Should the "Duress" Defense Be Available in Cases of Extremely Reckless Homicide?

From Michigan Supreme Court Justice Bridget McCormack's majority opinion (for four of the seven Justices) delivered Thursday in People v. Gafken:

[W]hile fleeing from police, Theresa Gafken ran a red light at speeds topping 100 miles per hour and collided with other vehicles, killing one person and causing severe injuries to several others; Gafken was also injured. The prosecution charged her with second-degree murder, and two counts of operating a vehicle while intoxicated (OWI) causing serious impairment of a body function.

Before trial, Gafken moved to allow certain testimony. Specifically, she asked to be allowed to testify that she intended to pull over when the police officer activated his overheard [sic] lights and that she didn't do so because Michael Scandalito, who was sitting behind her, then thrust a gun into her ribs and threatened to kill her if she stopped the car. She also wanted to testify that Scandalito was on parole and being sought for a parole-violation warrant and had committed aggravated assault against his mother while in a methamphetamine rage….

The majority held that the testimony should have been admitted, and Gafken should have been able to use the duress defense based on that testimony. Here's the heart of the short majority opinion, though there is also an interesting and much more detailed concurrence, plus three detailed dissents.

"The elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." Malice may be established in three ways: by showing (1) the intent to kill, (2) the intent to cause great bodily harm, or (3) the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm…. The prosecution charged Gafken only under the third theory of malice, commonly referred to as depraved-heart murder.

"Duress is a common-law affirmative defense." … "The rationale of the defense of duress is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person." …

"[H]istorically, duress was not permitted as an affirmative defense to murder." [In the words of] Lord Matthew Hale and William Blackstone, "[T]hough a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent."' … The rationale for the no-duress-defense-for-murder rule is … absent when depraved-heart murder is charged. Depraved-heart murder does not present the choice between sparing one's own life or taking the life of an innocent. It is not kill or be killed. Rather, the choice presented here is …: lose one's life or commit a lesser felony than intentional murder (here, reckless driving and fleeing from law enforcement).

Although it has often been repeated that duress is not a defense to "homicide" or "murder," we have recognized that this is an overly broad statement of the rule. Instead, the no-duress-defense-for-murder rule has been limited to cases of intentional murder historically.

To be sure, some authority from other jurisdictions sounds in a broad rule—that duress is not a defense to "murder" without qualification. See, e.g., People v Anderson (Cal. 2002) ("duress is not a defense to any form of murder"); Am Jur 2d, Homicide (it is "generally held" that duress is not a defense to murder and that "duress [does not] mitigate murder to manslaughter"). But generally, this authority involves interpretation of a statute providing under what terms a duress defense can be raised. Of course, a state legislature may dictate the terms in which the duress defense may be raised. Because our Legislature has not done so, we apply the common-law rule. And we are aware of no court that has considered the issue of whether duress can be raised as a defense to an unintentional homicide….

Understanding the foundation of the no-duress-defense-for-murder rule, we believe that Hale and Blackstone would not have intended to withhold the duress defense on these facts. Because Gafken alleges that she chose to do the lesser evil, a duress defense is available.

The prosecution doesn't offer many arguments to the contrary. Instead, it argues that this Court should not allow a duress defense for depraved-heart murder because the facts will make it very difficult for Gafken to succeed under a duress defense. But that argument confuses whether the law permits a duress defense (our job) with whether the defendant will be able to prevail on such a defense before a jury (not our job). A jury may agree with the prosecution—Gafken has a right to find out.

A defendant is constitutionally guaranteed the right to a "meaningful opportunity to present a complete defense." The trial court's order preventing Gafken from raising a duress defense to a second-degree murder charge that relied on a depraved-heart theory of malice was error, and it was not harmless. The denial of the defense, coupled with the trial court's exclusion of any evidence that Scandalito threatened Gafken, effectively left Gafken with no defense at all. The jury heard Gafken concede that she engaged in the conduct leading to the victim's death but was never able to consider whether "the law excused [her] conduct …." …

Comments

[Ridgeway]

I'd argue that the duress is a defense/mitigating factor against the DWI/OUI charge, and without the DWI/OUI charge, there is no murder charge.

