Before we get into the legalese of showing the 2nd degree murder statute is unconstitutional let me show you an example that will convince you that there really is a problem here. This example is taken from an article written by an Illinois law professor. Illinois had a similar problem with their murder and manslaughter statutes too, but they fixed theirs back in 1986. It was only in 1995 that a federal appeals court finally indicated what their problem was, but they did so only by looking at the Illinois jury instructions from before 1986. (More about that case later.)
Professor Timothy P. O'Neill teaches law at the John Marshall School of Law in Illinois. In 1983 he wrote an article entitled, "With Malice Toward None": A Solution to an Illinois Homicide Quandary. This article was published in volume 32 of the DePaul Law Review on page 107. (32 Depaul Law Review 107). Prof. O'Neill describes the problem with Illinois homicide statutes that is similar to Nebraska's. He begins the article with a tongue-in-cheek story that I have adapted for Nebraska's situation.
The scene is a bar on O Street in Lincoln on a sultry August evening in 1995. Two friends, Kane and Abel, begin to argue. Suddenly, the argument erupts into a physical altercation. After ten minutes of intense fighting, Kane strangles Abel, breaking the latter's neck. The police arrive and arrest Kane. Abel is rushed to the hospital and placed into intensive care.
After he is booked, Kane calls his lawyer. Kane asks his lawyer if he could be charged with murder since he definitely intended to kill Abel for those few minutes. His lawyer responds: "Don't worry about murder. There is no question that your actions were the result of a sudden quarrel. In Nebraska, such an action constitutes manslaughter, which is a Class III felony. If you are convicted the worst you can get is 20 years, with good-time you will be out in 10 years."
An hour later Kane's lawyer comes to visit him.
"I am afraid I have some bad news," says the lawyer.
"You mean Abel died?"
"No," says the lawyer, "the bad news is that Abel did not die."
"I don't understand," says Kane.
"If he had died, there is no question you should have been charged with manslaughter. He's alive, however, and there is no such crime as attempted manslaughter in Nebraska. You have admitted that you tried to kill Abel and that is attempted 2nd degree murder, a Class II felony which can carry up to 50 years in prison. Frankly, you made a terrible mistake by not making sure that you actually killed Abel."
Yes, as this story demonstrates, Nebraska's current homicide statutes actually promote murder. In a sudden quarrel, a defendant faces less punishment by killing his intended victim rather than just trying to. That may sound ludicrous but that is the way Nebraska law is right now. Obviously, there is a problem here and the courts and the press have not addressed this. As far as the courts and the press are concerned, if the public is ignorant of the law and this problem, then the problem doesn't exist.
Worse yet is the fact that even if Kane had killed Abel there is no guarantee he would be charged with or found guilty of just manslaughter rather than 2nd degree murder. Manslaughter is supposed to be a lesser crime of homicide than either 1st or 2nd degree murder. While it is true that manslaughter carries the lesser penalty, by the legal definition of "lesser included offense," Nebraska's 2nd degree murder is actually the "lesser" included offense of manslaughter.
The classical test to determine whether one crime is the same as another or is a lesser included offense is the Blockburger test from Blockburger v. U.S. 284 U.S. 299, 52 S.Ct. 180 (1932), and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221(1977). Two statutes define distinct crimes if each requires the proof of a fact which the other does not. But a crime is a lesser included offense of another if it does not require proof of any more facts other than those of its greater crime. As we pointed out in the Introduction, an intentional killing without premeditation proves 2nd degree murder. No other facts need to be proved for 2nd degree murder, but if you prove one more fact, that a sudden quarrel existed, then the crime is manslaughter. In Nebraska manslaughter requires the proof of the extra fact that 2nd degree murder does not. 2nd degree murder does not require proof of any facts that manslaughter (upon a sudden quarrel) does not. Therefore, manslaughter should be the greater offense and 2nd degree murder the lesser included. But it has never been treated that way in Nebraska courts; see the jury instructions in State v. Jones. That is also not the way the Legislature set up the penalties either. 2nd degree carries the greater penalty even though it is the "lesser" offense.
Notice that I said that 2nd degree murder does not require proof of any facts that manslaughter (upon a sudden quarrel) does not. I should have added, "after the Legislature removed malice in 1979." Before that change malice was the fact that the State had to prove for 2nd degree murder that wasn't needed for manslaughter. Malice is what kept 2nd degree murder the greater crime and manslaughter the lesser. Once they removed "malice" the crimes were turned upside down, so to speak. As the Nebraska Supreme Court said in State v. Grimes, , "if malice were not an element of second degree murder, the homicide statutes would not make sense."
