criminal-law
What crime did Walter White commit against Jane in Breaking Bad?
<p>In an episode of the famous series Breaking Bad, the main character, Walter White, is responsible for the death of Jane, the girlfriend of Jesse. The main question is, from a legal point of view, how much is he responsible for this? Is this a homicide? What kind?</p>

<p>Here's a summary of what happened; you can find a video <a href="https://www.youtube.com/watch?v=RGEmFpitjYw" rel="noreferrer">here</a>. Walter and Jesse are partners and they make drugs. Jane is the girlfriend of Jesse and Walter doesn't like that, since he thinks she could be an obstacle to their business. Both Jane and Jesse have problems with drugs.</p>

<p>One day Walter enters Jesse's house, where Jesse and Jane are in the bed together, on their sides, completely stoned, unable to wake up, and apparently sleeping. Walter tries to wake up Jesse shaking him strongly without success. Doing that he modified slightly the position of Jessie and a conseguence (since she was in a sort of hug with him) Jane. In particular now she is on her back. It is not clear if she had a pillow on her back to avoid this position. Some time before, Jesse had explained to Walter that in this situation the pillow is important, since it keeps you on your side and not in your back, so if you vomit you avoid choking to death. And this is exactly what happens. In the new sleeping position, Jane starts to vomit and cough, while still sleeping. At first Walter tries to react, running to the other side of the bed to help her, but then he stops and decides to do nothing as she dies.</p>

<p>What is this? Homicide? Voluntary? Or just failure to assist a person in danger? Are there extenuating circumstances due to the fact that the actual cause of death is the drug?</p>

<p>Take into account that Walter could have easily saved her with no risk.</p>

<p>He is probably guilty of negligent homicide or involuntary manslaughter, at most (a minor felony), and is possibly not guilty of a crime at all.</p>

<p>The primary distinction between classes of homicide is <em>mens rea</em> (i.e. intent).</p>

<p>The only affirmative act he took was to move the pillow. He did so both without intending to or knowing that he would kill Jane (the intent necessary for murder), and also, without clear actual knowledge that he would be creating a risk that Jane would die (a reckless state of mind that would support a conviction for manslaughter).</p>

<p>Also, note that Walter himself, at this time, is not engaged in a felony, so he is not guilty of felony murder. We can presume he is present with the consent previously given of the owner of the property and did not mean anyone any harm. Likewise, this is not what is meant by "extreme indifference" for purposes of a murder statute, the paradigm of which is shooting randomly into a crowd knowing that someone will almost certainly be killed without knowing or intending that any particular person will die.</p>

<p>The mental state necessary for negligent homicide is the equivalent of "gross negligence" in a civil case and is called "criminal negligence" in a criminal case. To be criminally negligent a person must fail to perceive a substantial and unjustifiable risk that a certain result will occur, and the risk must be of such a nature that the defendant's failure to perceive it constitutes a gross deviation from a reasonable person's standard of care.  If a jury found that a reasonable person ought should clearly know that moving a pillow put Jane at risk of dying, then he might be guilty of criminal negligence. But, if a jury found that a reasonable person would not know that moving the pillow put Jane at grave risk of death, his action would not be criminally negligent.</p>

<p>There are also at least three questions of causation which is not entirely independent of the question of negligence.</p>

<ol>
<li><p>First, generally an act is only considered a cause of a consequence if it is a foreseeable result of the action. If Jane's vomit caused death is not a foreseeable result of moving the pillow, then her death might not be legally caused by moving the pillow. </p></li>
<li><p>Second, how likely is it that she would have died even if Walter had never entered the room. There are lots of ways that the pillow could have been jostled during the night leading to the same result. If it likely would have happened anyway, Walter's involvement might not be the legal cause of the death.</p></li>
<li><p>Third, how much fault should be attributed to Jane? This is closely related to the second question. If her death was primarily caused by her getting dangerously high and placing herself in a vulnerable position, perhaps Walter's involvement is not a meaningful cause of the death.</p></li>
</ol>

<p>A New Mexico court has held that the defense that the victim was negligent has value only if it establishes that the victim's negligence was the sole cause of the accident. <em>State v. Maddox</em>, 99 N.M. 490, 660 P.2d 132 (Ct. App. 1983). But, what about Jesse's negligence? Under a relevant standard criminal jury instruction in New Mexico:</p>

