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HIST 3850
Patrick J Connor

dfHIST 3850 FINAL EXAM REVIEW: Types of Homicide: 1. Felony Murder - Murder after 1945:  Homicide Rates: General Trends: o Before Industrialization: rates are high o Homicide declines in 19 century o Why?- Twin effects of industrialization, centralized control, reform movement o Internal regulation o Early 20 century continues to decline o 1960S increases until 1980s then begins period of decline  Measuring Homicide Rates o Homicides per 100,00 of population o Problems o Inconsistent records o Age structure also influences homicide rates o Baby boomers: born between 1946-1962  Homicide Rates in England: o England as an example of trends o Had been somewhere between 20 to 30 per 100,000 in 1300 o 1860: 1.44 per 100,000 o 1900: 0.87 per 100,000 o 1930: 0.45 per 100,000 o 1960: 0.62 per 100,000 o 1990 1.32 per 100,000  Canada o Only statistics from the 1920s o Reach a peak in 1930 at around 2.0 per 100,000 and then decline o Steady ride from 1944-1965  Who kills? Canada 1961-90 o Lovers, spouses, kin: 17% o Parents and children: 5% o Other family members : 17% o Other Acquaintances: 33% o Rest: unsolved  Why do Men Kill: o Social and psychological explanations: focus is on the individual and sees the individual as responsible for their actions o Structural explanations: focus is on society as responsible for homicide  R v. Perrault 1948: o Culpable homicide is also murder in each of the following cases whether the offender means or not death to ensue or know or not that death is likely to ensue”- commits grievous bodily harm in commission of an offense o Donald Perrault 1948: drives the getaway car  R v. Vaillancourt 1987 Supreme Court of Canada o Two men enter a pool room but Vaillancourt asks his partner for the shotgun’s shells o Partner kills man but escapes; Vaillancourt caught and given life sentence even though he had not committed the murder  The United States: The Enmund Case o April 1975, Armstrongs kill the Kerseys in rural Florida o Earl Enmund is driving the car o Convicted of first degree murder and sentenced to death o Overturned at U.S Supreme Court as intent not proven  The Tison Case: Arizona v. Tison, 1987: o Gary Tison and Randy Greenawalt serving life sentences o Three sons assist their escape o Lyons family kidnapped o Man/woman/ 2 year old son/ 15 year old niece o Sons leave the Lyons in father’s custody and walk back to the car o Did they have an intent to kill the Lyons?  Summary: o In case of Vaillancourt and Enmund, prosecution had not proved intent o In case of the Tisons, their actions had been reckless in providing guns, knew that their father had previously killed, and left the Lyons in father’s and Greenawalt’s custody 2. Homicide committed by a women who are abused and claim self defense 3. Serial murderers 4. Euthanasia 5. Capital Punishment Issues and Themes: 1. Self- Defence/battered women syndrome 2. Felony Murder 3. Police Conduct- - Police coercion: Ronald Sears in Canada but also Stephen Truscott (1959) - Limiting police actions: Miranda v. Arizona (1966) 4. Moral Panic - The role of newspapers Sears, Truscott 5. Assisted Suicide 6. Expansion of Civil Rights in US (criminal procedures) 7. Wrongful convictions Defense Strategies 1. Felony murder- do not form an intent 2. A women who is abused- is acting in self-defence 3. Euthanasia- dividing line between assisted killing and hospital practices is unclear 4. Capital Punishment- imposition of death penalty is unfair Trends  Since 1945, decline in homicide rates but in United States rates have remained high in comparison th to rest of industrialized world why?  In early 20 century, both Canada and the United States are more violent than today, yet in Canada, trajectory is different Changes in Defining the Law of Homicide 1. Felony murder: the unlawful killing committed while in commission of a felony - Canada  Perrault (1948)- getaway driver, convicted upheld  Vallaincourt (1987)- believed accomplice’s gun was unloaded; overturned - United States  Enmund (1982) – Kersey killings; drove getaway car; overturned  Tison (1987) – helped father escape; family killed; upheld  In case of Vallancourt and Enmund, prosecution had not proved intent  In case of the Tisons, their actions had been reckless in providing guns, knew that their father had previously killed, and left the Lyons in father’s and Greenawalt’s custody Self Defence (Battered Women Syndrome)  Canada- stages of battered women syndrome - Whynot (1985)- NS SC- overturned lower court`s acquittal (jury found self-defence killing Stafford)  Ruled assault must be underway “no person has the right in anticipation of an assault that may or may not happen to apply force to prevent the imaginary assault” - Lavalle (1990) – shot Rust in the back of the head  Acquitted at trial on self-defence grounds; overturned by Manitoba Court of Appeals  SCC rules in her favour  Expert evidence necess ;kmhary (battered wife syndrome)  Importance of gender in considering “reasonable man” - Mallot (1998)  Appeal of Ontario Court of Appeal ruling which upheld conviction for 2 degree murder  SCC dismissed appeal o Importance of Lavallee to Mallot: o Experts: why would a women stay in such a relationship o History of abuse o Danger need not be imminent o Expert will help explain why woman