We are saying that the 2nd degree murder statute "lacks an adequate standard of guilt sufficient to prevent the arbitrary and erratic enforcement of the statute." I put that in quotes so that people won't twist what we are saying into something else. Most commonly people try to claim that we are saying the constitution requires "malice" to be in the statute. Wrong, that is not what we are saying. The U.S. Constitution only requires that the Legislature create an adequate standard, it does not tell the Legislature which specific standard it must set. Putting "malice" back in the statute would fix it, but making a sudden quarrel an affirmative defense, like New York has done, would also fix the problem. The Constitution doesn't say which fix the Legislature must adopt. That is why we are not saying the Constitution requires "malice".
Now that you have seen there is a problem we will show you the legal argument that the 2nd degree murder statute violates the Due Process of Law guaranteed by the 5th and 14th Amendments to the U.S. Constitution and Article I, §3 of Nebraska Constitution.
There are no common law crimes in Nebraska. State v. Pettit, 233 Neb 436, 445 N.W2d 890 (1989); State v. Douglas, 222 Neb 833, 388 N.W. 2d 801 (1986); Kinnan v. State, 86 Neb 234, 125 N.W.2d 534 (1910). All penal crimes are statutory. Douglas, supra. This is an important foundation to the argument because it tells us later what remedies are available to those persons convicted under the 2nd degree murder statute. It also shows that this argument may be unique to Nebraska. Illinois, New York, and other states may have different state law requirements and this argument may not hold there.
The State's power to fix a punishment is limited by the constitutional guarantees of Due Process. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665 (1948); State v. Adkins, 196 Neb 76, 241 N.W.2d 655 (1976). Any penal statute must provide individuals with fair warning of those acts which may lead to the loss of their life or liberty. United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997); Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855 (1983); Connally v. General Const. Co., 269 U.S. 385, 46 S. Ct. 126 (1926); United States v. Reese, 92 U.S. 214 (1876). The requirement of fair warning is an awareness that Legislators, not the Courts, define criminal statutes. Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1263 (1974); State v. Douglas, supra. Simply stated, the Due Process of Law requires fair warning of what acts have been made criminal and that the Legislature defines what acts are criminal. As you can see it has been that way for well over a hundred years, 1876 to 1997.
Penal statutes must not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242 (1974); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697 (1964); State v. Metzger, 211 Neb 593, 319 N.W.2d 459 (1982) .
Penal statutes.... should not admit of such double meaning that the citizen may act upon one conception of its requirements and the court another…thereby devolving on the court the exercise of arbitrary power of discriminating between the several classes of acts.
Metzger, supra, 211 Neb at 596-7, 319 N.W.2d at 461
The more important aspect of "fair warning" or the "vagueness" doctrine is the requirement that legislatures establish minimal guidelines to govern law enforcement to prevent arbitrary, erratic, and discriminatory enforcement of the statute. Kolender v. Lawson, supra; Teter v. Scottsbluff Public Schools, 256 Neb 645, 592 N.W.2d 155 (1999). So a "vague" statute does not provide "fair warning" and thus, violates Due Process. A statute is vague if it does not have guidelines or standards sufficient to prevent the arbitrary and erratic enforcement of the statute. The Legislature has choice in creating those standards but that choice is not unlimited.
It is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decisions in this regard are not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319 (1977). Vagueness in regard to applicable tests to ascertain guilt violates the "first essential" of the Due Process of Law. Connally v. General Const. Co., supra; State v. Adkins, 196 Neb 76, 241 N.W.2d 655 (1976). Therefore, a penal statue that does not provide guidelines sufficient to prevent the arbitrary and erratic enforcement of the statute violates a fundamental (the first essential) principle of the Due Process of Law and is unconstitutional.
An unconstitutional statute is a nullity, void from its enactment, incapable of creating any rights or obligations. State ex rel. Stenberg v. Murphy, 247 Neb 358, 527 N.W.2d 185 (1995). Where the statute is void, the court lacks subject-matter jurisdiction over the crime purported to be defined by that statute. Where a court lacks subject-matter jurisdiction its judgment is absolutely void. Nebr. Dept. of Roads Emp. Assn. v. Dept. of Roads, 189 Neb 754, 205 N.W.2d 110 (1973); State v. Dvorak, 254 Neb 87, 574 N.W.2d 492 (1998) .
