equal than any other pigs is just pretty fundamental.

And how can anyone be prosecuted for homicide for causing the termination of a pregnancy, if someone else isn't prosecuted for whatever the local version of endangering a child is for skydiving while pregnant? Without violating the equal protection rights of the person charged with homicide, and of the skydiving fetus, that is.

[legalcoffee]

13. It's Amazing Really

The distance that one can put between humanity and law. It's necessary I see that but before anyone metaphorically puts pregnant women in moving planes the people as a whole have to be considered. Mothers, Daughters, Sisters, Lovers, homeless women on the street, We all play different roles in life and for those of us who rely on those roles as motivation to live taking them away to differentiate between black and white has not provin successful thus far.
You also have to consider the influence of the unknown. The thought of innate ideas is a completely different discussion, but also one that I think must be considered. The "what if" factor comes in and although it's not the most logical train of thought there are people devoting thier lives to discover the "what if's in this world" the consequence of the specific "what if" is enough to provoke resonable doubt but it all goes back to what helps us sleep at night.


-new to the forum

[RPM]

14. who cares

.....

[Name removed]

15. Deleted message

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