Even if she voluntarily drove U the I to begin with, if she could prove that she intended to stop when confronted by police, I'd argue that the subsequent driving was essentially a separate offense for with the duress defense should be available.

[Noscitur a sociis]

I’d argue that the duress is a defense/mitigating factor against the DWI/OUI charge, and without the DWI/OUI charge, there is no murder charge.

While being drunk doesn’t help, I’d say that running red lights at 100 miles an hour could show “ the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm”

[Ridgeway]

Not if someone is pointing a gun at your head (or other critical infrastructure) and ordering you to do so.

Absent the impairedness, the legal duress concept becomes a bit of a red herring. The fact that a gun was pointed at the defendant's head makes it impossible to prove the "wanton and willful" mens rea.

[MatthewSlyfield]

I don't know about Michigan, but Wisconsin's vehicular homicide law is not DUI dependent.

[santamonica811]

I don't know the laws of any state other than California. But I seriously doubt that any state has any such DUI requirement for vehicular homicide . . . hard to imagine that, say, someone driving 100 in a 15 mph school zone would be able to escape a veh. homicide prosecution just b/c she happened to be sober at the time.

[John F. Carr]

In Massachusetts motor vehicle homicide is a misdemeanor if sober and a felony if drunk. A "misdemeanor" here is punishable by 2 1/2 years in jail. It counts as a felony for federal law.

Several years ago the legislature created a DUI variant of ordinary manslaughter. It adds a mandatory minimum sentence. Shake a baby to death and you can be out in a year. Convince a mentally ill man to kill himself and you can be out in two. Drive with a BAC of .08% and kill somebody, then the minimum sentence is five years. If the prosecutor chooses to call it manslaughter, which isn't very common. It's so much easier to prove the lesser offense of negligent motor vehicle homicide.

[Craig Johnston]

The depraved indifference occurred before he put a gun to her head, when she decided to operate a motor vehicle under the influence. There was always a chance that a person under the influence would not see a stop sign or a person in a crosswalk. To be duress, he would have had to force her to start driving, but that’s up to the jury now.

[Rossami]

That logic would require charging all drunk drivers with "depraved indifference" regardless of their actual behavior, operation of the motor vehicle or degree of impairment. That is not the standard applied in this jurisdiction. Nor in any other that I'm aware of.

[Craig Johnston]

It would require charging all drunk drivers who cause a death while driving under the influence to be charged with murder. IANAL but I thought that was the practice, at least in California.

[John F. Carr]

One of the cases cited, Commonwealth v. Vasquez, 462 Mass 827, collects case law as of 2012. The Massachusetts case ruled against duress as a defense to intentional murder, leaving open the issue in the rare cases involving unintentional murder. We do not ordinarily charge traffic accidents as murder like California does. The only conviction I recall involved a police chase like the Michigan case. Even that is rare. More often a death during a police chase upgrades charges from negligent homicide to manslaughter.

[Dr. Ed 2]

Isn't manslaughter 3rd degree murder?

[David Nieporent]

No.

[John F. Carr]

A few states have a crime called third degree homicide that looks to me like what the common law calls manslaughter.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Seems pretty reasonable to me. The prosecutor's job is to present his own case, not hobble the defense's case.

I wonder about other factors, though. How did this felon end up in her car? Why was she driving drunk?

I generally don't like making drunk driving itself a crime, especially as measured by BAC; I'd rather that any accident, injury, or death resulting from driving drunk be punished much harder. The driver here seems to have exceptionally poor judgment: driving drunk, allowing a known parole violator, meth user, and assaulter in her car. At what point does such negligence become her fault? If she brings up the duress argument (again?), will the prosecutor be able to bring up the question of how the parolee got in her car?

