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Murder or Manslaughter? Criminal Defense, California Law, and Sentencing Issues

Posted by Dmitry Gorin | Aug 28, 2007 | 0 Comments

To be found guilty of the crime of murder requires that the accused have an intent to kill the deceased. The intent may be express (Defendant stating "I am going to kill her" and then pointing the gun at the victim's face), or implied (as in high-risk conduct by a Defendant in a police pursuit causing the death of an innocent pedestrian). Because of the gravity of the offense, the crime of murder carries life in prison, and due to the politics in California the Office of the Governor and the Parole Board almost never release someone on parole previously convicted of murder. Accordingly, criminal defense lawyers that are working in Los Angeles Courts, and throughout the Southern California criminal justice system, may ask that the jury to find their client guilty of something less than murder, such as a voluntary manslaughter or an involuntary manslaughter. Thes are crimes for which a Defendant is eligile for probation. The typical defenses to a murder charge being reduced include (1) "unreasonable" self-defense (2) voluntary intoxication (3) provocation and (4) heat of passion. Should the Los Angeles criminal lawyer be able to establish the defense, the Defendant is eligible for probation after a trial.For example, a preacher's wife in the south was recently convicted of Manslaughter for killing her husband, and received probation. The case received lots of media attention. Court TV reported tha: "A preacher's wife who was convicted of manslaughter for shooting her husband to death left jail Wednesday for a mental health facility, where she will serve the remainder of her sentence. After spending 13 days in McNairy County jail in Selmer, Tenn., Mary Winkler was transferred to an undisclosed mental health facility, where she will receive treatment for longstanding mental health issues, including post-traumatic stress disorder, depression and a mild personaliyy disorder. Circuit Judge Weber McCraw, who presided over Winkler's murder trial and gave her the option of serving some of her sentence in a mental health facility, signed the sealed order releasing Winkler Wednesday."At the provider's request and to ensure she has the treatment she needs, the name and location of the facility are not being disclosed," Tennessee Supreme Court public information officer Sue Allison said."Defendant Winkler was convicted of voluntary manslaughter in April for shooting Matthew Winkler in the back as he lay in bed in the family parsonage on March 22, 2006.On June 8, McCraw sentenced Winkler to three years, but with 210 days to be served in custody, minus 143 days she served in pretrial custody in 2006. He also gave her the option of serving up to 60 days in a mental health facility.During Winkler's trial earlier this year, defense psychologist Lynne Zager testified that Winkler's mental state affected her ability to form the criminal intent to kill her husband. Taking the stand in her defense, Winkler told jurors that her husband subjected her to emotional, physical and sexual abuse, prompting her to shoot him. The jury's verdict of voluntary manslaughter appeared to give credence to her claims. At her sentencing in June, McCraw asked Zager if Winkler would benefit from treatment in a mental heath facility, and Zager said yes.Because Winkler has already served 13 days in jail, she is set for release back to society after serving out her time in the mental health facility. Before she was taken into custody at sentencing, Winkler was living in McMinnville, Tenn., with a family who took her in after she was released on bond in 2006. The head of the household testified at her sentencing that Winkler had become a new person since going to live with the family.Her boss at a dry cleaner in McMinnville also testified at her sentencing that Winkler was a model employee whom the public should not fear if she were released. Tagged as: federal law and defense, jury trial defense


