The Pointed Gun And Mens Rea

It was the first time a cop had been prosecuted for a homicide in Chicago in 15 years, according to Think Progress, and that was bad enough.  But what happened, a trial order of acquittal, went over the top.

Late Monday, a Cook County judge acquitted Chicago police officer Dante Servin of several homicide-related charges for the fatal shooting of an unarmed woman standing outside with some friends near his home. It was the first time in 15 years that a police officer had been charged in Chicago for a fatal shooting. And the courtroom attendees exploded in outrage as Judge Dennis Porter announced Servin was not guilty on all charges for killing 22-year-old Rekia Boyd.

But Porter’s ruling was particularly confounding because of bizarre reasoning that some legal experts are calling “incredible.”

Servin’s acquittal of involuntary manslaughter was stunning, but raised intricate issues of the mens rea distinguishing murder from manslaughter.

Servin was off duty when he fired the shots. He encountered a group gathered in an alley while driving through in his Mercedes sedan. As he drove the wrong way down the alley after an altercation, he said he thought he saw one of the men reach for a gun and fired several shots over his shoulder at individuals who had their backs to Servin. Servin hit 22-year-old Rekia Boyd in the back of the head, killing her.

At trial, the testimonial fight was largely directed to whether Servin’s belief that he was justified in using force was objectively reasonable.  Was it self-defense?  As it turned out, that issue was left undecided, as the crime with which he was charged required the mental state of recklessness, where he unintentionally kills someone, but “disregards a substantial and unjustifiable risk” that his actions will cause death.

Judge Dennis Porter held that Servin’s firing his gun, over his shoulder, in the general direction of some guy who might have been reaching for a gun and, instead, killing Rekia Boyd, could not, as a matter of law, be reckless, but intentional.  In other words, he had committed murder, unless he prevailed on his justification defense.


Think Progress “legal experts” offer this analysis of Porter’s decision:

Porter asserts that a defendant who does something intentionally could not have also been reckless, and thus should not be convicted of anything at all. But this distinction between recklessness and intent “really doesn’t make any sense at all,” University of Illinois law professor Marareth Etienne told ThinkProgress. At least under the national criminal law standard known as the Model Penal Code that all first-year law students are taught in Criminal Law 101, a higher state of mind such as intent “always proves a lower level,” in this case, recklessness.

This is inexplicable nonsense, that “intent ‘always proves a lower level,'” and should be wiped from your mind immediately. The mens rea of intent is the antithesis of reckless, which expressly requires that the act be unintentional. If this is what is being taught to first year law students, no wonder they can’t pass the bar exam.  And the lawprof’s name is Margareth Etienne.

But Etienne points out that this is a very different legal argument. “To dismiss a case where recklessness was charged because intent was proven. That’s a different question,” she said, while conceding the possibility that Illinois courts would come out a different way on this question.

And this is why states have their own bar exams, and why people should have a clue what the law provides before offering their expert legal opinion.

“This is incredible!” University of Illinois Director of Trial Advocacy J. Steven Beckett said. “It appears to me that a lesser included offense was ignored because the proof of the greater offense was obvious. This put prosecutorial decision-making under scrutiny beyond anything imaginable.”

“When a motion for directed verdict is made by the defense, the evidence must be considered in the light most favorable to the prosecution,” Beckett points out. “What the judge did here appears to be just the opposite!”

Well, no.  While involuntary manslaughter is a lesser offense, they have an entirely different mens rea element.  There must still be evidence that the mens rea element of recklessness exists for the lesser crime to be submitted to the jury.  Just because there is evidence to support the mental state of the greater offense doesn’t mean mens rea is otherwise ignored as to the lesser offense. Odd as it may seem, there must still be evidence to prove all the elements of an offense before it can go before a jury.

Timothy P. O’Neill, a professor at John Marshall Law School in Chicago, questions Porter for another, different reason.

“I respect Judge Porter, but at the same time I think he maybe made the case a little bit more difficult than it had to be,” O’Neill said. Even if Servin intended to fire the gun, he seemingly didn’t intend to hit Boyd. He instead intended to hit the man whom he believed was pulling a gun out of his waistband.