This is the law. We haven't talked about the 2nd degree murder statute yet, but the boundaries of the law tell us that if we can show that the statute does not contain adequate standards sufficient to prevent the arbitrary and erratic enforcement of the statute then the statute is vague and violates Due Process. Violating Due Process, the statute is void and a nullity, and any court's judgment based upon this statute is absolutely void.
You can see from that last paragraph that the argument that §28-304 is unconstitutional is fairly simple. What complicates it is the Nebraska Supreme Court's attempts to save the statute. In State v. Myers, 244 Neb 905, 510 N.W.2d 58 (1994), the Court ruled that "malice" was a necessary element of 2nd degree murder even though the statute did not specifically say that. The court went so far as to say that without "malice" in the 2nd degree murder statute, none of Nebraska's homicide statutes makes sense and would perhaps be unconstitutional. State v. Ryan, 249 Neb 218, 543 N.W.2d 128 (1996); State v. Grimes, 246 Neb 473, 519 N.W.2d 507 (1994). After much public controversy, the Court reversed itself in State v. Burlison, 255 Neb 190, 583 N.W.2d 31 (1998). After Burlison, §28-304 could not be construed as requiring "malice" as an element. The Court went further and stated that, as written by the legislature, §28-304 was "not constitutionally overbroad."
Our argument has nothing to do with overbreadth. Overbreadth is when a statute outlaws lawful or constitutionally protected acts. For example, if the legislature passed a statute that banned printing and selling newspapers on Sunday that statute would be unconstitutionally overbroad because it outlawed a constitutionally protected activity; the 1st Amendment freedom of the press. There is nothing vague about a statute that bans Sunday newspapers. Vagueness and overbreadth are different Due Process violations. So when someone tells you that the Burlison decision said the 2nd degree murder statute is not unconstitutional, you can tell them that the Burlison decision did not address the issue we are raising here.
In between Myers and Burlison the Court made another attempt to save §28-304 in State v. Jones, 245 Neb 821, 515 N.W.2d 654 (1994). In Jones they removed the element of "intent" from the crime of manslaughter, §28-305. The Jones court sought to distinguish between 2nd degree murder and manslaughter with the element of "intent". However, Jones is irrelevant to the constitutional analysis of §28-304 because: If a legislative act when enacted violates the constitution, it cannot subsequently become valid law by removal of the reason of its invalidity, without being subsequently re-enacted. Central Bank of Lincoln v. Sutherland, 113 Neb 126, 202 N.W.2d 428 (1925). "Intent" was an element of manslaughter when §28-304 was enacted. See, State v. Pettit, supra; Boche v. State, 84 Neb 845, 122 N.W. 72 (1909). Since "intent" was an element of manslaughter when §28-304 was enacted then the constitutional analysis of §28-304 must be made with "intent" as an element of manslaughter. If §28-304 was unconstitutional when enacted then it is a void statute. It cannot be made constitutional by the court's removal of "intent" from manslaughter 15 years after the fact. Only the legislature can correct §28-304 by re-enacting it.
Neb.Rev.Stat. §28-304 became effective on January 1, 1979
and defined the crime of 2nd degree murder as:
A person commits murder in the second degree if he causes the
death of a person intentionally without premeditation.
The crime carries a maximum penalty of life imprisonment. Also in 1979, §28-305 became
effective to re-enact the crime of manslaughter which was defined as:
A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or cause the death of another unintentionally while in the commission of an unlawful act.
The penalty for manslaughter is a maximum of 20 years imprisonment and a minimum of 1 year.
There are two kinds of manslaughter, notice the "or" in the statute. The first kind is killing another without malice upon a sudden quarrel. I will refer to this as "voluntary" manslaughter, not that it has anything to do with the common law crime of voluntary manslaughter. I call it that just to distinguish manslaughter upon a sudden quarrel from the unintentional-unlawful act manslaughter. Notice that both kinds of manslaughter are "without malice." The statute says, "kills another without malice either…, or…. For the rest of this article we will be referring to "voluntary" manslaughter, i.e. manslaughter upon a sudden quarrel.