believe that only way to protect herself from death or grievous bodily hard was to assault her partner o Restrictive definition of a battered women should not be imposed Expansion of Civil Rights in the 1960s 1. Powell v. Alabama (1936)- right to counsel of indigent defendants in capital cases 2. Betts v. Brady (1942) – rejected blanket right to counsel in Criminal trials; test= fundamental fairness/”totality of facts” 3. Giedon v. Wainwright (1963) – right to counsel in all criminal cases 4. Escobedo v. Illinois (1964)- right to counsel during police interrogations 5. Miranda v. Arizona (1966)- must be advised of rights to silence, attorney; requires explicit waiver of rights th - 14 Amendment: Guarantees “due process” - 6 Amendment: Guarantees an attorney - 5 Amendment: Guarantees right not to be forced to act as a witness against yourself (against “self-incrimination”) Euthanasia  Focus on Lethal Judgements  Ouinlan (1976)- ventilator, NJ SC rules in favour of family based largely on right to privacy - Issues include personal autonomy, surrogate decision making, state interest in preserving life, conflict between medical technician and human values, liability of doctors and hospitals - Court laid down balancing test of state v. individual interest- state interest weakens an individual right to privacy grows as degree of bodily intervention increases as prognosis dims  Cruzon (USSC 1990) – Difference from Quinlon- Curzon could survive on his own without respirator, feeding tube was the issue - MSC- ruled that could have right to die, based on autonomy rather than privacy, but needed clear evidence that was an individual’s wish, which ruled was not present in the case - USSC- Decision recognized for the first time at this level a right to die, grounded in self- determination as confirmed in the Due Process Clause, but Missouri did not violate constitution by establishing clear (if rigorous) test of whether person was choosing death themselves  Conclusion: clear line developing- `competent patients and lawful surrogates for incompetents who can show some evidence to support their interpretation of the patient`s supposed wishes, may request the termination of medical treatment, even if that termination will result in their death`  USSC’s 1997- twin cases of Washington v. Gluckman and Vacco v. Quill - Gluckman- petitioner argued right to die/ suicide based on liberty interest (due process th clause of 14 amendment) agreed by Washington appeals court - Vacco- argued right based on equal protection clause of 14 amendment; New York appeals court agree - USSC finds no right to die- not a right “deeply rooted in the nation’s history” state has legit interest in protecting life, mentally ill, disabled, financially dependent from pressure or abuse could lead to a slippery slope  Sue Rodriquez- right to assisted suicide as equality  Robert Latimer- Euthanasia—surrogate decision making Preventing Homicide: Capital Punishment R. V. Vaillancourt (1987): (felony murder)  A landmark case from the Supreme Court of Canada on the constitutionality of criminal code offence of “constructive murder”  The Court ruled that crimes with significant stigma attached, such as culpable homicide and constructive murder require proof of the mens rea (guilty mind) element of subjective foresight of death.  Yvan Vaillancourt and a friend planned to rob a local pool hall - Before the robbery they had agreed to only use knives - However when his friend showed up for the robbery with a gun, V made him take the bullets out and place them in his glove - Immediately after the robbery took place V saw his friend go back into the hall where a fight broke out between his friend/customer - In the struggle the customer was shot/ later died of his wounds (with his friends gun) - V was caught by police but his accomplice got away - V charged with culpable homicide because he was considered an accomplice by operation  a person using a weapon resulting in death while committing a robbery was guilty of murder, regardless of whether death was intended or of knowledge that death was likely to occur - V argued that it was a principle of fundamental justice, that no accused should be liable for an offense without showing some degree of subjective mens rea  The court looked at the elements of the offences as well as the punishment that accompanies it  Punishment for murder was an automatic life sentence which produced a stigma upon the offender  The moral blameworthiness of the accused must be proportional to the punishment; thus there must be proof beyond a reasonable doubt of subjective foresight The United States: The Enmund Case (1982) (felony murder)  The U.S Supreme Court case was a 5-4 decision which the USSC applied its capital proportionality principle to set aside the death penalty for the driver of a getaway car in a robbery-murder of an elderly Florida couple - While Earl Enmund sat outside in the getaway car, his accomplices Sampson and Jeanette Armstrong rang the doorbell of Thomas and Enuice Kersey who lived in a farmhouse in central Florida - When Thomas answered, Samson Armstrong held him at gunpoint while Jeanette took his money - Eunice came out with a gun and shot Jeanette wounding her, Sampson shot back and killed the couple - The Armstrongs took all of the Kersey’s money and went back to the getaway car which Enmund