szistema on January 10, 2010 at 4:28 p.m. wrote: I cannot believe this will work! forexstrat_egy on December 23, 2009 at 10:19 a.m. wrote: I am definitely bookmarking this page and sharing it with my friends. :) Nona Niknam on November 30, 2007 at 5:01 a.m. wrote: I believe the only excuse for murder is to be mentally dysfunctional and that is why I truly believe in the David Carde on November 21, 2007 at 1:43 p.m. wrote: A follow-up in today's (11/21) LA Time's to yesterday's article about expediting the appeals process in death sentence cases: Apparently,'most officials' are behind a constitutional amendment allowing lower courts to deal with some death penalty appeals. The article reassured readers that the change would not entail 'significant cost to taxpayers.' A federal appellate judge chimed in to assure us that expediting the process is realistic, using the case of Timothy McVeigh, the Oklahoma City bomber, as his example, citing that McVeigh was put to death only 3 years after the death sentence was imposed. Apparently a large concern among judges and lawyers, however, is how few lawyers are available to handle death penalty cases which is also contributing to the back-log; low fees were cited as a major reason and quite a bit of the article was devoted to the problem of remuneration. In all of this, however, where is the person whose life is on the line? Talk about dehumanization. The very person who should be at the heart and soul of the issue was almost entirely left out. Except for one quote by the head of the state prosecutors association who called the plan for reform ' 'good for everyone except the person sitting on death row.'' Thank you DA Rod Pacheco for remembering that there's a human being at stake in this process. David Carde on November 20, 2007 at 3:33 p.m. wrote: Front page of today's (11/20) LA Times: More on the death penalty, this time at the state level, specifically California. Our state has the dubious distinction of having the largest death row population in the nation. Further, in Calif. it takes approximately 17 years to get to execution of a person condemned to death which is twice the national average. Since 1978 when the death penalty was reinstated in Calif, more prisoners condemned to death have died of old age, suicide, or prison violence (more than 50) than have been executed (13). Fearing they will become swamped with death penalty appeals, the Calif. Supreme Court has called for a constitutional amendment to allow the state Supreme Court to transfer some death penalty cases to lower courts. In order to do this, the state legislature would need to put such an amendment on the ballot for the November elections. But would increased alacrity from death sentence to execution be desirable (other than to ease the burden on the state Supreme Court justices - please read with sarcasm)? Obviously, death is the most extreme punishment. Would we really want to inject greater alacrity when sometimes either DNA evidence is exonerating or even other kinds of evidence emerge which clears the person? And would we really want to deprive someone of their right to review by the absolute highest court in the state when their life is at stake? Does this sound like an improvement or a step backwards regarding due process? Maybe a better alternative is to eliminate the death penalty altogether. Then we would eliminate the need for the entire appeals process which would automatically lighten the load of the Supreme Court. Further, this would stop the craziness in the system (at least for what would now be potential death penalty cases), which Pizzi describes, of having to worry about everything being so completely 'perfect' in every trial, slowing the trial and muzzling judges fearful of appeals as well as clogging the system with every possible appeal that defense attorneys can pinpoint. David Carde on November 18, 2007 at 9:04 p.m. wrote: Given that the Winkler case involves 'sentencing issues, I want to call attention to the front page of the 11 Nov issue of the NY Times. Although what I'm going to write is essentially non-responsive to the issues raised in Winkler, I do not think that this article should go unnoticed. The article is entitled 'Does Death Penalty Save Lives? A New Debate.' Apparently about 12 new studies have been published that purport to demonstrate that the death penalty does indeed have a deterrent effect. These studies come up with the statistic that for every person put to death, 3 to 18 murders are prevented. The article quotes a variety of experts, both in economics and in the legal field. Some criticize the studies, saying they are methodologically flawed and there's no way to tease out confounding variables. On the other hand, other experts claim that the studies are methodologically sound and that, even though they might personally be opposed to the death penalty, the issue now warrants re-examination. Given that I am personally opposed to the death penalty for many reasons, including that it is so unfairly applied and since DNA evidence has reversed convictions, I was particularly interested in a fact buried in the article. Canada has not executed anyone since 1962. Yet the murder rates in Canada and the US have fluctuated in parallel since 1962. This suggests that forces influencing the murder rate are in operation that have nothing to do with the death penalty. This also speaks to the difficulties of even sophisticated regression analyses (the type of statistics used in these studies) being able to partial out all confounding variables. Lina Smelansky on October 26, 2007 at 3:19 p.m. wrote: In terms of the validity of Winkler's sentencing, I feel that her diagnosis of various mental illnesses creates a very gray area. Though she may have been demonstrating symptoms of post traumatic disorder, depression, and mild personality disorder, the fact remains that this woman shot her husband. It seems to me that her punishment was not severe enough, considering what the consequences typically are for criminals convicted of manslaughter. Although I believe in some aspects of restorative justice in which a convicted individual gets therapy in a mental institution and is later released as a 'better' individual in society, this case seems to warrant more severe additional consequences. Taking Winkler's mental health state aside, the fact that she was prompted to kill her husband due to the physical and sexual assaults she endured seems to be irrelevant to the way she actually killed him. If he was sleeping when she shot him, she was not committing murder in self defense, but rather as a response to his abuse. I am not, in any way, condoning the spousal abuse, but I feel that this does not explain the logistics of how she committed this crime. This case is quite sad to read about, but it exemplifies the way one's mental state and mannerisms can easily manipulate the verdict in the trial. Kristin Bryan on October 26, 2007 at 2:47 a.m. wrote: Situations dealing with mental illness are questionable and challenging. As I am learning in my sociology class, mental illness patients are increasing at an alarming rate. More and more it seems that people are declared of suffering from depression, mild skizophrenia, bipolar disease, etc. David Rosenhan wrote an article discussing a case study done in which eight pseudo patients faked skizophrenia symptoms to get into a mental ward and once in acted completely normal. They were held with the task of 'proving' their sanity to be released. In each situation none of the patients were discovered as sane by any psychologists, nurses, or other staff. Even when they were released, it wasn't because they were sane rather because their symptoms were in remission. One main conclusion drawn supported Gesalt Psychology that elements are given meaning by the context in which they occur. For example, when waiting for the cafeteria to open for lunch a pseudo patient waited outside the door for five minutes until it was opened. This was recorded as an anxious symptom supporting his disease. On the contrary, wouldn't someone hungry for food who had nothing else to do in a lonley mental ward wait outside of the cafeteria? In cases with murderers claiming or being labeled with a mental illness I sometimes wonder if it is just an excuse to escape a full term penalty in prison or whatever the sentence may be. This may not be the situation in the Winkler case, as evidence supposedly shows she was abused and suffered under her husband. But just thinking about how people can take advantage of the system through faking/claiming mental illness is an interesting idea to keep in mind. Kate Monson on October 21, 2007 at 7:54 p.m. wrote: Two things I found disheartening about the Winkler case were that she was convicted of voluntary manslaughter and that she was not forced to carry out part of her sentence in a mental health facility. Voluntary manslaughter is when someone intentionally kills someone in which the offender has no prior intent to kill. However, if he was sleeping and was shot in the back it seems to be that Mrs. Winkler must have given it some prior thought because he wasn

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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