“You can do intentional acts and still be found guilty of involuntary manslaughter based on results,” O’Neill said.

While a more thoughtful analysis, this still misses the mark. The crime of murder isn’t dependent on the shooter’s good aim, but on his intent to kill.  If Servin intended to kill one person, but missed and killed another, it’s no less intentional murder.

Does that make Judge Porter’s order of acquittal legally correct?  Not necessarily. Indeed, shooting blindly into a crowd is the classic example of recklessness, knowing that a bullet from a gun has a high probability of causing death and, disregarding that, shooting anyway, despite the absence of specific intent to kill a particular person. But what of Illinois law?

In his analysis, Judge Porter explains that

Illinois courts have consistently held that when the defendant intends to fire a gun, points it in the general direction of his or her intended victim, and shoots, such conduct is not merely reckless and does not warrant an involuntary-manslaughter instruction, regardless of the defendant’s assertion that he or she did not intend to kill anyone.

And, indeed, that appears to be the law in Illinois. People v. Eason.  Point and shoot a gun, and it’s an intentional act, precluding submission of involuntary manslaughter to the jury.

An involuntary manslaughter instruction is not warranted where the evidence reveals that the defendant voluntarily and willfully commits an act that has the natural tendency to cause death or great bodily harm, as such acts demonstrate an intent to kill or injure the victim. People v. Foster, 119 Ill.2d 69, 87-88, 115 Ill.Dec. 557, 518 N.E.2d 82 (1987).

Yet, that doesn’t quite reflect the facts of this case, as Servin fired “over his shoulder,” which isn’t the same as deliberately pointing at an individual or even an amorphous blob of people, either of which would be sufficient for a charge of first degree murder if it resulted in death. There need only be “slight evidence” that the defendant was “shooting aimlessly” to support recklessness rather than intentional homicide.  This may be a stretch, but it’s not outside the ballpark as the prosecution gets the benefit of having the facts viewed in the most favorable light when the defendant moves for acquittal.

Notably, the caselaw deals with the more common situation where a defendant seeks a charge to a lesser offense in the hope of a jury compromise. Yet, the same doctrinal reason for not charging down exists for not submitting the crime to the jury directly.  If an element of a crime cannot be proven as a matter of law, then the charge can’t go to the jury, regardless of which side makes the argument.  It may feel wrong, but it’s how the law is supposed to work, that a jury cannot deliberate on a charge when the law precludes a finding of guilt.

Of course, none of this needed to happen, as the prosecution could have charged murder in the alternative. But it didn’t.  How fortuitous that this happened when the case involved the first cop to be charged with homicide in 15 years.  What are the chances such a fortuitously poor charging decision would be made if it hadn’t been a cop’s hand on the gun.



52 thoughts on “The Pointed Gun And Mens Rea

  1. Scott Morrell

    Another fascinating case. You keep me thinking every morning, thus ruining my workout schedule in order to reply. Thanks Scott!

    So if I understand this correctly, because the officer was charged with intentional murder by aiming at his victim, the result of “a miss” of the intended target and the killing someone else absolved him of reckless (involuntary) murder charges? This seems like a ridiculous mis-charge for the case you cited.

    If the cop shot over his shoulder, that seems to me by definition as an odd way to have precise and intentional aim at his target. How a lesser charge was not brought against the officer is puzzling.

    The question I have is would a law abiding citizen with a registered gun been afforded the same generous charges?

    1. SHG Post author

      You’ve got the details a bit wrong. Servin was charged with reckless, but the Judge held that the law mandated intentional rather than reckless under the facts at trial. If there is an “intended target,” then it can’t be reckless as it’s intentional.

      Yes, it was a monumental and needless charging screw-up, and no, I wouldn’t bet on the same charging mistake to happen had it not been a cop.

          1. Patrick Maupin

            I’m all for the state only getting one bite at the apple, but it’s infuriating when they (apparently deliberately) don’t leave any teeth marks.