<blockquote>
  <p>The State must prove beyond a reasonable doubt that the defendant's
  act was a significant cause of the death of __________________ (name
  of victim). Evidence has been presented that the negligence of a
  person other than the defendant may have contributed to the cause of
  death. Such contributing negligence does not relieve the defendant of
  responsibility for an act that significantly contributed to the cause
  of the death so long as the death was a foreseeable result of the
  defendant's actions. However, if you find the negligence of a person
  other than the defendant was the only significant cause of death, then
  the defendant is not guilty of the offense of __________________ (name
  of offense).</p>
</blockquote>

<p>Caveat: A number of states impose strict criminal liability on drug dealers, often for murder, if someone died from using a drug sold by them, but often it has to be a child, and often the drug has to be the proximate cause of death, e.g. due to an overdose or impurity in the drug. I would presume that Jesse and not Walter supplied the drugs to Jane, that Jane is an adult, and it is not obvious that the drug itself (as opposed to the vomiting due to the manner in which the drugs were used) was the proximate cause of death, so a statute like this might not apply in any case.</p>

<p>This brings us to the hard part of the question:</p>

<blockquote>
  <p>Without the pillow Jane rotates on her back and starts to vomit and
  cough, still sleeping. At first Walter tries to react, running to the
  other side of the bed to help her, but then he stops and decides to do
  nothing as she dies.</p>
</blockquote>

<p>Note that if Walter had moved the pillow without knowing that he was creating a risk, left the room ignorant, and then this happened, surely Walter would have no legal liability for Jane's death.</p>

<p>If Walter develops the necessary intent for criminal liability, this probably doesn't happen until he observes that she is starting to choke on her vomit and might die. Even then, he does not intend for Jane to die and probably doesn't even know for certain that she will die from his inaction, so he is probably, at most reckless, if he has a duty to rescue for criminal law purposes.</p>

<p>Generally, under both civil and criminal law, there is no duty to rescue, even if you can do so without any risk of harm to yourself. </p>

<p>But, there is an exception, at least in civil liability, for a duty to rescue that arises from the fact that you put the person at risk of peril through your affirmative actions. </p>

<p>Does this apply here, at all, or in a criminal case?</p>

<p>The first question is the exact language of the homicide statute. Some homicide offenses require affirmative acts, while others can arise from acts or omissions where there is a legal duty to act.</p>

<p>Every crime requires some voluntary act or omission, and the voluntary act itself was not a crime and perhaps was not even a tort, at the moment it was taken, because Walter did not realize that his act created a risk of harm. He create a peril, but he did so innocently.</p>

<p>A pretty standard formulation is that an omission is <a href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1896&amp;context=californialawreview" rel="nofollow noreferrer">only a crime when the law creates a legal duty to act</a>, but this is, of course, a question begging standard as it doesn't clarify whether there is a legal duty to act, which is at issue here. As the previous link notes, creation of a peril can give rise to a legal duty to act, but only sometimes.</p>

<blockquote>
  <p>(4) Duty arising from creation of peril. If a person acts culpably to
  imperil another, he or she has a legal duty to rescue the victim.
  The cases are split on whether a duty to rescue arises if someone
  innocently or accidentally imperils another.</p>
</blockquote>

<p>This case would fall in the category of someone who innocently or accidentally imperils another, in which the cases are split, which which the linked article cites the following authority:</p>

<blockquote>
  <p><em>Compare Commonwealth v. Cali</em>, 247 Mass. 20, 24-25, 141 N.E. 510, 511
  (1923) (defendant under duty to try to extinguish a fire that he
  accidentally set to his house and thus was guilty of arson when he did
  not) with <em>King v. Commonwealth</em>, 285 Ky. 654, 659, 148 S.W.2d 1044,
  1047 (1941) (defendant who, in lawful defense of a third person, shot
  and wounded an attacker was under no duty to seek medical attention
  for the wounded assailant).</p>
</blockquote>

<p>A commentary that is part of <a href="https://www.justia.com/criminal/docs/calcrim/500/582.html" rel="nofollow noreferrer">a California standard jury instruction</a> (for involuntary manslaughter, not murder for which this kind of liability is presumably not available) makes the following observation:</p>