[Noscitur a sociis]

The prosecutor’s job is to present his own case, not hobble the defense’s case.

I’m not sure I follow. Isn’t it very much the job of the prosecutor to disprove and refute such a case as a defendant may present?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Certainly. But it is not the prosecutor’s job to get the judge to cripple the defense’s case. Either juries are competent to judge the evidence, or there should be no jury trials.

ETA: It's one thing for the prosecutor to try to prove the defense is full of holes, witnesses are wrong, and so on. It's another thing entirely to prevent the defense from putting on some of their evidence. If the prosecutor thinks the defense evidence is that shaky, prove it, and let the jury see how shoddy that evidence is.

[Noscitur a sociis]

But the issue here isn’t whether or not the defendant actually got threatened or is making it up—the issue is whether or not that would have any legal significance if it had happened. If the evidence would only relevant to a “defense” that is not actually a legally valid defense at all, then it shouldn’t be admissible, and I think it’s perfectly fair to the prosecution to object to inadmissible evidence.

[fafalone]

The judge should be able to instruct them it's not a legal defense, but shouldn't be allowed to gag them from explaining the motive. It sounds like yet another attempt to suppress any possible jury nullification... they don't want to allow the defendant to offer an explanation for why they committed the crime that some people would find makes a conviction morally unacceptable regardless of whether it's a "legal" defense or not.

[SRG]

You have a pleasantly naive view of how US prosecutors behave. You should see how Arizona prosecutors handled the Barry Jones case.

[Darth Buckeye]

If I had been the prosecutor I would not have dismissed the two OWI charges. So what if Defendant wants to try and present evidence of duress as a defense against the two OWI charges; I doubt a jury is going to buy that. By playing hardball, the Prosecutor gets to try the case all over again. Except I wonder if the two OWI counts were dismissed with prejudice and whether the Statute of Limitations has expired.

[Frank Drackman]

Too bad Ted Kennedy didn't get a chance to use this D-fense, and not really joking, you don't think if RFK had still been alive he wouldn't have been able to plant a gun in Mary Jo Kopeckney's (Asphyxiated, not Drowned, there's a difference) dead hand and "Chappaquiddick" might have become his "PT 109" moment....

Frank

[Intelligent Mr Toad]

Really, Chappaquiddick? Still? Last time I heard that one, I fell off my pet dinosaur.

[Frank Drackman]

No Statue of limitations on murder

[Krychek_2]

But there should be a statute of limitations on bringing up stuff from 50 years ago, especially when the participants are all dead. It really says something that your go-to slam against the Democrats happened half a century ago.

[Frank Drackman]

You're right, not like the Fake News did anything with the "50th Anniversary of Watergate". Seriously, does your mom let you go out in pubic with that (lack of) intellect??

Frank "Horrorcost was 75 years ago, forget it!"

[Noscitur a sociis]

Understanding the foundation of the no-duress-defense-for-murder rule, we believe that Hale and Blackstone would not have intended to withhold the duress defense on these facts.

Is it just me, or is this a strange formulation? If Michigan courts can create nonstatutory affirmative defenses, isn’t the key issue whether the judges think it’s a good idea now, not what a couple of English jurists “would … have intended” hundreds of years ago?

[Drewski]

Michigan constitution incorporated the common law (as it stood, barring constitutional conflicts). This court did not create the defense of duress in any sense. That it looked back to history in its interpretation of how to apply it here does not strike me as unusual, even as someone skeptical of modern originalism.

[ReaderY]

I agree that the no-duress-defense applies to intentional murder but not unintentional homicide.

Michigan may be unusual in classifiying certain kinds of unintentional homicide as second degree murder rather than a lesser offense. If second degree murder required intent without premeditation, as is the case in many states, the whole issue of whether duress is a valid defense to murder under thsese facts would not have come up.