          2. Bartleby the Scrivener

            I find myself wondering if the prosecutor did the job they knew they were “supposed” to do.

          3. bacchys

            I’m reminded of the Connecticut rape case thrown out by the CT Supreme Court because the prosecutor charged under a rape statute that didn’t fit the facts of the crime.

            There was a lot of kneejerk outrage at the court over that one, too, though I think this judge is on a bit shakier ground.

  2. Marc R

    Why didn’t the defense file a motion to dismiss earlier? It seems unbelievable the defense would raise this issue the first time as JOA, risking the denial and a jury verdict. Unless they knew the state didn’t charge voluntary manslaughter on purpose.

    If he didn’t know which person was allegedly pulling a guy and fired backwards over his shoulder then there’s no intended target. But it wasn’t firing a gun on 4th of July in the air and the bullet coming down killing someone nearby. This was in the middle where involuntary is absurd as he admitted to blindly firing into a crowd and not identifying his target. Regular, voluntary manslaughter?*

    My only experience in illinois criminal law is finding out they destroy all case records after 10 years so that no police reports exist and they only keep the certified conviction papers…so good luck arguing the illinois conviction for agg batt applied under NY’s elements would merely yield simple battery

    1. SHG Post author

      I wondered the same thing, though I don’t know whether the grand jury minutes were too vague to support the motion, and it wasn’t until the prosecution rested that it was ripe.

      Edit: Bennett makes a better point, that had they moved to dismiss before jeopardy attached, the prosecution could simply reindict for murder and it would have been worse.

      1. Marc R

        They could have. But I personally don’t like the idea of not making a move to avoid trial than bank on JOA. Maybe the government would give up after a successful motion to dismiss. Maybe they’d offer a plea on a lesser like unlawful discharge of a firearm or charge agg assault on another victim.
        I’ve seen it played both ways I think it’s best to keep as many steps between my client and a guilty plea/verdict than gamble on a judge getting the law right and having my client do a year and a half before the appeals court reverses or, worse, remands and a new case begins.

      1. Mark W. Bennett

        Double jeopardy does not bar prosecution for first-degree murder because in Illinois involuntary manslaughter has elements (“unintentional,” “recklessly”) that murder doesn’t, and murder has an element (“intentionally,” “knowingly,” or even “know[ing] that such acts create a strong probability of death or great bodily harm to that individual or another”; a murder, like an involuntary manslaughter, can be unintentional) that involuntary manslaughter doesn’t.

        With regard to your response to JGG, Judge Porter’s holding did not hinge on the killing being intentional. He never found that the killing was intentional, and he wrote, “It should be readily apparent, without further discussion, that the first three elements of involuntary manslaughter have been proven in this case.” Judge Porter found that the defendant’s conduct was “beyond reckless.” In Illinois, unlike in (say) Texas, proof of some greater mental state does not prove the lesser mental states. See Texas Penal Code Section 6.02(e) (“Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”).

        With regard to Marc R’s comment, it doesn’t appear from the order that the defense raised this issue at all. But if the defense had recognized the issue—that the State had undercharged the defendant—it would have been exceptionally stupid to raise it before trial.

        1. SHG Post author

          Double jeopardy attaches to the prosecution for underlying conduct, not the statute under which it’s tried, even when there are other statutes. Otherwise, the state could bring successive prosecutions, one after the other, for exact same conduct until it achieved a conviction.

          As to Marc R’s comment, good point. As to your middle point, who gives a shit what Texas law says, as this ain’t Texas.

          1. Aaron

            Eh? How do you square that with what the Illinois Supreme Court has said about double jeopardy?

            “For a double jeopardy claim to be viable, it must be shown that the two offenses charged are in law and in fact the same offense. It is the identity of the offense, and not of the act, which is referred to in the constitutional guaranty against double jeopardy. […] A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” People v. Hairston (1970) 46 Ill.2d 348, 358 (internal citations and quotation marks omitted.)

            If the elements of murder and involuntary manslaughter are different (which seems to be case in Illinois) then this acquittal can’t bar a subsequent prosecution for murder.