<blockquote>
  <p>A legal duty to act may also exist where the defendant's behavior
  created or substantially increased the risk of harm to the victim,
  either by creating the dangerous situation or by preventing others
  from rendering aid. (People v. Oliver (1989) 210 Cal.App.3d 138,
  147-148 [258 Cal.Rptr. 138] [defendant had duty to act where she drove
  victim to her home knowing he was drunk, knowingly allowed him to use
  her bathroom to ingest additional drugs, and watched him collapse on
  the floor]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24
  Cal.App.4th 446, 456 [30 Cal.Rptr.2d 681] [defendant had duty to
  prevent horses from running onto adjacent freeway creating risk].)</p>
</blockquote>

<p>These examples would suggest that an innocently or accidentally created risk is sufficient to create a duty sufficient to support involuntary manslaughter liability for an omission under California law, and would probably lead to involuntary manslaughter liability in the case in the question as well, under California law.</p>

<p>New Mexico, unlike California, does not have a standard criminal jury instruction or really definitive section of its criminal code that clearly resolves this question, although the fact that California which uses a murder, voluntary manslaughter, and involuntary manslaughter distinction in the same way that New Mexico does, limits criminal liability for omissions to involuntary manslaughter suggests that New Mexico would as well.</p>

<p>The New Mexico case <em>State v. Greenwood</em>, 2012 -NMCA- 017, 271 P.3d 753 (N.M. App. 2011), touches on the issue, suggesting that there may be liability only for involuntary manslaughter (or certain specialized crimes based upon a relationship such as that of a nursing home to a resident of a nursing home) based upon an omission, and that the liability for an omission can only arise when there is a legal duty, but almost implies that only contactual duties are sufficient. It does so at paragraph 35 which says:</p>

<blockquote>
  <p>Importantly, even if the LINKS contract relating to Jared were to have
  been renewed and to have been in force at the time of Jared's death,
  we are not convinced that it would be the sole basis or even a
  controlling factor in determining Defendant's legal responsibility
  under the Act. Defendant's criminal liability must exist solely based
  on an omission— a failure to act when she had a legal responsibility
  to act. See Deborah A. Goodall, Penal Code Section 22.04: A Duty to
  Care for the Elderly, 35 Baylor L.Rev. 589, 594 (1983) (stating that "
  authorities have long agreed that before an omission can constitute an
  offense[,] there must first be a duty to act" ); see also People v.
  Beardsley, 150 Mich. 206, 113 N.W. 1128, 1129 (1907) (" The law
  recognizes that under some circumstances the omission of a duty owed
  by one individual to another, where such omission results in the death
  of the one to whom the duty is owing, will make the other chargeable
  with manslaughter. This rule of law is always based upon the
  proposition that the duty neglected must be a legal duty, and not a
  mere moral obligation. It must be a duty imposed by law or by
  contract, and the omission to perform the duty must be the immediate
  and direct cause of death." (citation omitted)).</p>
</blockquote>

<p>But, this could be dicta because it was a case where any legal duty would arise under contract rather than for another reason, and as is the case in many smaller states, there is simply no case that has ever been decided in New Mexico which is squarely on point.</p>

<p>Under British criminal law, <a href="https://en.wikipedia.org/wiki/Omission_(law)#Duty_to_act_when_the_defendant_has_created_the_danger" rel="nofollow noreferrer">in similar circumstances</a>, a homicide conviction was vacated: </p>

<blockquote>
  <p>R v Khan &amp; Khan (1998) CLR 830, confirmed that there is no separate
  category of manslaughter by omission unless the omission constitutes a
  breach of duty to act. The defendants supplied a 15-year-old
  prostitute with twice the amount of heroin likely to be taken by a
  regular user. The defendants left her unconscious in the flat,
  returning the next day to find that she had died of the overdose. Had
  medical assistance been called, the girl would probably not have died.
  The unlawful act was supplying the drug but the death was caused by
  the quantity injected by the victim. The trial judge invited jury to
  consider liability on the basis of the defendants' failure to summon
  medical assistance. On appeal, the conviction was quashed because the
  brothers had not accepted a duty to act before she took the heroin.</p>
</blockquote>

<p>A dissertation on when criminal liability is imposed for omissions in Scottish law can be found <a href="http://theses.gla.ac.uk/3877/1/2012dunbarLLM.pdf" rel="nofollow noreferrer">here</a>. </p>

<p>New Mexico, whose laws really should govern, has just two homicide statutes:</p>

