[conspire] (forw) Re: [Evals] Hans Reiser found guilty

[Rick Moen]

----- Forwarded message from Rick Moen <rick at linuxmafia.com> -----

Date: Mon, 28 Apr 2008 19:58:42 -0700
From: Rick Moen <rick at linuxmafia.com>
To: evals at lists.merlins.org
Subject: Re: [Evals] Hans Reiser found guilty

Quoting Brian Chrisman (brian at permitsoft.com):

> I'm guessing that considering the planning and cover-up that would've 
> been required, 1st degree would have been the only charge that would 
> have merited a guilty verdict? 

Hmm, not sure I exactly follow.  In states where there's a division
between voluntary manslaughter (sometimes called 3rd degree murder), 2nd
degree murder, and 1st degree murder, the latter is by a country mile
set up to be the most difficult charge to prove.  Califonia has this
escalating scale of charges:

o  involuntary manslaughter:  Either death through criminal negligence
   but without proof of intent to kill, or a killing committed during
   the commission of another crime.

o  voluntary manslaughter:  intentional wrongful killing, but following
   after "adequate provocation"; something happened that would incite an
   "ordinary person" to "sudden and intense passion" such that s/he loses
   self control, without opportunity to cool off.

o  second-degree murder:  intentional wrongful killing, but with
   premeditated malice before the act (defined as intent to kill or 
   to inflict bodily injury), but without characteristics noted below
   for first-degree.  (Penal Code section 187-189 covers all of these
   things.  See link, below.)

o  first-degree murder:  intentional wrongful killing with
   premeditated malice before the act, but _also_ where the weapon
   was an explosive or "destructive device" (per Penal Code section
   12301[1]), knowing use of armour-piercing ammo, or involving poison, 
   or involving lying in wait, or murder involving firearms used from 
   a motor vehicle towards people outside the vehicle (drive-bys), or 
   torture, or any other kid of willful, deliberate, and premeditated 
   killing.  Also, intentional wrongful killings committed while committing 
   or attempting arson, rape, carjacking, robbery, burglary, mayhem, 
   kidnapping, train wrecking, or involving sadistic torture (section 206), 
   or sodomy (section 286), or child sexual abuse (section 288/288a), or 
   non-consensual violent sex (section 289). 
   
o  first-degree murder with special circumstances:  murder of particular 
   types considered heinous enough as to merit execution or life 
   imprisonment without the possibility of parole:  murder for financial
   gain, murder for more than one count of 1st- or 2nd-degree murder in
   one trial, murder by someone who's previously been convicted of a 
   1st- or 2nd-degree murder, murder by explosive or "destructive device"
   that the murderer knew or should have known would probably kill
   someone, murder to prevent or avoid a lawful arrest or carry out or 
   assist an escape from lawful custody, murder of a peace officer who
   was carrying out duties and who the murderer knew or should have 
   known was that, or murder of a former peace officer killed in
   retaliation for carrying out duties, or murder of a Federal law
   enforcement officer, ditto, or murder of a former Federal
   officer/agent in retaliation, ditto, or murder of a firefighter,
   ditto, or murder of a witness in a criminal trial or juvenile
   proceeding, or murder of a current or former prosecutor / assistant 
   prosecutor, or murder of a current/former judge, or murder of
   a government official in retaliation for official duties, or 
   an especially heinous / atrocious / cruel / depraved murder, or
   one motivated by victim's race, religioun, nationality, or country 
   of origin.

There's of course a bunch more provisions.  Whole enchilada:
http://caselaw.lp.findlaw.com/cacodes/pen/187-199.html
Among the things I'm skipping in a forlorn attempt at brevity is 
the separate concept of vehicular manslaughter, which fits somewhere in
there, too.

I've also done some paraphrasing and word-substitution to cut through
some of the jargon, so either read the Penal Code directly or live with
my summary's unavoidable inaccuracies.


> It's not like something this clean, if 
> it happened, would've happened in the heat of the moment...

Yes, the jury screwed up shockingly -- or had some reasons to conclude
premeditation that we're missing.  I'm still choking on the notion of 
proof beyond a reasonable doubt of _any_ crime, though.

> Maybe if he gets a new trial, he'll listen to his lawyer and not testify...

No real chance of a new trial, unless Reiser can get the appeals court
to throw out the entire thing.  I think.  And he's broke.


[1] Various more-exotic and arguably cooler military toys.  See:
http://caselaw.lp.findlaw.com/cacodes/pen/12301-12316.html

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