            1. SHG Post author

              Ah, Blockburger:

              Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

              While you are correct that there are different mens rea elements, there is no element requiring proof of an additional fact.

            2. DaveL

              Does a fact and the negation of that same fact constitute two distinct facts for the purpose of Blockburger?

              Either way, I don’t see a prosecutor making new or subtle legal arguments for the sake of prosecuting a cop.

            3. ecpa

              In Knapp v. Leonardo, 46 F.3d 170 (2d Cir. 1995), the court held that defendant’s previous acquittal of intentional murder did not preclude retrial on reckless murder or manslaughter charges: “The Blockburger test is easily satisfied in this case.   A conviction for intentional murder requires proof that the defendant’s ‘conscious objective’ is to cause death or to knowingly engage in murder.  N.Y.Penal Law § 15.05(1).   By contrast, recklessness-whether for reckless murder or for reckless manslaughter-requires proof that the defendant ‘is aware of and consciously disregards a substantial and unjustifiable risk’ that death will occur.  Id. § 15.05(3).   Because the mental states of these crimes differ, no double jeopardy violation resulted from Knapp’s retrial in connection with Velzy’s death, even though there was ‘an overlap in proof’ between the first trial and the retrial.”

            4. SHG Post author

              When did they move Illinois to New York and the 2d Circuit? Should we scavenge every DJ case in every jurisdiction to find a crappy pro se deft case that says something silly? But as long as we’re talking 2d Circuit, it hasn’t exactly been consistent on the issue either: United States v. Lynch, 162 F.3d 732 (2d Cir. 1998)

            5. Mark W. Bennett

              While you are correct that there are different mens rea elements, there is no element requiring proof of an additional fact.

              Put down the doubling cube, Scott. Either involuntary manslaughter is a lesser-included of murder, in which case the judge shouldn’t have ordered acquittal; or involuntary manslaughter is not a lesser-included of murder, in which case the prosecution for the latter is not jeopardy-barred by an acquittal for the former.

            6. SHG Post author

              Sorry, but your paradigm is wrong. Whether a given set of fact meets or fails to meet the requirements as a matter of law for a particular mens rea element isn’t an additional fact to be proved.

              Just because Texas has a statute that fudges the mens rea element doesn’t mean civilized nations should similarly resort to “whatever.” The facts remain the facts. Whether it is sufficient as a matter of law to establish the mens rea required for that level of culpability is a separate question. And if may be sufficiently ambiguous to present a jury question, or not.

              If anything, I would hope this would help you to recognize the failing of Texas law that presumes each level of culpability to be a lesser subset of its predecessor, despite being logically inconsistent. The law eliminates the need to prove an element, as it goes down the line of charges. This isn’t a good thing.

            7. DaveL

              Whether a given set of fact meets or fails to meet the requirements as a matter of law for a particular mens rea element isn’t an additional fact to be proved.

              So do I understand correctly that although the mens rea elements to be proven are different and mutually exclusive between the two crimes, since the underlying facts demonstrating that mens rea are the same (firing over his shoulder at the victims), there are no “separate facts” here that would distinguish the two charges under Blockburger?

            8. SHG Post author

              The facts proving the mens rea element of each offense are the same. Whether they suffice to prove the element, as a matter of law, is different separate issue, but it doesn’t change by addition or subtraction of facts.

              This has now officially been explained to death. If you don’t get it, I can no longer help.

  3. JGG

    The court ignores the statute cited in Eason. There, recklessness is defined in the following way:

    “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

    This says nothing about recklessness being unintentional. Rather, it states that recklessness is a conscious disregard of a unjustifiable risk of (in this circumstance) causing death in a way that constitutes a deviation from reasonable care. It’s possible to act intentionally AND to consciously disregard a risk of causing death in a way that constitutes a deviation from reasonable care. Indeed, in the Servin case, I don’t see how it could be otherwise. Under the statute, it’s simply not true that a mens rea of intent rules out a mens rea of recklessness.

    1. SHG Post author

      Judge Porter quoted the definition of recklessness in his decision, but you’ve confused the statutory definition of recklessness for the elements of the crime of involuntary manslaughter.

