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The Range
Law & Order
Judge Recuses Herself from Ersland's Trial
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<blockquote data-quote="Dr. Tad Hussein Winslow" data-source="post: 1271774" data-attributes="member: 7123"><p>Well that's very true. But in that case, it's still most certaintly <em><strong>Attempted</strong></em> murder, because the defendant didn't KNOW that the first bullet was mortal. </p><p></p><p>Don't get me wrong. If *I* was on the jury, and if I really believed that Ersland, in his own little mind, actually was still in a fearful state - that he somehow believed subjectively, even if wholly unreasonable, that the guy on the the ground was a threat to kill or harm him or his co-workers, then I'd vote not guilty of both murder and attempted murder. But that vote would not be correct under the law; but rather a form of nulllification; the law says it has to be a *reasonable* apprehension of fear, in addition to actual subjective fear. No way that it's reasonable that a guy who (a) doesn't even HAVE ANY visible weapon, and (b) is on the ground motionless, is a threat. Really, either (a) or (b) - either one would be enough to remove the reasonableness, but with both - he's very very potentially-liable for attempted murder, for the last 5 shots. </p><p></p><p>If there was a lesser-included in the instruction for me, such as "assualt deadly weapon", and if I believed he really had a true high state of actual subjective (but unreasonable) fear, then I'd vote for the lesser-included as guilty, but not attempted murder, even though attempted murder is probably the 'correct' outcome.</p><p></p><p>BUT, then again, attempted murder requires MORE THAN just unreasonbleness of action, in terms of intent - it requires a <em>specific intent </em>to kill!! So the DA has a high burden on that specific intent if they cannot prove that Ersland was NOT just so nutty (enough) that he didn't think he was really going to cause death by pumping 5 more rounds in. I think the vast majority of jurors would vote guilty of attempted murder (correctly so), even if the expert that says the 1st round was mortal is completely unrebutted. But as for me personally, I'd do a little nullifcation and let him walk on any serious charge, just because I'd view him as doing something which *I* think he has a natural right to do, given the facts and circumstances here - if he's actually very fearful that the guy has a hidden weapon and is about to get up at any moment. Not legally correct - just tellin ya what I'd probably do. Now if I believed that Ersland was NOT actually still quite fearful that the 2nd guy was gonna up and get him, then I'd vote for (a) guilty murder if I believed the first shot was not fatal, or (b) guilty attempted murder if I believed the first shot was fatal. You can't just let people go around executing kids in retribution for a robbery when they're not in fear of life and limb. If he didn't take the stand himself to explain and express that subjective fear, he'd be going a way for a long time if I'm the sole juror.</p><p></p><p>The first shot was CLEARLY justifiable self-defense to my mind. I think we all agree on that, as would everyone in the state except the kid's mom.</p><p></p><p>YMMV. <img src="/images/smilies/smile.png" class="smilie" loading="lazy" alt=":)" title="Smile :)" data-shortname=":)" /></p></blockquote><p></p>
[QUOTE="Dr. Tad Hussein Winslow, post: 1271774, member: 7123"] Well that's very true. But in that case, it's still most certaintly [I][B]Attempted[/B][/I] murder, because the defendant didn't KNOW that the first bullet was mortal. Don't get me wrong. If *I* was on the jury, and if I really believed that Ersland, in his own little mind, actually was still in a fearful state - that he somehow believed subjectively, even if wholly unreasonable, that the guy on the the ground was a threat to kill or harm him or his co-workers, then I'd vote not guilty of both murder and attempted murder. But that vote would not be correct under the law; but rather a form of nulllification; the law says it has to be a *reasonable* apprehension of fear, in addition to actual subjective fear. No way that it's reasonable that a guy who (a) doesn't even HAVE ANY visible weapon, and (b) is on the ground motionless, is a threat. Really, either (a) or (b) - either one would be enough to remove the reasonableness, but with both - he's very very potentially-liable for attempted murder, for the last 5 shots. If there was a lesser-included in the instruction for me, such as "assualt deadly weapon", and if I believed he really had a true high state of actual subjective (but unreasonable) fear, then I'd vote for the lesser-included as guilty, but not attempted murder, even though attempted murder is probably the 'correct' outcome. BUT, then again, attempted murder requires MORE THAN just unreasonbleness of action, in terms of intent - it requires a [I]specific intent [/I]to kill!! So the DA has a high burden on that specific intent if they cannot prove that Ersland was NOT just so nutty (enough) that he didn't think he was really going to cause death by pumping 5 more rounds in. I think the vast majority of jurors would vote guilty of attempted murder (correctly so), even if the expert that says the 1st round was mortal is completely unrebutted. But as for me personally, I'd do a little nullifcation and let him walk on any serious charge, just because I'd view him as doing something which *I* think he has a natural right to do, given the facts and circumstances here - if he's actually very fearful that the guy has a hidden weapon and is about to get up at any moment. Not legally correct - just tellin ya what I'd probably do. Now if I believed that Ersland was NOT actually still quite fearful that the 2nd guy was gonna up and get him, then I'd vote for (a) guilty murder if I believed the first shot was not fatal, or (b) guilty attempted murder if I believed the first shot was fatal. You can't just let people go around executing kids in retribution for a robbery when they're not in fear of life and limb. If he didn't take the stand himself to explain and express that subjective fear, he'd be going a way for a long time if I'm the sole juror. The first shot was CLEARLY justifiable self-defense to my mind. I think we all agree on that, as would everyone in the state except the kid's mom. YMMV. :) [/QUOTE]
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