The constitutional problem is that these two statutes have the effect of imposing on the jury or the court a purely arbitrary decision between a verdict of 2nd degree murder and one of "voluntary" manslaughter. By the definitions of these two crimes, a sudden quarrel that produces the intention to kill and immediately results in a killing is "voluntary" manslaughter. However, it is simultaneously and necessarily also 2nd degree murder because it is also an intentional killing without premeditation. In other words, under these statutes, it is logically impossible to commit "voluntary" manslaughter without thereby committing 2nd degree murder.
"There exists no basis in fact or law for a jury to decide which verdict to return; indeed, logically the decision cannot be made. Such a scheme makes a jury's decision whether to convict for [2nd degree] murder or [voluntary] manslaughter purely arbitrary, or worse, driven by impermissible considerations such as the defendant's race, decision to testify in his own defense, prior convictions, or other such irrelevant factors." Thomas v. Peters,
48 F.3d 1000 (7th Cir. 1995).
This is the Illinois case that I talked about earlier. The 7th Circuit Court of Appeals was discussing the language of the Illinois jury instructions, but that language is just like the language in Nebraska's statutes. Such a purely arbitrary deprivation of liberty violates Due Process. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975) .
What is lacking in Nebraska's statutes is that §28-304 does not require the State to prove something to distinguish this crime from "voluntary" manslaughter. Until the 1979 change by the Legislature, 2nd degree murder did have such a requirement because it required the State to prove "malice." In Nebraska "malice" is defined as the intentional doing of a wrongful act without just cause or excuse. State v. Ryan, 249 Neb 218, 543 N.W.2d 128 (1996). It is the "without…excuse" part of malice that required the State to prove the lack of the legislatively defined excuse of a sudden quarrel. Prior to the 1979 change the State obtained a conviction for 2nd degree murder by proving beyond a reasonable doubt that there was no sudden quarrel to make the crime manslaughter. When the jury or the court found the element of "malice" they explicitly found the killing was "without…excuse;" including the excuse of a sudden quarrel.
When the Legislature removed malice from the crime of 2nd degree murder in 1979, they removed the minimal guideline that was necessary to prevent the arbitrary and erratic enforcement of the statute. "Malice" in 2nd degree murder had prevented the arbitrary and erratic choice between the two crimes. Therefore, Neb. Rev.Stat. §28-304, 2nd degree murder, violates the first essential of the Due Process of Law and was null and void from its enactment. The state district courts had no subject-matter jurisdiction over a crime called 2nd degree murder; there is no and has been no crime of 2nd degree murder in Nebraska since January 1, 1979.
You're probably thinking that its the "sudden quarrel" that distinguishes between 2nd degree murder and voluntary manslaughter. Yes, but that is in §28-305, the manslaughter statute, not in §28-304, the 2nd degree murder statute. So what is the difference? The difference comes from the problem that 2nd degree murder is considered the greater crime, and carries the greater penalty, when in fact it is the lesser crime under the Blockburger test. A prosecutor can arbitrarily choose to or choose not to present any evidence to show that a sudden quarrel existed. Why should they? Without it they get a conviction for 2nd degree murder with the greater penalty. With that evidence they only get a conviction for manslaughter with the smaller penalty. That's what the Blockburger test for greater crimes leads to; if the State wants the conviction for the greater crime then they have to prove the extra fact that distinguishes the greater crime from the lesser.
There are a couple of reasons why this can't be done. First is the jury instructions given in these cases. The jury is told to first consider whether the defendant is guilty of 2nd degree murder. Only if they find them not guilty of 2nd degree murder are the jurors supposed to even consider the manslaughter charge. With an intentional killing without premeditation the jury can convict a defendant of 2nd degree murder even if the sudden quarrel exists. The jury can convict the defendant of 2nd degree murder even when an incorrect manslaughter instruction is given to them because the courts presume that a jury that finds a defendant guilty of 2nd degree murder never even considered the manslaughter instruction. The courts presume the jury never considered whether a sudden quarrel existed or not. See, State v. Derry, 248 Neb 260, 534 N.W.2d 302 (1995).
Second, the Constitution requires that the State bears the burden of proving every element of the crime beyond a reasonable doubt. In re Winship, 387 U.S. 358, 90 S.Ct. 1068 (1970). Because the sudden quarrel is an element of a crime the State cannot shift the burden of proving the sudden quarrel to the defendant. A defendant has a constitutional right to remain silent and force the State to prove every element of the crime they convict them of.