was driving - Enmund and the Armstrongs were indicted for first-degree murder and robbery - The judge instructed the jury that under Florida law, killing a human being while engaging in the perpetration or in the attempt to perpetrate a robbery is first-degree murder - The Armstrongs were both convicted of first-degree murder - At a separate penalty hearing, the trial judge found that the murders were committed for a pecuniary gain, and were especially heinous, atrocious, or cruel and that no statutory mitigating factors applied, and then sentenced Enmund to death - On appeal, Florida Supreme Court rejected Enmund’s content that his death sentence was inappropriate because he did not kill or intend to kill the Kerseys- holding that ‘felony murder rule and the law of principals combined to make a felon generally responsible for the lethal acts of his co-felon’ th th  Justice White (opinion/question)- was whether death is a valid penalty under the 8 and 14 Amendments for one wo neither took life, attempted to take life, nor intended to take life  The majority found that the record did not support finding that Enmund killed or attempted to kill the Kerseys, nor does the record support a finding that Enmund intended to participate in the killing or facilitate it  Accordingly, the Court held the imposition of a sentence of death upon Enmund was prohibited by the 8 Amendment because Enmund only aided and abetted a felony in the course of which a murder is committed by others, but who does not himself kill, attempt to kill, or intent that a killing take place or that lethal force will be employed  Justice Brennan- delivered a concurring opinion, stating that he holds that the death penalty is a cruel and unusual punishment prohibited by the 8 Amendment in all circumstances Tison v. Arizona (1987): (felony murder)  Is United States Supreme Court case in which the Court qualified the rule it set forth in (Enmund v. Florida)  Just as Enmund, the Tison Court applied the proportionately principle to conclude that the death penalty was an appropriate punishment for a felony murderer who was a major participant in the underlying felony and exhibited reckless indifference to human life  This case stems from an infamous prison break during the summer of 1978 Gary Tison was serving a life sentence at the Arizona State Prison for killing a prison guard his songs plotted to break him and his cellmate Randy Greenawalt out of prison  (July 30, 1978) the sons entered the prison for a visit, taking advantage of a policy that allowed an informal picnic setting for weekend family visits, carrying an ice chest packed with revolvers and sawed off shotguns at a lobby guard  Greenawalt helped in the escape by cutting off telephones and alarm systems  They escaped in Donald Tisons car, but the next day one of the tires blew-out- and a family on their way drove by, but their bodies were found dead five days later the eldest Tison son/ Greenawalt killed the family (Lyonses) whereas the other two arrived afterwards  A shootout occurred when they drove passed a roadblock, and Donald Tison (the driver) was killed at the scene where the others fled on foot  Raymond, Ricky, and Greenawalt were caught but Gary Tison escaped into the desert- but later died of exposure in the desert  Greenawalt and the surviving Tisons were charged with 92 crimes, including four counts of murder  The two remaining Tison brothers were tried individually for capital murder in the deaths of the Lyonses  The murder charges predicated on Arizona’s felony-murder statute- which provided that killings that occurred during a robbery or kidnapping were first-degree = death-eligible murder  The Tison brothers were convicted- at separate sentence hearings, three aggravating factors were proved  the Tisons had created a grave risk of death to others, the murders were committed for pecuniary gain, and the murders were especially heinous, cruel and depaved  The Arizona Supreme Court upheld the death sentences  Then the SC decided Enmund, the Tison brothers brought a collateral attack on their sentences claiming Enmund required the death sentences to be struck down  The ASC rejected this argument, asserting that the dictates of Enmund had been satisfied because the intent requirement of Enmund could be inferred from the fact tht death was a foreseeable result of participating in a dangerous felony  Justice O’Connor, - concluded that the death penalty would be appropriate for a murder like the ones the Tisons had been convicted of if it could be shown that the defendant was a major participant in the underlying felony and had acted with reckless indifference to human life  Later the death penalties for Ricky and Raymond Tison were reduced to life sentences because they were both under 20 at the time of the crime and Greenawalt was executed by lethal injection in 1997  Issue. Does the Eighth Amendment of the United States Constitution (Constitution) prohibit the death penalty where the defendant participated substantially in the crime, but whose mental state is one of reckless indifference to the value of human life, rather than a mental state reflecting an intent to kill?  