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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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  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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