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.