      Sec. 9-3. Involuntary Manslaughter and Reckless Homicide.
      (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly…

      You don’t get to make this stuff up. The crime expressly provides that the killing must be unintentional.

      1. JGG

        I believe you’ve violated the norms of internet discourse by actually reading the primary source.

  4. Stephen

    But they’re scholars and legal experts and you’re just a curmudgeon who actually reads the statutes. You cheated.

  5. Ted H.

    Funny how an incorrectly rigid view of mens rea works against criminals and in favor of the police. Go figure. Can’t have any of these gang-bangers getting off on involuntary manslaughter charges now, can we? I can see the reasoning that he didn’t want to open up that door. FWIW, the judge held that the facts satisfied the unintentional act element, so your reply to JGG is inapposite.

    1. SHG Post author

      So it’s “incorrectly rigid” because you don’t like the outcome? And where did the judge hold “the facts satisfied the unintentional act element”?

      1. Ted H.

        It’s incorrectly rigid because it makes logical and moral sense than an intentional criminal act is also a reckless criminal act. Sure states will vary, but I’m nearly certain that the MPC views mens rea that way too. But it should only go one way, and here the judge perverts the logic so as to not upset precedent for drive-by murder instructions IMHO. As for the judge’s holding, perhaps “held” is too strong, but on page 5 of the linked opinion he writes: “…the first three elements of involuntary manslaughter have been proven in this case.”

        1. SHG Post author

          It’s totally logical, and as for moral, that has no place in the discussion. Take that up with the deity of your choice.

          More importantly, be careful of a bit of inartfulness in the decision. There is the “intent” to kill a person, the “intent” to kill a specific person and the “intent” to point and fire a gun in the general direction of people. Included in the definition of recklessness is that “he consciously disregards a substantial and unjustifiable risk.” An intentional act of pointing and shooting isn’t conscious disregard, but deliberate and purposeful conduct, which is the crux of the ruling. The shooter wasn’t being cavalierly incautious; he was deliberately shooting his gun toward people.

          Or, as held by the Illinois Supreme Court:

          The mental states involved in each of these offenses are mutually inconsistent. Where a determination is made that one exists, the others, to be legally consistent, must be found not to exist.

          1. Ted H.

            I think we’ll have to leave it with agreeing that the judge properly utilized Illinois law (although I’ve only read what you’ve provided), disagree (perhaps) on normative grounds. I don’t believe that the mental states (generally outlined by the MPC and used if not copied in state statutes) are mutually inconsistent in decreasing order of culpability, and if they are, it is because of poor construction of laws for varying degrees of homicide, as exemplified by the Harrison court.

            1. SHG Post author

              If it makes you feel any better, most of the time, these arguments are used by a defendant who isn’t a police officer, and under circumstances that are far more palatable than here. That’s the problem, when they happen as here for what seems to be the wrong reasons and the wrong defendant, it all sucks.

  6. Jonathan Edelstein

    So in Illinois, conduct can’t be intentional with respect to result A (killing the target) and reckless with respect to result B (killing bystanders)? Remarkable.

  7. Wrongway

    So, Where in all of this Bullshit.. does the Constitution come into play ?
    Ya know all of that crap about “Life, Liberty, blah blah..”
    Case Laws, & Precedents, & previous rulings galore have allowed many horrendous things in the past..
    Hell, any legal library is available to find verdicts justifying anything you want.. “Them ovar got dem funny lookin eyes.. lets put them in camps..”..

    If my Son, (who installs cabinets), was in his car, got into an a verbal/physical altercation, & then shot a gun over his shoulder, out of the window, because he thought ‘mean guy #1’ was reaching for ‘something’, & hit someone else in the back of the head.. How do you think he’d do in front of this Judge ??

    Fuck You, & your ‘Legal Bullshit’.. this is just plain wrong..
    1st cop prosecuted in 15yrs.. should be the first clue..
    How about throw out all that crap, & Read the bill of rights.. but no.. can’t do that..
    then the govt. & its employees would have to admit to being wrong..

    he shot a lady in the back of her head.. and walks.. thanks to the very system that employs him..