<blockquote>
  <p>§ 30-2-1. Murder</p>
  
  <p>A.    Murder in the first degree is the killing of one human being by
  another without lawful justification or excuse, by any of the means
  with which death may be caused: (1)   by any kind of willful, deliberate
  and premeditated killing; (2) in the commission of or attempt to
  commit any felony; or (3) by any act greatly dangerous to the lives of
  others, indicating a depraved mind regardless of human life. Whoever
  commits murder in the first degree is guilty of a capital felony.</p>
  
  <p>B.    Unless he is acting upon sufficient provocation, upon a sudden
  quarrel or in the heat of passion, a person who kills another human
  being without lawful justification or excuse commits murder in the
  second degree if in performing the acts which cause the death he knows
  that such acts create a strong probability of death or great bodily
  harm to that individual or another. Murder in the second degree is a
  lesser included offense of the crime of murder in the first degree.</p>
  
  <p>Whoever commits murder in the second degree is guilty of a second
  degree felony resulting in the death of a human being.</p>
</blockquote>

<p>Walter doesn't qualify for any of these prongs of the statute.</p>

<blockquote>
  <p>§ 30-2-3. Manslaughter</p>
  
  <p>Manslaughter is the unlawful killing of a human being without malice.</p>
  
  <p>A.    Voluntary manslaughter consists of manslaughter committed upon a
  sudden quarrel or in the heat of passion.</p>
  
  <p>Whoever commits voluntary manslaughter is guilty of a third degree
  felony resulting in the death of a human being.</p>
  
  <p>B.    Involuntary manslaughter consists of manslaughter committed in the
  commission of an unlawful act not amounting to felony, or in the
  commission of a lawful act which might produce death in an unlawful
  manner or without due caution and circumspection.</p>
  
  <p>Whoever commits involuntary manslaughter is guilty of a fourth degree
  felony.</p>
</blockquote>

<p>Clearly, Walter also does not qualify as guilty of voluntary manslaughter. There is no quarrel or heat of passion.</p>

<p>So, either Walter is guilty in New Mexico of involuntary manslaughter, or he is not guilty of homicide at all.</p>

<p>New Mexico also has an unusual, and rather merciful "excusable homicide" provision at New Mexico Statutes § 30-2-5, that should also be considered:</p>

<blockquote>
  <p>Homicide is excusable in the following cases:</p>
  
  <p>A.    when committed by accident or misfortune in doing any lawful act,
  by lawful means, with usual and ordinary caution and without any
  unlawful intent; or</p>
  
  <p>B.    when committed by accident or misfortune in the heat of passion,
  upon any sudden and sufficient provocation, or upon a sudden combat,
  if no undue advantage is taken, nor any dangerous weapon used and the
  killing is not done in a cruel or unusual manner.</p>
</blockquote>

<p>Arguably, Walter falls under "excusable homicide" part A, as moving the pillow was a lawful act done without unlawful intent and that is what caused the death.</p>

<p>Before dealing with criminal matters, he committed a tort by failing to discharge his <a href="https://en.wikipedia.org/wiki/Duty_to_rescue" rel="nofollow noreferrer">duty to rescue</a> - having created the hazardous situation he was legally obliged to attempt to rescue Jesse.</p>
<p>Notwithstanding, he is quite likely guilty of <a href="http://law.justia.com/codes/new-mexico/2011/chapter30/article2/section30-2-1" rel="nofollow noreferrer">Murder</a>:</p>
<blockquote>
<p><strong>30-2-1. Murder.</strong></p>
<p>A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused:</p>
<p>(1) by any kind of willful, deliberate and premeditated killing;</p>
<p>(2) in the commission of or attempt to commit any felony; or</p>
<p>(3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.</p>
<p>Whoever commits murder in the first degree is guilty of a capital felony.</p>
<p>B. Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.</p>
<p>Murder in the second degree is a lesser included offense of the crime of murder in the first degree.</p>
<p>Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being.</p>
</blockquote>
<p>Second-degree murder is almost certain: &quot;in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual&quot;. He knew or should have known that removing the support would do this. Notwithstanding, even if he had forgotten this, the fact that she began to choke while he was still present would make conviction almost certain.</p>
<p>There is a strong possibility of a first degree conviction too under any or all of sub-clauses. For 1, even though the killing was opportunistic, that doesn't mean that it was not premeditated. For 2, this was in the context of a criminal enterprise which was committing multiple felonies. For 3, a conscious decision to allow her to die after committing the act seems to indicate &quot;a depraved mind regardless of human life&quot;.</p>