Held. No. The Petitioners aided in bringing an arsenal of lethal weapons to a prison in order to arm two convicted murderers for the purpose of escaping. The Petitioner Raymond Tison performed the role of flagging down the victims, robbed the victims and guarded them at gunpoint. He then watched the killing without making an effort to assist the victims. The Petitioner Ricky Tison’s behavior was substantially the same. This conduct evidences a substantial participation in the crime and a reckless disregard for the value of human life. “*T+he reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.”  Dissent. Justice William Brennan (J. Brennan), with whom Justice Thurgood Marshall (J. Marshall), Justice Harry Blackmun (J. Blackmun), and Justice John Paul Stevens (J. Stevens) join, dissents. J. Brennan points out that intent should be irrelevant here since the petitioners did not commit an act that killed anyone. Rather, the majority focuses on their mental state with regard to acts done by others.  Discussion. While the Supreme Court of the United States (Supreme Court) did not set forth a standard for what types of conduct and mental states warrant the imposition of the death penalty, on the facts at issue, major participation in the felony committed, coupled with a reckless disregard for the value of human life, demonstrates sufficient culpability for the imposition of the death penalty The Slasher Killings by Patrick Brode (case of Ronald Sears)  Time period Windsor, Petty crime and drunkenness and sex trade= common, but city for years enjoyed a low-murder rate  1945 “The Slasher” appeared, in the space of 2 summer weeks, three men were stabbed or beaten to death, and a fourth sent to the hospital with near fatal wounds   Jack the Ripper style killer- sadist of the worst type, a maniac  In the absence of television and other media competition, Windsor’s prominent Star newspaper held a local monopoly on the news= they fuelled a growing sense of panic in their captive audience, The Slasher was a creator of “senseless blood-lust…with a perverted smile”  Initially there were a lack of suspects  Police seemed to agree with the Star’s editorials suggesting the killer dwelled among the riff-raff that congregate in certain undesirable sections of the community the force obligingly made a show of diligence by rounding up 125 homeless men and rooming-house residence  The murders= gruesome – the Star fed public fears with sensational crime-scene photos, then printed a story falsely claiming that sex crimes were precipitously on the rise  Then a hairdresser called the cops= the Slasher’s targets were all ‘sex men’ (homosexuals)  Victims= moved within the world of gay ‘sex perverts’  A year after the third killing= two more men were similarly attacked but survived tot ell their stories, along with more evidence from the earlier cases, confirmed that the victims were gay men  A suspect was identified- Ronald Sears- was arrested at his mothers house  After some innocuous statements during interrogation, he went into confession mode, describing three of the murders all similar in pattern = “we lay down in the weeds together and he unfastened his pants and began to jack me off. I told him to roll over on his stomach and I was going to put my cock up his rectum… I had a hunting knife… and raised it as far as I could and had it poised to bring down where I thought his heart would be”  Predictably Sear’s arrest and the lurid details leaked to the press= and brought a new surge of moral panic  Community leaders urged mass detentions of all recognized ‘perverts’  One of the surviving victims found himself charged and convicted for committing sex acts preceded his stabbing which he shared with the cops to help convict Sears  Ronald Sears= a deeply troubled young man, sexually ambivalent young man who described being sexually abused at age nine  He was sentenced to hang in December 1947, but a court of appeal quashed the conviction stating the only evidence against sears was his own confession, but it wasn’t given ‘voluntarily’ and that confession in itself was reached after ‘callous and heartless treatment’  The decision came down about the middle of November- about three weeks before Sears was due to hang  Although acquitted- he wasn’t released from ail  He still faced charges for another murder and three attempted murders- in one of those attempts Sears buried an ice pix between the shoulder blades of his victim  In May 1947, Sears was convicted of attempted murder and sentenced to 12 years in prison, he was shipped off to Kingston but in 1956 he died in a mental institution  After a seven-hour interrogation - without food, family contact, or let up - Sears confessed. His motivation: revenge for adult homosexual seduction at age nine. Sears now faced the death penalty. He was convicted. The Ontario Court of Appeals deemed otherwise.  