    Fuck You..

    1. SHG Post author

      Yeah, it’s hard when it works out this way. When it benefits someone you like, it’s all “woo, hoo, law!!!” When it benefits someone you don’t like, it’s all “fuck you & your legal bullshit.” You go from hating “the end justifies the means” to loving it, all based on how much you despise the defendant because of who he is and what he did. It was all.

      If you were capable of stepping back and looking hard at what you’re saying here, you would realize that this is why the system fails and wrongly convicts and executes innocent people. Innocent people die because of people who think like you.

  8. William Doriss

    Now I know why I never went to law school. My head is spinning. Don’t even know if I can stand up right now.

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  10. Myles

    Perhaps the conflicting views of you and Mark Bennett come from your respective state law background. In New York, you have hotly contested issues of mens rea based upon a fixed set of facts where, as was held in People v. Payne (your post, ok? [Ed. Note: Sigh, okay, but just this once.]), the question of whether conduct can establish a particular state of culpability is decided as a matter of law rather than as a matter of fact.

    It appears to be the same in Illinois as New York, and Texas appears not to care.

    1. SHG Post author

      That may be. Payne is an excellent example, given that New York’s murder statute can be proved by intent or depraved indifference, though prosecutors have to pick a theory and live with the outcome. This problem wouldn’t exist in Texas, if Mark is correct.

      But I’m still stuck on how an reckless, or worse yet, a criminally negligent, act can be a subset of an intentional act. I can’t quite overcome the logical inconsistency, but then, at least Texas has barbecue.

      1. Andrew

        I’m surprised that Bennett is having such a hard time with this. I thought he was a pretty smart lawyer.

        1. SHG Post author

          Bennett is a very smart lawyer. Perhaps Myles is right, that this is just a very different paradigm compared to what he’s used to in Texas. He’s so used to seeing mens rea as a gimme that he doesn’t see the inherent legal conflicts in how a given set of facts is subject to a determination as a matter of law. In NY, this is the norm. In Texas, not so much.

  11. David Pullman

    I’m sorry but your are plain wrong (and maybe should turn in your bar card?). The law professor in the Think Progress blog was totally correct. The very definition of lesser included means that all the elements of the lesser crime are committed when the greater crime is committed, necessarily and by definition. When someone intentionally kills, they are by definition both reckless and negligent as to whether they are causing danger. The greater mental state, includes all lesser states. Cases like Eason, which both you and Judge Porter erroneously cited to are not on point. They are about what instructions on lessers the defendant is entitled to when the evidence is that the act was intentional. It’s correct that the court does not have to offer the jury the opportunity to find a lesser offense, when the evidence only supports the greater mental state. That doesn’t apply in the reverse direction, as you and Judge Porter try to do. A prosecutor can ALWAYS charge a lesser, even when the evidence shows that the defendant has the mental state required for a greater offense. Brush up on this. Read the caselaw. Go back to your notes from mens rea chapter of your law school criminal law class and then correct the misinformation you are posting.

    1. SHG Post author

      This is what makes the internets so much fun. Except for this:

      Or, as held by the Illinois Supreme Court:

      The mental states involved in each of these offenses are mutually inconsistent. Where a determination is made that one exists, the others, to be legally consistent, must be found not to exist.

      Sorry to harsh your baby pedantic. You’re a lawyer where? Let me guess, not Illinois or New York? Of course, if you have an Illinois case that supports your proposition, I would love to see it and would be more than happy to correct my position, but your pontification doesn’t cut it.

      On the other hand, you may want to read this to learn about the different definitions and approaches to lesser included offenses so you don’t write simplistic comments.

