The Kickham Comment - Boston Criminal Attorney Blog
The recent media coverage about the death of Nancy Kerrigan’s father, which has now been ruled a homicide by the Massachusetts Medical Examiner’s office, illustrates how fast and furious an argument can escalate into something far more dire: Potentially a murder charge. Kerrigan, of course, is the 1994 Olympic figure skater who was the target of a physical attack by associates of her rival, Tonya Harding.
Kerrigan’s brother, Mark Kerrigan, 45, was arrested on January 24 on a charge of assault and battery after Stoneham police responded to a domestic disturbance call from the Kerrigan home. On arriving, the police reportedly found Kerrigan’s father, Daniel Kerrigan, lying unconscious on the kitchen floor at the house at about 1:30 AM. He later died at the hospital he was taken to. The medical examiner’s office determined that Daniel Kerrigan suffered from high blood pressure and clogged arteries, but that the cause of death was “cardiac dysrhythmia” – which is an interruption of the normal heart beat – after a “physical altercation with neck compression” that fractured the cartilage in his larynx. In other words, that Mark Kerrigan precipitated the events that led to the elder Kerrigan’s death, through the act of putting his hands around his father’s neck and attempting to strangle him.
Officers said Mark Kerrigan appeared intoxicated and was found in the basement trying to hide a bottle of Scotch. Police reported that the younger Kerrigan was combative, that they had to use pepper spray to subdue him, and had to forcibly carry him out of the basement. The report filed by the arresting officers says, “(Mark Kerrigan) said he wanted to use the phone and his father would not let him. He said he struggled with his father and put his hands around his father’s neck and his father fell to the floor.” The younger Kerrigan reportedly has a long history of domestic violence, substance abuse and mental illness. Last year, he was released from prison after serving more than two years for assaulting his wife and threatening her with a knife. He was staying in his parents’ home, even though they had sued him recently for what they said was over $100,000 in unpaid debts. He was reportedly taking medication for post-traumatic stress syndrome, and is presently being held under psychiatric evaluation. Nancy Kerrigan, joined by her brother Michael and their mother Brenda, have criticized the coroner’s finding as “premature and inaccurate,” insisting that her brother is not to blame for the elder Kerrigan’s death.
Legally, what could Mark Kerrigan be charged with? Not likely murder. In Massachusetts, a charge of murder in the first degree must be supported by evidence of premeditation or extreme cruelty or atrocity. Neither seems to be indicated by the evidence here. Much more possible, is a charge of involuntary manslaughter or voluntary manslaughter. The differences? If you click on either of these two links, my web site makes it all pretty clear, but I’ll sum it up very briefly again, here:
Voluntary Manslaughter:
The definition by Massachusetts case law: “The unlawful killing of another, intentionally caused from a sudden transport of passion or heat of blood: (1) upon a reasonable provocation and without malice or upon sudden combat; or (2) from the excessive use of force in self-defense.” Voluntary manslaughter involves a killing without malice, distinguishing the crime from murder. Under voluntary manslaughter, the defendant did intend to kill the victim or inflict serious bodily harm, but due to the existence of some mitigating circumstance(s), the law infers that malice was not present. This can apply when the killing occurs out of passion or the heat of the moment that results from a “reasonable provocation” or a spontaneous fight. It applies when “adequate provocation” causes the defendant, in essence, to lose the self-control that would be expected of an ordinary, reasonable person. Exactly what does and doesn’t constitute “adequate provocation”, is an objective test of whether an ordinary person would have been provoked by the situation in question. It’s possible that an aggressive prosecutor might opt for this charge here, but, as a Norfolk County criminal defense lawyer, I don’t see this charge as applying to the police report filed in this arrest.
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Involuntary Manslaughter: “(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or (2) an unintentional killing resulting from a battery.” This is the much more likely charge that will result in this case. (Particularly given the victim’s family’s insistence that Mark Kerrigan had no intent to cause death or serious bodily harm to the victim.)
This sad family story should send a message to anyone inclined to think that a simple fight will stay that way – a few punches thrown, and no big deal. As a Boston asault and battery lawyer, I have seen more cases than I care to remember, where either one person thinks he/she has the right to physically attack another, or two people agree to engage in mutual combat – only to have it end in the serious injury or death of one or both. All it takes is a fractured larynx, a punch landing on the head, all fall backward splitting the skull, a blow to the chest causing sudden heart failure, and it’s over. If not “over” as in death, definitely “over” as to the rest of that person’s prospects in life. I’ve seen more assault and battery cases escalate into far more grievous legal charges, such as manslaughter or even murder.
Translation: Unless in self-defense, keep your hands to yourself.