Five judges reviewed his case, finding that Sears's "confession" was not voluntary, adding "this is not British justice." Wrote Time magazine, "Last week, just 14 days before he was to have been executed, the court unanimously voided Sears's conviction. It was the same thing as acquittal, at least on the Price murder charge. Sears might still be charged with the other murder, or the stabbings, if the police thought that they could salvage admissible evidence. Stephen Truscott: (wrongful convictions)  A Canadian man who was sentenced to death in 1959 when he was a 14-year old student for the murder of classmate Lynne Harper  His death sentence was commuted to life imprisonment, and he continued to maintain his innocence until 2007 when his conviction was declared a miscarriage of justice and he was formally acquitted of the crime th  He was scheduled to be hanged on Dec 8 , 1959, however a temporary reprieve on Nov 20 1959 postponed his execution to Feb 16 1960, to allow for an appeal- On Jan 22 1960, his death sentenced was commuted to life imprisonment  On Aug 28 2007- after review of nearly 250 fresh pieces of evidence, the court declared that Truscott’s conviction had been a miscarriage of justice- 2008= the govt of Ontario awarded him 6.5 million in compensation o June 9 1959- 12 year-old Lynne Harper disappeared, two days later was found raped and strangled with her own blouse o Truscott and Harper were classmates in a combined grades 7/8 class at the Air Vice Marshal Hugh Campbell School located on the north side of the Air Force base. In the early evening of Tuesday, June 9, 1959, Truscott gave Harper a ride on the crossbar of his bicycle and they proceeded from the vicinity of the school northwards along the County Road. The timing and duration of their encounter, and what happened while they were together, have been contentious issues since 1959. o Truscott has maintained since 1959 that he took Harper to the intersection of the County Road and Highway 8, where he left her unharmed. Truscott maintains that when he arrived at the bridge, he looked back toward the intersection where he had dropped Harper off and observed that a vehicle had stopped and that she was in the process of entering it. At 11:20 that evening, Lynne's father reported her missing o June 12, Truscott was taken into custody= he was charged with first degree murder under the provisions of the Juvenile Delinquents Act o On June 30= Truscott was ordered to be tried as an adult= an appeal on that order was dismissed o Sept 16= Trial began in the Supreme Court of Ontario- before justice Ferguson/jury o Frank Donnelly= Truscott’s lawyer o Glen Hays= Crown/Prosecution o Evidence presented= circumstantial o Sept 30= jury/ verdict of guilty with a recommendation of mercy o Sentenced to be hanged= Sept 30 o Jan 21, 1960= Truscott’s appeal to the Court of Appeal for Ontario- dismissed o Government of Canada= commuted Truscott’s sentence to life imprisonment o 1967, May 4: New forensic evidence was presented on his behalf, and Truscott testified before the Supreme Court of Canada, telling his story for the first time. Truscott and 25 other witnesses testified before the Court. After a two week hearing before the Supreme Court, Canada’s top judges ruled 8-1 against Truscott getting a new trial, and he was returned to prison to serve the remainder of his sentence. The Supreme Court stated that “There were many incredibilities inherent in the evidence given by Truscott before us and we do not believe his testimony.” o The joint opinion of Canada’s Supreme Court Justices was: “The verdict of the jury, read in the light of the charge of the trial judge, makes it clear that they were satisfied beyond a reasonable doubt that the facts, which they found to be established by the evidence which they accepted, were not only consistent with the guilt of Truscott but were inconsistent with any rational conclusion other than that Steven Truscott was the guilty person. o Truscott maintained a low profile until 2000, when an interview on CBC Television's The Fifth Estate revived interest in his case. Together with a subsequent book by journalist Julian Sher, they suggested that significant evidence in favour of Truscott's innocence had been ignored in the original trial o On April 6, 2006, the body of Lynne Harper was exhumed by order of the Attorney General of Ontario, in order to test for DNA evidence. There was hope that this would bring some closure to the case, but no usable DNA was recovered from the remains. o Also, Karen Daum told police in 1959 that she was looking for turtles in a river when she saw Truscott ride over a bridge on his bicycle, corroborating two other boys who were attacked as liars at the trial. Their statements all supported Truscott's version of events. Daum was not called as a witness in 1959. o Truscott's conviction was brought to the Court of Appeal for Ontario on June 19, 2006. The five judge panel, headed by Ontario Chief Justice Roy McMurtry and including Justice Michael Moldaver, heard three weeks of testimony and fresh evidence. On January 31, 2007, the Court of Appeal for Ontario began hearing arguments from Truscott's defence in the appeal of Truscott's conviction. Arguments were heard by the court over a period of 10 days, concluding February 10. In addition to the notoriety of the case itself, the hearing is also notable for being the first time that cameras were allowed into a hearing of the Court of Appeal for Ontario. o R. V. Smithers: (manslaughter)  Is a leading Supreme Court of Canada decision determining criminal causation in an offense of manslaughter  The Court held that the Crown must show that the accused’s acts were a “contributing cause of death outside of the de minimis range” (minimal) o Feb 18, 1973, Smithers= (a black teen) played in a hockey match against a team including Barrie Cobby (a white teen) o During the game, Smithers was subject to numerous racial slurs by Co
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