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Michael Brelo, camel's backs and Scalia's perverse incentive

Saturday morning northeast Ohio came to a standstill to watch judge John O’Donnell’s live reading of his verdict in the Michael Brelo trial. (Background here.). I’ve uploaded an OCR copy of the verdict here if you’d like to read it for yourself. I was fairly astonished at this portion (pp. 20-1):

Despite not being convinced of which shot it was, I have found beyond a reasonable doubt that Brelo fired a shot that by itself would have caused Russell’s death. But proof of voluntary manslaughter requires a finding, beyond a reasonable doubt, either that his shot alone actually caused the death or that it was the “straw that broke the camel’s back,” to use Justice Scalia’s locution, combined with other non-lethal wounds. Dr. Wiens opined that each of the four wounds was fatal if suffered alone and she described all of them as antemortem, i.e. pre-death….In other words, any one of the four caused the death, and not necessarily the first to hit Russell, since the time from injury to cessation of life varied depending on the wound.

Ultimately, Dr. Wiens could not offer an opinion on which antemortem wound caused death first, leaving me as the finder of fact to guess at which of the four undoubtedly deadly bullets caused the “cessation of life.” Guessing and being convinced beyond a reasonable doubt are incompatible. Brelo’s deadly shot would have caused the cessation of life if none of the other three were fired, but they were and that fact precludes finding beyond a reasonable doubt that Russell would have lived “but for” Brelo’s single lethal shot.

Because three unequivocally fatal wounds were caused by one, two or three other people besides Brelo, and because I am unable to find beyond a reasonable doubt which shot caused the cessation of Russell’s life, I find on count one, the voluntary manslaughter of Timothy Russell, that the essential element of causation has not been proved beyond a reasonable doubt.

Not being a legal scholar, I had been unaware of this particular bit of jurisprudence. From a layman’s point of view, I would have thought the law would take the opposite position: that if multiple people fired fatal shots, each one of them would be liable for the death. If they all fired shots just prior to death and the law only considers it manslaughter if and only if a single person fired a fatal shot, then the sensible response is for everyone to empty their clips. Doing so increases the odds of more than one person firing fatally, in which case everyone gets acquitted.

It also makes it sensible for everyone to make sure they are armed to the teeth, and to fire all of their bullets in response as well. Timothy Russell and Malissa Williams were unarmed. But once you know the law’s stance on fatal shots, it only makes sense to pack as much heat as you can and use every last bit of it in order to give yourself a fighting chance. That’s particularly true if a car backfiring or police officer firing will be taken as reasonable belief that the suspects themselves are armed and firing. While that kind of shooting gallery might be the NRA’s wet dream, I don’t think most people would regard it as very desirable.

Endorsing such a wild state of affairs means, then, that O’Donnell’s approach to the verdict was not a strictly legal one - it was political as well. He chose an arch-conservative judge to buttress his reasoning. While that is perfectly legitimate - he was citing a Supreme Court justice and not a shouting head from Fox News - it certainly gives an indication where his sympathies lie. He could have instead looked to a centrist or liberal. Given how Scalia’s logic inevitably led to such a curious outcome in this case, he also could have cited it in order to specifically reject it. New case law gets created precisely by challenging precedent. Perhaps Scalia did not anticipate his reasoning leading to the kind of outcome the Brelo trial ended with, and he may have been willing to revisit it.

O’Donnell chose not to do any of that, though. He took the quote and treated it as binding. Which again: that’s legitimate. But it’s also something that one does when one agrees with the reasoning - and that in turn is an expression of one’s political position. O’Donnell didn’t make his ruling in a vacuum, and it wasn’t the result of a detached and objective review. Like all decisions, it reflects his biases and predispositions. It was made in a context, and that is how we should understand it. If, having done so, some observers conclude there’s a thumb on the scales of justice, well, it would be hard to blame them.

Reader Comments (2)

This event that O'Donnell's been asked to judge took place on video, on TV, on a screen.

Why be so upset about "death"? This is a game, a fiction. Russell and Williams are stunt people. The camera moves on. The players brush themselves off, get out of the car, and won't be seen again as victims until the next replay of the scene.

The great sage, Donald Rumsfeld, almost nailed it:

"There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know."

And things we don't want to know.

May 30, 2015 | Unregistered CommenterPW

Yeah PW, it seems like some of these judges don't anticipate (or maybe they do!) the real world consequences of their decisions.

May 31, 2015 | Registered CommenterDan

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