      1. David Pullman

        I’ll have to concede that your case seems to support your position (and Judge Foster’s) that Illinois law is different than California where I practice and the Model Penal Code. If so, I apologize and I hereby turn in my (non-existent Illinois) bar card. The cases that Porter cited all had to do with whether a jury instruction on a lesser was warranted when the greater mental state is the only mental state supported by the evidence. That is a far cry from saying that a court can’t find a defendant guilty of a lesser crime, when the evidence shows he had a greater mental state. The Hoffer case has language that greatly supports your position, but the context is still different. Hoffer says that a jury verdict finding a person guilty of both murder and involuntary manslaughter is inconsistent because the mens reas are not the same. That can and should be true, without necessarily negating my proposition that intent is a greater mental state which includes the lesser states of recklessness and negligence. A person who is guilty of murder is guilty of manslaughter, but a person who’s guilty of manslaughter is not guilty of murder. Because a finding of guilt on manslaughter indicates a judgment that the defendant was reckless, in other words had a mental state less than intent, it cannot be reconciled with a murder conviction. However, that is not to say that a person who is guilty of murder, cannot be convicted of manslaughter. I think the judge was wrong and the law professor right, but I will concede that it is a much more debatable issue than I originally believed it to be and my tone was disproportionate to the offense of being on the other side of an issue whereupon reasonable minds could disagree. So, again my apologies. Here is the Model Penal Code on the subject 2.01(d)(5): “Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.”

        1. SHG Post author

          Apology accepted. It’s critical to remember that laws (and theories of law) differ from jurisdiction to jurisdiction. If you read the law review article to which I linked, what you’ll find is that even the concept of lesser included varies, as there are different theories of how it applies, whether strictly to element, fact based, etc. This also implicates whether double jeopardy applies, which has also been confusing.

          Your argument that the caselaw runs in the opposite direction is correct, but you drew a conclusion that is unwarranted. This case is the oddball, not the norm, so you don’t have the caselaw directly on point and instead have to draw from the existing caselaw. Given the additional caselaw about mens rea, Porter’s holding appears correct. If it arguable? Perhaps, but it’s far more clearly right than wrong. And in other jurisdictions, proof of mens rea elements aren’t interchangeable, and are often hotly contested for very good reason.

          Bear in mind that MPC (which fudges mens rea, like Texas) isn’t the law in most of the country, where it has never been accepted and is of no value in understanding the specific law in a jurisdiction. As you work around the country, you come to appreciate these differences, and come to realize that things you took for granted can’t be taken for granted. You have to look before you opine with certainty.

          And even then, it’s easy to be wrong. Law isn’t easy, clear or certain.

  12. Daniel Spiegel

    I’ve been following this thread with great interest. Thanks for the lively debate and insights.

    I have a few thoughts:

    1) I’m still very curious about the double jeopardy bar here. I don’t see how US v. Lynch, 162 F.3d 732 (2d Cir. 1998), unsettles the holding of Knapp v. Leonardo, 46 F.3d 170 (2d Cir. 1995). In Lynch, the Court says the trial court’s error was not that it made up a “separate, fifth element” of “proof of bad intent” in finding the abortion-clinic activists not guilty for lack of bad intent. Rather, the trial court erred when it defined wilfulness as requiring bad intent. The Court states that the “error of law influenced [the trial court’s] finding as to wilfulness and is integral to that element.” Thus, the Court’s opinion seems consistent with the principle that wilfullness is a discreet element for purposes of Blockburger, as held in Knapp v. Leonardo.

    I recognize that we are out in left field arguing about the 2nd circuit. Returning to Illinois, though, I think Servin is in the clear based on Illinois’s compulsory-joinder statute:

