The Kickham Comment - Boston Criminal Attorney Blog
Predictably, the Michelle Carter verdict, my legal analysis of which I posted previously, has dominated both public discourse as well as legal debate over the last couple of days. And with equal predictability, this debate has broken down along lines of civil liberties groups (such as the ACLU,) as well as so called “cyber rights” and “social media/internet free speech” groups, loudly criticizing it. Critical re-emphasis of the contextual facts of this case, validating the judge’s verdict, is much needed here.
Those who disagree with this judge’s decision, base their positions on largely these two bases:
- That because Massachusetts does not currently have a specific statute on the books criminalizing the act of “encouraging” a person to commit suicide, the judge’s finding is without legal foundation. This claim is entirely false as a matter of law, as I will discuss below.
- That this judge’s ruling will have a “chilling effect” on any discussions involving assisted suicide in the future, whether between physician and patient, or between friends, or between family members. This claim is without merit, and either ignores or intentionally distorts the context within which the facts of this case took place. Such unfounded claims concentrate that Michelle Carter was convicted of the charge of Involuntary Manslaughter, but not why she was. Again, deletion of factual context allows this distortion, and correction is needed.
Addressing the first of these contentions, above: While some states have enacted statutes that criminalize specific online activities, whether directly between two people in the form of emails and/or texts (as here, between Michelle Carter and the victim, Conrad Roy III,) or more publicly through via social media platforms, violation of a specific statute is not required to produce a conviction or guilty finding of a criminal defendant. Period. Decisional law (meaning prior case decisions or precedents; more colloquially referred to as “common law”) form the basis of criminal convictions every day, in courts across this country, including Massachusetts. And that violation – of common law – is what this judge rested his verdict on.
As I discussed in my previous post on this case, in Massachusetts a conviction of Involuntary Manslaughter requires that the prosecution prove beyond a reasonable doubt the existence of two legal elements: 1) That the defendant intended that the specific death in question result from his or her actions, and 2) That the defendant’s conduct rose to the level of “reckless disregard” for the defendant’s life. Those requirements are not statutory on this charge in Massachusetts – and they need not be in order to produce a conviction. If the trier of fact (i.e., judge or jury) finds that the evidence establishes that both of these legal elements are met, then a conviction is required. Thus, opponents of this decision who base their opposition on these grounds, do so at the peril of exposing their lack of legal acumen.
As to the next requirement – that the defendant’s actions constitute “reckless disregard” for the victim’s safety or life: Little need be said here as to just how shockingly, unconscionably reckless Michelle Carter’s actions here, actually were: Carter knew that young Mr. Roy had been haunted and disabled by depression, for quite a long time. Further, she knew he had previously attempted suicide – and that he had abandoned those plans. To characterize her actions as “reckless” is actually minimizing the malignancy of her conduct. “Depraved” would be far more accurate a description of what she did.
And let’s discuss with greater specificity exactly what it was that she “did” – and the legal animus it demonstrated: Some media outlets have reported that Carter exchanged “some” texts with the victim in which she “suggested” that he commit suicide. Quite false: In fact, these two individuals exchanged hundreds of texts on the subject, with Carter repeatedly encouraging young Roy to “do it”, in dozens of texts that she sent young Roy encouraging him to commit suicide. The evidence showed that Carter exerted such emotional force and pressure on this emotionally weak and vulnerable boy, that he actually ‘apologized’ to her on more than one occasion for not going through with the act when he previously told her he would. In fact, even on the night the young man finally did take his life, after he had rigged his truck to pump carbon monoxide fumes into the cabin of the vehicle, and he was in the process of gasping for breath, he once again expressed second thoughts to Carter via text Carter’s angry text response: “Get back in” (the truck.) Further Carter was especially savage in her pressuring young Roy to take his life, texting him just days before his suicide: “I still don’t think you want to do this so you’ll have to prove me wrong . . . hang yourself, jump off a building, stab yourself. I don’t know. There’s lots of ways.”
This conduct so far exceeds the legal standard of “recklessness”, that it not only shocks the conscience, it strains credulity to term it merely “reckless.” Legally speaking, it is “depraved.” For an example of recklessness, consider the following analogy: Person “A” is walking along a rocky coastline, close to the dangerous edge of a cliff, hundreds of feet below which lay nothing but jagged rocks and certain death if one were to fall over the edge. “A” encounters “B”, a clearly blind person who is using a walking stick. “B” asks “A” where a bench is, to sit down. “A” tells “B”, the blind person, to turn left and walk 20 feet toward the cliff edge — knowing that these instructions would cause the blind person to fall over the edge of the cliff, to his near-certain death. Such an act might meet the legal definition of “reckless disregard” for the victim’s life or safety. The animus displayed by what Michelle Carter did was so far beyond reckless as to be heinous.
As to opponents of this verdict’s next objection – That this judge’s ruling will have a “chilling effect” on any discussions involving assisted suicide in the future, whether between physician and patient, or between friends, or between family members. On a primary level, this claim ignores the murderous intentionality of this Carter’s heinous actions here, and catastrophically presumes that if anyone were to express empathy with a person who is terminally ill and considering medically assisted suicide, that such a person could or would be prosecuted under the reasoning of the Carter case. First, such a hypothesis is – to depart from the language of formal legal analysis – so ‘far-fetched’ as to strain logic and credulity. Second, the legislature is free to at any time pass a statute with clarifying language, making it very clear that such discussions do not constitute either an intent to cause an otherwise healthy person’s death, or “reckless disregard” for the other person. To claim that this present case decision forebodes the prosecution of friends, family members, or medical/psychological professionals who speak with a person either seeking or receiving mental counseling, or seeking/receiving medical assistance – without evidence of animus – is to strain legal reasoning.
Without doubt, this case will be appealed. And as a Massachusetts homicide attorney, I think it should be. But I don’t believe it will be overturned, and I don’t believe it should be. As a Massachusetts criminal defense attorney, I fight endlessly – tooth and nail – for my clients – even when I know the legal odds are slim. But when both the law and the facts are against you, you must accept the facts.
For those who disagree with this verdict to call for the legislature to pass clarifying legislation specifically codifying what actions do and do not constitute criminal conduct in the case of a suicide, is advisable and I encourage it. To say, however, that this case will be employed to prosecute anyone who speaks to someone prior to that person’s suicide, without evidence of animus, is to catastrophize beyond reason. Such hysteria and hyperbole rarely, if ever, lead to sound law and public policy.