I also think that the issue here is statutory, not purely common law. The statute requires that an unintentional homicide be without justification or excuse. I think a fair reading of this text is that traditional justifications and excuses mean the statute doesn’t apply. That is, the “without justification or excuse” language identifies an element of the crime.

The difference may be critical for this case. The defendent has to prove a common law affirmative defense by a preponderence of the evidence. But the state has to prove an element of the crime beyond a reasonable doubt. So if the state has to prove that the homicide was without justification or excuse, the defendant’s evidence of excuse only has to be enough to cast reasonable doubt on this element. That’s a much lower burden of proof, and one that might well make a difference to the outcome of a case like this where the facts are hotly disputed.

[Longtobefree]

Reads like the parole board made a mistake.

[ReaderY]

A jury may well not believe the defendant’s testimony, which is very self-serving and may be impeachable in other ways or contradictable by orher evidence. But as the Supreme Court of Michigan rightly said, such matters are for a jury to decide.

[SomeGuy 2]

Not the person you’re responding to, but I think you’re missing their point. The parole board let Scandalito out, who then did meth and assaulted his mother and (allegedly) threatened the Defendant Gafken with murder, leading to a chain of events where she went on a high speed chase and killed someone.

Parole board shouldn’t have let Scandalito out in the first place, then we wouldn’t be talking about this and the deceased would still be alive. Parole boards vary from state to state but tend to be very soft on crime if the parolee even pretends to be sorry. This is just one example of somebody dying because of it. To say nothing of the mother who was assaulted. Surely this case calls for a review of the parole process regardless of what happens to Gafken.

[Krychek_2]

That parole boards are soft on crime and release anyone who even pretends to be sorry would come as a huge surprise to anyone with actual experience dealing with parole boards .

[SomeGuy 2]

As I said, it vary from state to state. But obviously this was an egregious mistake. Per the Michigan inmate search, he appears to have been in for his third domestic violence offense, was out long enough for a cup of coffee before this incident, and is now back in due to an armed robbery. If this is the sort of person being granted parole, obviously they’re being way too generous. And it’s worth public questioning and accountability; a person is dead because of the parole board’s mistake and there are several non-deceased victims too. One great thing local media could do is keep them accountable with a running tally on how many crimes were committed by people out on parole.

These decisions matter, and being soft on crime ultimately only helps criminals.

[Krychek_2]

In retrospect it sure does look like a big mistake. However, I don’t know what information the parole board had in front of it. It may have been a reasonable decision based on what they knew at the time. Or you may be right and this board may be idiots.

The other issue is that most people who are paroled go on to not re offend. Cases like this make news; the parolees who keep their heads down, find gainful employment, and become productive citizens don’t. So how many people who would make good are you going to keep locked up because occasionally a parole decision turns out badly. Prisons are expensive.

[SomeGuy 2]

Sure, and that's something for local journalists and politicians to look into-- just what did the parole board know at the time? There doesn't appear to be any good coverage of this. "Oh but we didn't know at the time" is a bit of a dodge, of course the prospective parolee isn't going to say that he plans to go out and commit more crimes. Similarly, I don't think that most (as in 50%+) don't go on to re-offend helps much. If 49.999% of people go on to commit serious crimes, that's a lot of corpses dropped by parolees. Really hoping for a success rate more in the 99%+ range.

Prisons are expensive, but it's one of the best and most important thing state governments do. The average person can't defend themselves from criminals; we rely on the government to protect us. Someone getting a sentence for a crime, not serving the whole thing, then killing someone before the time would have been up should rightly be seen as a massive boondoggle. Politicians don't suffer much from soft on crime policies, but ordinary people do.

[Noscitur a sociis]

The other issue is that most people who are paroled go on to not re offend.

Do you have a source for this? The data I’m familiar with consistently shows a recidivism rate of over 50%.

[Frank Drackman]

And those are just the dumbasses who get caught.

