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Judge’s opinion keeps colleague in suspense

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7th Circuit Court of Appeals Judge Richard Posner had a fellow judge on the edge of his seat Thursday waiting to see how the opinion in a murder case would be decided. The court upheld a prisoner’s conviction of first-degree murder of the prisoner’s cellmate.

Daniel Delaney strangled his cellmate after finding out he was a convicted child molester. He had been in the cell with the man for a couple weeks before he beat him and strangled him. He originally told an FBI agent that he attacked the man “after some thought,” but Delaney later testified at trial that he had been sexually abused as a child and snapped after learning his cellmate was a child molester.

Delaney argued that the jury should have found that he killed in “the heat of passion” and therefore convicted him of only voluntary manslaughter.

In United States of America v. Daniel L. Delaney, 12-2849, Posner delved into the jury instructions given in this case for first-degree murder and manslaughter, and he noted the “archaic language” in the federal statutory provisions, such as “aforethought.”

“That such terms should appear in modern statutes and jury instructions … testifies to the legal profession’s linguistic conservatism,” he wrote. “And sometimes linguistic ineptitude.”

What is said to distinguish killing in the heat of passion from murder is absence of malice. The judge instructed the jury that it should convict Delaney of voluntary manslaughter if it found he killed “intentionally but without malice and in the heat of passion.”

“This is puzzling, because ‘malice aforethought’ in the statute means intent and so what does it mean to say that a person did something intentionally but without malice?” Posner pondered.

Ultimately, Delaney’s argument that the jury should have found he acted in the heat of passion failed because there was considerable evidence of forethought, much of it from his own statements admitting his cellmate “had to” be killed and he attacked the man “after some thought.”

Posner ended the opinion suggesting that “heat of passion” shouldn’t be thought a defense, as the “defense” just puts the government to its proof.

Judge William Bauer concurred, writing, “I have to admit that this opinion had me in suspense until the last minute. I’m not sure it provides a clear trail for future prosecutions but I sign on because the result is in keeping with the evidence.”

The panel on the case also included Judge John Tinder.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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