Should the “Duress” Defense Be Available in Cases of Extremely Reckless Homicide?
From Michigan Supreme Court Justice Bridget McCormack’s majority opinion (for four of the seven Justices) delivered Thursday in People v. Gafken:
[W]hile fleeing from police, Theresa Gafken ran a red light at speeds topping 100 miles per hour and collided with other vehicles, killing one person and causing severe injuries to several others; Gafken was also injured. The prosecution charged her with second-degree murder, and two counts of operating a vehicle while intoxicated (OWI) causing serious impairment of a body function.
Before trial, Gafken moved to allow certain testimony. Specifically, she asked to be allowed to testify that she intended to pull over when the police officer activated his overheard lights and that she didn’t do so because Michael Scandalito, who was sitting behind her, then thrust a gun into her ribs and threatened to kill her if she stopped the car. She also wanted to testify that Scandalito was on parole and being sought for a parole-violation warrant and had committed aggravated assault against his mother while in a methamphetamine rage….
The majority held that the testimony should have been admitted, and Gafken should have been able to use the duress defense based on that testimony. Here’s the heart of the short majority opinion, though there is also an interesting and much more detailed concurrence, plus three detailed dissents.
“The elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.” Malice may be established in thre
Article from Reason.com