[Krychek_2]

In Florida, "the recidivism rates have ranged over the prior five years (2015-2020) between 24%-25%). http://dc.state.fl.us/pub/recidivism/FDC%20Recidivism%20Report%202018%20Cohort.pdf

However, "recidivism rates", standing alone, is probably not a useful metric anyway since it depends on the age of the offender, the crimes committed, and the likelihood the offender will find gainful employment and housing upon release. A 20 year old with no social support network who committed a premeditated murder a year ago is probably a higher risk than a 50 year old who is in for vehicular homicide and who has a job and family waiting for him on the outside.

[Noscitur a sociis]

However, “recidivism rates”, standing alone, is probably not a useful metric anyway since it depends on the age of the offender, the crimes committed, and the likelihood the offender will find gainful employment and housing upon release.

I don't disagree, but you said that "most people who are paroled go on to not re offend." I'm asking if you have a source that will substantiate that claim.

[Krychek_2]

And I gave you a source. Please note the paragraph in my last post that begins “in Florida” and has a link.

[Noscitur a sociis]

Your source notes that "Unlike many states, Florida currently paroles very few inmates, since parole was effectively abolished in 1983." So I'm not clear why you feel that it supports your point about recidivism among parolees.

[Krychek_2]

Oh, Florida's pretty choosy about who it paroles, hence my earlier response to the claim that parole boards are soft on crime and let out anyone who even pretends to be sorry. But, it has a low recidivism rate among those it does parole.

[Frank Drackman]

they turned yours down again?

[Joe_dallas]

The parole board made a mistake -

The defendent made a mistake being around the parole violator dude and made a mistake letting the dude in her car.

[Noscitur a sociis]

That's a question of the remedy (although the analysis on that point does seem surprisingly cursory to me). The more important question is what the jury should do with that evidence if they do believe it.

[Darth Buckeye]

So perhaps they should charge Scandalito with felony murder. He would have been committing a felony, some time of aggravated assault (I don't know Michigan criminal law) that resulted in a death.

[SomeGuy 2]

In theory quite possibly, but according to the Michigan inmate search this dude earned himself a trip to prison until 2062 (when he’ll be 76 years old) for unrelated reasons so somewhat pointless, he’ll either die before he gets out or be too old to be a threat based on his current incarceration. Unless the parole board decides to grant him their favor again, of course.

[SomeGuy 2]

"Specifically, she wanted to testify that one of the men, Michael Scandalito, who was being sought for a parole violation—and for whom defendant knew an arrest warrant had been issued—had
thrust a hard object into her ribs, which defendant believed to be a gun"

I think the Court got it right in that it's for the jury to decide, but that the jury should properly view such a defense with extreme skepticism. So all somebody has to do is hang out with someone that they *know* has an arrest warrant for them, then go on any crime spree they like. If they get caught, then they blame the felon. Her own choices here give her some level of complicity in this even if she's telling the truth. She could have been a good citizen and turned him in, she could have been a neutral citizen and had nothing to do with him, instead she's palling around with someone she knows is wanted. Prosecution should get deeply into that choice and I suspect will have little trouble tearing hear apart on cross.

[F.D. Wolf]

On a tangential note, the author of this 4-3 majority opinion, dated December 29, 2022, was Justice Bridget Mary McCormack whose tenure on the court would end two days later. McCormack had been elected to an eight-year term in 2020, but announced her retirement last September, effective at year's end. Her successor, Kyra Harris Bolden, assumed office January 1 (yesterday). Per the Michigan constitution, the governor can fill vacancies in the court, and those appointees serve until the next general election, at which time an election is held to finish the unexpired term.

[Intelligent Mr Toad]

Who should be held responsible for this crime?