    From People v. Riley, 2012 IL App (2d) 120176-U (unpublished opinion citing published opinion of People v. Hiatt, 229 Ill. App. 3d 1094 (1992)):
    “At issue is the proper application of the compulsory joinder provisions of the Code. The joinder provisions are in sections 3-3 and 3-4 of the Code (720 ILCS 5/3-3, 3-4 (West 2010)). The rule for joinder proper is in section 3-3:
    “(a) When the same conduct of a defendant may establish the commission of more
    than one offense, the defendant may be prosecuted for each such offense.
    (b) If the several offenses are known to the proper prosecuting officer at the time of
    commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
    (c) When 2 or more offenses are charged as required by Subsection (b), the court in
    the interest of justice may order that one or more of such charges shall be tried separately.” 720 ILCS 5/3-3 (West 2010).
    The rule barring further prosecutions is in section 3-4(b)(1).
    “(b) A prosecution is barred if the defendant was formerly prosecuted for a different
    offense, or for the same offense based upon different facts, if that former prosecution:
    (1) resulted in either a conviction or an acquittal, and the subsequent prosecution is
    for an offense of which the defendant could have been convicted on the former
    prosecution; or was for an offense with which the defendant should have been
    charged on the former prosecution, as provided in Section 3-3 of this Code (unless
    the court ordered a separate trial of that charge); or was for an offense that involves
    the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial
    began[.]” (Emphases added.) 720 ILCS 5/3-4(b)(1) (West 2010).

    Summarizing the above, a prosecution is barred if three conditions are met: (1) the existence of a prior prosecution; (2) the offense charged in the current prosecution was known to the proper prosecuting officer at the time of commencing the prosecution for the prior offense; and (3) both prosecutions arise from the same act.”

    People v. Hairston, 46 Ill. 2d 348 (1970) does not affect the ultimately dispositive applicability of the compulsory-joinder statute. Hairston was really an inconsistent verdict case where after one trial, defendant (unsuccessfully) invoked double jeopardy principles in arguing that he couldn’t have been convicted of soliciting murder when he was acquitted of the murder itself. The court ruled that they were different offenses for purposes of Blockburger, and regardless, the case is inapposite to the Servin matter, where the issue is whether different mental states mean different elements for the purposes of Blockburger, not whether soliciting a murder and murder are different offenses for the purposes of Blockburger.

    It seems that the statutory bar of compulsory-joinder precludes a second state prosecution. I am not convinced that there is a constitutional bar under Blockburger, but I’m not sure if the question matters given the nature of compulsory-joinder in Illinois. Here, the three conditions outlined in Riley (citing Hiatt) clearly apply- 1) existence of prior prosection, 2) DA knew of charges in second prosecution at the time of bringing the first prosecution, and 3) both prosecutions arise from the same act.

    I’d love to be proven wrong that a second state prosecution can still be brought. But I think the only recourse lies with federal jurisdiction (see point 4 below).

    2) Other minor point- I’m not sure what the source of this fact is, but on Pg. 3 of the Judge’s order, he states that Servin had Antonio Cross “in his sights” (perhaps the source is Servin’s statement to authorities or ASA referenced further down on Pg. 3?) This would mean that his opinion was on even firmer ground than it would be if Servin was shooting over his shoulder at a crowd.

    3) The very last footnote of Judge Porter’s opinion seems to allude to a retrial. He suggests the appropriate charges for the factual pattern presented at trial: Attempted Murder (of Cross) and Aggravated Discharge of Firearm, (not to mention Murder (of Boyd)). But he was likely aware that there was no more recourse due to compulsory-joinder. Was he just scolding the DA?

    4) If the Feds were to intervene, what charges could be brought? I am no expert on this law. What about the admittedly unregistered firearm?

    1. SHG Post author

      Whew. A lot in there. As to your double jeopardy point, Blockburger (like so many doctrines) seems to ebb and flow with the case. My point with Lynch is that it’s an unreliable doctrine in the 2d Cir., and it’s a bit too aspirational to cite one case and think there is clarity. The way Blockburger has been used has been fairly fact specific, despite its reference to elements.

      The shift between elements and facts (which is actually more rhetorical than substantive) tends to be outcome driven, and there’s tons of caselaw to support either direction. But where a set of facts is proffered to prove mens rea, but is held to be precluded to prove that particular state of mind as a matter of law, it would be barred under Blockburger because of its reliance on facts to prove elements.

      Good call with the compulsory joinder. I think you’re right.

      As to the end of Porter’s opinion, I suspect he was just trying to keep the townspeople from marching on his courtroom with pitchforks by laying the blame elsewhere. And as for the feds, beats me. I don’t make charging decisions. I’m on the side of truth and justice.

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