Note: When I wrote the following post, I assumed, wrongly, that there was a jury trial. I was careless and presumptive with a fact, for which I was wrong and have no excuse. It was not critical to what I wanted to write about, but that does not explain my error. I leave this post up as a reminder that I can be just as wrong as anyone else, and that it would and should have been very easy to get it right in the first place, and I failed to do so. I apologize for my error.
Convicted after a trial by jury, and as reprehensible as her conduct was, Michelle Carter was now a killer.
Ms. Carter’s conduct was morally reprehensible. But — at least until today’s ruling — it was clearly legal. While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law.
Robby Soave goes on to raise the dreaded problem that seems to force its way into so many things lately.
Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger.
But then, the jury isn’t where such issues of law are hashed out. Michelle Carter never stood a chance before a jury, because what she did in encouraging, cajoling, pushing her boyfriend, Conrad Roy, to suicide was awful. Jurors are people. No normal person could not find her actions awful. She was doomed.
But we didn’t figure this out when the jury returned its verdict. This was made clear from the outset.
The Supreme Court, for good or ill, has found certain categories of expression to fall outside of First Amendment protection. Among these categorical exceptions is speech that aims to incite “imminent lawless action.” Under Brandenburg v. Ohio, you can’t run around urging folks to commit crimes and expect the government to give you a pass.
So, if Michelle Carter had used her words to incite her boyfriend to murder a third-party, then she’d have a big problem on her hands. However, since suicide is not unlawful in Massachusetts, it’s the Commonwealth that appears to have the problem. If what Michelle Carter incited was imminent lawful — albeit awful — action, what justifies criminalizing her speech?
But the time to invoke law, the First Amendment, wasn’t at trial. That’s where the judge’s job as gatekeeper comes into play. That’s when the motion to dismiss is decided.
Carter was charged as a juvenile with involuntary manslaughter, which in Massachusetts is defined as a death resulting from “wanton or reckless conduct” on the part of the defendant. “Wanton or reckless conduct” is further defined as “intentional conduct . . . involv[ing] a high degree of likelihood that substantial harm will result to another.” The significance of this case is that this is the first time that the Massachusetts Supreme Court has considered whether words alone (meaning, Carter’s texts and phone calls alone) is enough to establish criminal liability.
The Court held that it did. It based its decision in part on two prior cases. In the first one, Commonwealth v. Atencio, a defendant was convicted of involuntary manslaughter after a game of Russian roulette, in which another participant died. The second, Commonwealth v. Perasampieri, was a case where a husband taunted his wife into shooting herself during an argument, after having loaded the gun and handing it to her, knowing his wife had a history of suicide attempts.
People say and do horrible things. It’s often hard to imagine, particularly when they do so in the heat of the moment or under psychological impairment. Most people wonder, “how could anyone do this?” That’s a fine question when sipping wine afterward, but for the law, it’s not the relevant inquiry. We ask whether this horrible thing is a crime. We ask whether this horrible thing is, despite its awfulness, protected by the Constitution. It’s not because we don’t recognize it as horrible, but because we recognize the law and Constitution as mattering more than the one-off tragedy.
The Court held instead that:
The circumstances of the situation dictate whether the conduct is or is not wanton or reckless. We need not — and indeed cannot — define where on the spectrum between speech and physical acts involuntary manslaughter must fall. Instead, the inquiry must be made on a case-by-case basis.
One of the bugaboos of the legal system are judges “legislating from the bench.” 99% of the time, that’s a stupid criticism. In this case, the Court was confronted with a unique set of circumstances that it had never seen before: a person urging suicide on another despite not being physically present or even in the same town.
Judge Lawrence Moniz denied the motion to dismiss. He decided that this peculiar set of facts, compelling him to “define where on the spectrum between speech and physical acts involuntary manslaughter must fall,” would move forward to a jury. Whether Judge Moniz fully appreciated the First Amendment constraints is unclear. Holdings such as “inquiry must be made on a case-by-case basis” don’t sound, per se, unreasonable, but they are when it comes to the Constitution. Legal questions are for judges to decide, not juries.
But it sounded good. And Carter’s conduct was sufficiently awful that few people wouldn’t applaud the judge’s ruling. And Judge Moniz had to realize that she would be convicted, as the emotional appeal of the prosecution’s case against her was overwhelming.
The conviction comes as no surprise. What’s unfortunate is that Judge Moniz’s ruling as to dismissal won’t be reviewed until after she’s been convicted. And then, by a mid-level state appellate court. And there may well be further appeals, if discretionary review is granted. This could drag on for many years before reaching its ultimate conclusion.
At some point in time, way down the road, there will be a decision about whether Michelle Carter’s conduct was protected speech or involuntary manslaughter. That she was found guilty by a jury, however, comes as no surprise at all. People do horrible things all the time.