The guy who threatened the driver with the gun, and, everyone who enabled him to get his hands on the gun, including the manufacturer who made it, and the seller who sold it, and whoever bought it and took such poor care of it that it got into the hands of a paroled criminal, and the Supreme Court justices who have stopped us from regulating it, and the libertarian bloggers and law-profs who propagandize the ideology which enabled and motivated the Supreme Court to do that. (I'm not gonna mention any names......)

[F.D. Wolf]

LOL. Typical leftist - blame anyone and everyone except the person who actually did it.

What if he had been holding a knife to her throat? Would you be shaking your fist and demanding justice from Oneida and Pottery Barn?

[Intelligent Mr Toad]

Read the post again. Notice what it says BEFORE you reply.

[M L]

You are pretty intelligent, for a toad.

[Gasman]

So what what it that stopped her from mentioning this?
Even if duress as a formal defense strategy is not allowed, surely someone asked for a reason she did not stop, or the prosecutor simply implied a willfulness on her part, which she then could refute by citing the presence of a guy on the run in the backseat with a gun...
Or is the real reason the case is at this point is because the defense saved this as a point of appeal should they need it due to conviction?

[Noscitur a sociis]

I would imagine that after the judge excluded this evidence, she decided not to testify.

[Kenneth Almquist]

The judge ruled that the evidence was inadmissible, which means that the jury doesn't get to hear it. If her lawyer put her on the stand and asked her why she did not stop, the prosecutor would pop out of his chair and say “Objection, your Honor; may we approach,” before the witness had a chance to answer, and in a discussion that the jury cannot hear, the judge will make it clear that the defendant isn't allowed to introduce evidence that someone was pointing a gun at her.

If the prosecutor claimed that the defendant did not act under duress, then the defendant could make another motion to introduce the evidence, and the judge might grant it. A good prosecutor will avoid this by only talking about stuff that he needs to prove in order to establish the guilt of the defendant.

[Kenneth Almquist]

I should add that I really do feel that the trial judge was wrong here, and that the Michigan Supreme Court was correct to overturn the verdict. My point is just that once the judge ruled the evidence inadmissible, the next step for the defendant it to appeal this ruling, which doesn't happen until after the trial is over. Until then, the defense lawyer is stuck with the ruling.

[The Margrave of Azilia]

I'm sure the jury would love to hear her story. What they'll do with it, I don't know.

[Ben_]

Another example for why police shouldn’t engage in high speed car chases, especially in populated areas.

[Noscitur a sociis]

“If you drive super dangerously, the police will stop chasing you” doesn’t strike me as a strong incentive structure.

[Alpheus W Drinkwater]

Yes, it's better if police react to a dangerous situation by making it even more dangerous.

[Noscitur a sociis]

No, it’s better if they act to eliminate the danger, and better if they remove the incentive for criminals to create the danger in the first place.

[apedad]

Why can't this be considered felony murder and charge the guy with the gun?

[Noscitur a sociis]

Well for one thing, there doesn’t seem to be any admissible evidence that any of this happened except Gafken’s testimony, which of course she has a privilege to withhold until after her conviction (or acquittal) becomes final.

Assuming they could prove things unfolded as Gafken says, which of the predicate felonies identified in Mich. Comp. Laws § 750.316(b) do you think are implicated?

[questioner7]

“threatened to kill her if she stopped the car” — but not if she obeyed speed limits…. or did he threaten that too?

[TwelveInchPianist]

Why?

[Kleppe]

Agreed. This is also roughly why I am opposed to duty to retreat laws. It's called "fight OR flight" for a reason, and requiring the latter while outlawing the former is a policy blind to the human condition.

[ReaderY]

State Courts’ ability to change the common law varies. Michigan courts seem to have a lot of power. The Michigan Supreme Court created a brand-new common-law crime of assisting a suicide in the 1990s, on its own-say-so that such a law was needed, as part of the Kevorkian affair, for example. But nonetheless, the presumption is existing common law stays in place unless there’s a really good reason to change it.

