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In this section we will compare Nebraska's 2nd degree murderstatute to the one in New York as found in the U.S. Supreme Courtcase, Patterson v. New York, 432 U.S. 197, 97 S.Ct.2319 (1977). We will also compare the manslaughter statutes inthese two states as well. Keep in mind that the New York statutesthat we are reciting here may not be the ones currently in effectin New York. These New York state statutes were valid in 1977 andwere determined to be constitutional by the U.S. Supreme Court inPatterson, supra. They are the standard by which we willcriticize Nebraska's criminal statutes.
The reason we compare the statutes from these two states isthat the Attorney General's office claims that Nebraska's 2nddegree murder statute does not violate the constitution becausethe Patterson court "upheld the federal constitutionalvalidity of New York's malice-less murder statute." The A.G.seems stuck on the issue in the Myers-Burlison decisions;i.e. whether malice is or isn't in §28-304. As you will seein this comparison it isn't the lack of malice that issignificant here, even though both statutes do lack malice as anelement of the crime. We consider §28-304 as it is written,without requiring malice.
Section 125:25: A person is guilty of murder in the seconddegree when:
1. With intent to cause the death of another person, he causesthe death of such person or of a third person; except in anyprosecution under this subdivision, it is an affirmative defensethat:
(a) The defendant acted under the influence of extreme emotionaldisturbance for which there was a reasonable explanation orexcuse, the reasonableness of which is to be determined from theviewpoint of a person in the defendant's situation under thecircumstances as the defendant believed them to be. Nothingcontained in this paragraph shall constitute a defense to aprosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
The thing that jumps right out of the New York statute is thatlanguage: "it is an affirmative defense that the defendant actedunder the influence of extreme emotional disturbance...." NewYork's 2nd degree murder statute explains what the differencebetween it and manslaughter is and how a defendant goes aboutpreparing his defense to the charge of 2nd degree murder. NewYork's statute gives a defendant fair warning of how to presentthat defense and it prevents New York prosecutors fromarbitrarily obtaining convictions for 2nd degree murder where thecrime is only manslaughter. Nebraska's statute doesn't do that atall.
What is similar between the two state's crimes is the way theydefine an "excuse" for 2nd degree murder. In New York the excuseis called an extreme emotional disturbance. In Nebraska theexcuse is called a sudden quarrel. In general this excuse between2nd degree murder and manslaughter is often called "heat ofpassion." In Nebraska's statutes this excuse is only found in themanslaughter statute.
In Nebraska a sudden quarrel is an element of the crime ofmanslaughter and not an affirmative defense. That means that theState has the burden of proving beyond a reasonable doubt thatthe sudden quarrel took place in order to get a conviction formanslaughter. The State cannot shift the burden of proving anelement of a crime to the defendant. In re Winship,397 U.S. 358, 90 S.Ct. 1068 (1970).
Note that in New York not only is the equivalent of a suddenquarrel an affirmative defense but also when the prosecution starts by charging a defendant with manslaughter (rather than 2nddegree murder) the prosecution doesn't need to prove that extremeemotional disturbance. Unlike Nebraska it is not an element ofthat crime. That was the big question that was asked in Patterson v. New York; can you make this "heat of passion"excuse an affirmative defense and shift the burden of proving itto the defendant. The Patterson Court said thatLegislatures can define crimes this way but that they must notviolate the fundamental principles of Due Process. This is whereNebraska's statute fails.
In New York both 2nd degree murder and manslaughter (in the1st degree) have the same elements for the prosecution to prove:"With intent to cause the death of another person, he cause thedeath of such person or of a third person." This is the same forboth New York crimes. But the prosecution cannot arbitrarilychoose to get a conviction for 2nd degree murder because thedefendant can defend against that charge without having to waiveany of their constitutional rights.
That is not the case in Nebraska. A sudden quarrel is not adefense that the defendant can prove. In fact a defendant has aconstitutional right to make the State prove that sudden quarrelif the State wants to convict them of manslaughter. But why wouldthe State want to risk proving the sudden quarrel when they canget a conviction for 2nd degree murder without it? Obviously, theState wouldn't take such a risk when it doesn't need to.
What happens in Nebraska is that the defendant is arbitrarilycharged with either 2nd degree murder or manslaughter based onthe whims of the prosecutor. The 2nd degree murder statute doesnot prevent prosecutors from seeking, and getting, 2nd degreemurder convictions when the crime is actually only manslaughter.Once charged with 2nd degree murder if a defendant wants to claimthat they are actually only guilty of manslaughter then thedefendant is forced to waive his Winship right and try to provethe element of a sudden quarrel themselves. That isunconstitutional by itself, but even then there is no guaranteethat the jury will consider that evidence because Nebraska'smanslaughter jury instruction tells the jury that the State hasthe burden of proving the sudden quarrel. A deliberating jurycould reject the defendant's evidence of a sudden quarrel becauseit wasn't something the State proved. See, State v.Jones, 245 Neb 821, 827, 515 N.W.2d 654, 657 (1994), tosee Nebraska's 2nd degree and manslaughter jury instructions.
So not only does the 2nd degree murder statute not prevent theState's prosecutors from arbitrarily choosing between 2nd degreemurder and manslaughter upon a sudden quarrel, it also doesn'tprevent juries from making that same arbitrary choice.
Just because one State's 2nd degree-murder statute wasdetermined to be constitutional without malice as an element doesnot lead to the conclusion that every other 2nd degree murderstatute without malice as an element meets the requirements ofthe Due Process Clause of the 5th and 14th Amendments to the U.S.Constitution. New York's and Nebraska's 2nd degree murderstatutes are very different when it comes to providing fairwarning of how to defend against the charge. These two statutesare also different in assigning the burden of proving that thecrime actually committed was the crime charged and not the lessercrime. In Nebraska that burden is placed upon the State, in NewYork it is placed upon the defendant. Because Nebraska's 2nddegree murder statute does not prevent the State from arbitrarilychoosing not to prove that difference §28-304 does notprevent the arbitrary enforcement of that statute. That is whatmakes §28-304 unconstitutional in Nebraska.