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In this section we will compare Nebraska's 2nd degree murder statute to the one in New York as found in the U.S. Supreme Court case, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319 (1977). We will also compare the manslaughter statutes in these two states as well. Keep in mind that the New York statutes that we are reciting here may not be the ones currently in effect in New York. These New York state statutes were valid in 1977 and were determined to be constitutional by the U.S. Supreme Court in Patterson, supra. They are the standard by which we will criticize Nebraska's criminal statutes.
The reason we compare the statutes from these two states is that the Attorney General's office claims that Nebraska's 2nd degree murder statute does not violate the constitution because the Patterson court "upheld the federal constitutional validity 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 see in this comparison it isn't the lack of malice that is significant here, even though both statutes do lack malice as an element of the crime. We consider §28-304 as it is written, without requiring malice.
The thing that jumps right out of the New York statute is that language: "it is an affirmative defense that the defendant acted under the influence of extreme emotional disturbance...." New York's 2nd degree murder statute explains what the difference between it and manslaughter is and how a defendant goes about preparing his defense to the charge of 2nd degree murder. New York's statute gives a defendant fair warning of how to present that defense and it prevents New York prosecutors from arbitrarily obtaining convictions for 2nd degree murder where the crime is only manslaughter. Nebraska's statute doesn't do that at all.
What is similar between the two state's crimes is the way they define an "excuse" for 2nd degree murder. In New York the excuse is called an extreme emotional disturbance. In Nebraska the excuse is called a sudden quarrel. In general this excuse between 2nd degree murder and manslaughter is often called "heat of passion." In Nebraska's statutes this excuse is only found in the manslaughter statute.
In Nebraska a sudden quarrel is an element of the crime of manslaughter and not an affirmative defense. That means that the State has the burden of proving beyond a reasonable doubt that the sudden quarrel took place in order to get a conviction for manslaughter. The State cannot shift the burden of proving an element 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 sudden quarrel an affirmative defense but also when the prosecution starts by charging a defendant with manslaughter (rather than 2nd degree murder) the prosecution doesn't need to prove that extreme emotional disturbance. Unlike Nebraska it is not an element of that 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 it to the defendant. The Patterson Court said that Legislatures can define crimes this way but that they must not violate the fundamental principles of Due Process. This is where Nebraska's statute fails.
In New York both 2nd degree murder and manslaughter (in the 1st degree) have the same elements for the prosecution to prove: "With intent to cause the death of another person, he cause the death of such person or of a third person." This is the same for both New York crimes. But the prosecution cannot arbitrarily choose to get a conviction for 2nd degree murder because the defendant can defend against that charge without having to waive any of their constitutional rights.
That is not the case in Nebraska. A sudden quarrel is not a defense that the defendant can prove. In fact a defendant has a constitutional right to make the State prove that sudden quarrel if the State wants to convict them of manslaughter. But why would the State want to risk proving the sudden quarrel when they can get a conviction for 2nd degree murder without it? Obviously, the State wouldn't take such a risk when it doesn't need to.
What happens in Nebraska is that the defendant is arbitrarily charged with either 2nd degree murder or manslaughter based on the whims of the prosecutor. The 2nd degree murder statute does not prevent prosecutors from seeking, and getting, 2nd degree murder convictions when the crime is actually only manslaughter. Once charged with 2nd degree murder if a defendant wants to claim that they are actually only guilty of manslaughter then the defendant is forced to waive his Winship right and try to prove the element of a sudden quarrel themselves. That is unconstitutional by itself, but even then there is no guarantee that the jury will consider that evidence because Nebraska's manslaughter jury instruction tells the jury that the State has the burden of proving the sudden quarrel. A deliberating jury could reject the defendant's evidence of a sudden quarrel because it wasn't something the State proved. See, State v. Jones, 245 Neb 821, 827, 515 N.W.2d 654, 657 (1994), to see Nebraska's 2nd degree and manslaughter jury instructions.
So not only does the 2nd degree murder statute not prevent the State's prosecutors from arbitrarily choosing between 2nd degree murder and manslaughter upon a sudden quarrel, it also doesn't prevent juries from making that same arbitrary choice.
Just because one State's 2nd degree-murder statute was determined to be constitutional without malice as an element does not lead to the conclusion that every other 2nd degree murder statute without malice as an element meets the requirements of the Due Process Clause of the 5th and 14th Amendments to the U.S. Constitution. New York's and Nebraska's 2nd degree murder statutes are very different when it comes to providing fair warning of how to defend against the charge. These two statutes are also different in assigning the burden of proving that the crime actually committed was the crime charged and not the lesser crime. In Nebraska that burden is placed upon the State, in New York it is placed upon the defendant. Because Nebraska's 2nd degree murder statute does not prevent the State from arbitrarily choosing not to prove that difference §28-304 does not prevent the arbitrary enforcement of that statute. That is what makes §28-304 unconstitutional in Nebraska.