The defendant can't be forced to waive those rights just to get the lesser penalty from manslaughter. That would be presuming the defendant was guilty of "some" crime and forcing them to waive their right to remain silent and admit that they committed "some" crime in order to get the lesser penalty. By making them admit there was a sudden quarrel you make them admit that they did the deed. The Constitution guarantees that you can't be forced to confess to any crime; and it doesn't wear a monocle either.
The State's first excuse that §28-304 is not unconstitutional is that "intent" is the element that prevents the arbitrary choice between 2nd degree murder and manslaughter, based upon State v. Jones' decision that "intent" is not an element of manslaughter. As we pointed out before, the Jones decision cannot save §28-304 15 years after the fact, the Legislature has to re-enact it. Not only does the Jones decision not remedy the unconstitutionality of §28-304 as shown above, but applying State v. Jones to any crime that occurred before the May 6, 1994, date of the Jones decision, would violate the Due Process of Law.
If the Legislature had changed the manslaughter statute on May 6,1994, to remove the element of "intent" from manslaughter and attempted to allow this change to be applied to crimes that were committed before that date it would violate the ex post facto prohibition. "No State shall…pass any…ex post facto law." Article I, §10, U.S. Constitution. An ex post facto law is "every law that alters the legal rules of evidence and receives less, or different testimony, than the law required at the time of the commission of the offense in order to convict the offender." Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 (1990) citing Calder v. Bull, 3 U.S. 386 (1798). The ex post facto prohibition is directed at the legislature. But, if the courts create the effect of an ex post facto law by judicial interpretation, they violate the Due Process Clause. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990 (1977).
The Jones court's removal of the element of "intent" from manslaughter reduced the amount of evidence needed to get a conviction than was required at the time of the commission of the offense before Jones thus creating the effect of an ex post facto law by judicial interpretation. If the courts now try to apply Jones to anyone whose crime happened before Jones, they violate the Due Process of Law guaranteed by the 5th and 14th Amendments to the U.S. Constitution and Article I, §3 of the Nebraska Constitution.
The State might argue that a "sudden quarrel" is an affirmative defense that the defendant must prove rather than an element of the crime of manslaughter. This excuse goes against over 100 years of case law and the plain language of the statute. First, Nebraska's statute and pattern jury instructions have never called a sudden quarrel an affirmative defense. See, State v. Jones, which recites the manslaughter jury instruction.
The material elements which the state must prove by evidence beyond a reasonable doubt in order to convict the defendant of manslaughter are: … 2. That the defendant did, without malice, kill (the victim) intentionally upon a sudden quarrel; …
Second, the argument that a sudden quarrel is an affirmative defense was presented and rejected by the Nebraska Supreme Court in State v. Cave, 240 Neb 783, 484 N.W.2d 458 (1992). Third, and most importantly, the Legislature did not set a "sudden quarrel" out as an affirmative defense. The Legislature knows what an affirmative defense is and has explicitly labeled them in at least 13 Nebraska crimes: §§28-301(2), 28-203, 28-315(2), 28-503(2), 28-513(2), 28-516(3), 28-522, 28-701, 28-904(2), 28-1108, 28-1112, 28-1202(2), and 28-1416. Other states have fixed their homicide statutes by making their equivalent to a sudden quarrel an affirmative defense. However, when they have done so they have explicitly said so in their statutes. This gives defendants the fair warning that Due Process requires. See New York's homicide statutes in Patterson v. New York, 97 S.Ct. at 2321 n.2 & 3.
Therefore, a "sudden quarrel" was not, and is not, an affirmative defense in Nebraska, it is an element of the crime of manslaughter which the State can arbitrarily choose to, or choose not to prove in any given case.
In summary, we have shown that Neb. Rev.Stat. §28-304 lacks an ascertainable standard of guilt sufficient to prevent that statutes arbitrary and erratic enforcement. This renders that statute unconstitutionally vague and null and void from its enactment. Without a valid statute the state courts lack subject matter jurisdiction over the crime called 2nd degree murder. Convictions for 2nd degree murder are absolutely void and in violation of those defendant's rights guaranteed by the Due Process Clause of the 5th and 14th Amendments of the U.S. Constitution and Article I, §3 of the Nebraska
Constitution.