The opinion strongly suggests the majority didn’t see such a reason. It defends the reasoning primarily on grounds that this is the right thing to do under common-snese concepts of justice, not by historical efforts to parse Blackstone and Hale

[TwelveInchPianist]

I doesn't have to be worse, but you still want to deter the person.

Suppose somebody tells you, kill 10 innocents or I'll kill you. You might say, well, sucks about the 10 innocents, but at least I get to go home and see my family again, etc.

But if you face the prospect of going to prison instead of going home to your family, you might have the incentive to do the correct thing, and take the hit.

This is the argument for criminally prosecuting some of the cowardly behavior we've seen at some recent school shootings, where cops said things like, "If my son were in there, I wouldn't be outside, I promise you."

[Noscitur a sociis]

To the extent that incentives matter in such a situation, I think there's merit towards incentivizing the pro--social behavior of resisting the threatened instead of victimizing additional innocents.

And of course, criminal punishments aren't just about deterrence.

[Krychek_2]

Except that when someone has a gun pointed at them, they’re not thinking things through in a calm, cool manner. Nothing is going to deter them at that point. Their survival instincts have kicked on and they’re running on pure adrenaline.

[TwelveInchPianist]

There's always going to be line-drawing. Should "fire 10 shots into that crowd" get a duress defense? It's not clear that it shouldn't.

[DRM]

The Michigan Supreme Court created a brand-new common-law crime of assisting a suicide in the 1990s, on its own-say-so that such a law was needed,

Not exactly.

Michigan has a broad “common-law saving statute”, to wit:

“Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.” — Michigan Compiled Laws, § 750.505.

So:

1) Under the common law, suicide was a felony (as we know from Blackstone). 2) The common law provides that, for a felony, principals in the second degree are those who were actually or constructively present at the scene of the crime and aided or abetted its commission. 3) Accordingly, anyone who was actually or constructively present at the scene of a suicide and aided or abetted its commission was indictable at common law for the felony of suicide as a principal in the second degree. 4) Thus, under Michigan’s saving statute, anyone who was actually or constructively present at the scene of a suicide and aided or abetted its commission committed a felony “punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.”

The result might well be insane as a matter of policy, but in the law it falls directly out of Blackstone plus the 1931 Michigan statute as logically and inevitably as a geometric proof.

[Jerry B.]

Also, “Drive me out of here right now or I’ll kill you”, differs from “Kill ten people or…”. Just driving doesn’t include the explicit command to kill.

[Kazinski]

Well that is the law, and that is why the duress defense is not available for murder. Shooting into a crowd is straight out murder, not "wanton disregard" murder as in this case.

But the court says it should be available for cases where innocent death is a remoter possibility, and that logic seems to also encompass a duress defense for felony murder.

[Ben of Houston]

And don't forget the classic line. "You shoot him or I'll shoot him and then you too". I forget the movie it's from. But now, you have a person who is going to die no matter what you do.

But at the very least, this sounds like it should have been presented to the jury as a mitigating circumstance. Since the choice presented to her was "drive recklessly" or "get shot", she chose the former, hoping that it would be less damaging, and unfortunately, she chose wrong.

If the jury doesn't buy it, at least they got a chance to hear.

[Ridgeway]

To put it in clearer legal terms, duress is an imperfect affirmative defense, so it is applicable only after the prosecution has proven all the elements of the crime.

Here, the "gun to the head" is exculpatory evidence against the requisite mens rea. Assuming the evidence is persuasive enough, you never get to the need for an affirmative defense.

[Noscitur a sociis]

How do you figure?

The crime requires proof that she understood that “ the likelihood that the natural tendency of [her] behavior [was] to cause death or great bodily harm” and did it anyway. How would the disputed evidence negate that?

[tkamenick]

No, shooting into a crowd is the classic example of wanton disregard/depraved heart. You might not intend to kill somebody, and there's a pretty good chance nobody actually dies, but it's a level higher than ordinary negligence.

[tkamenick]

That's basically where I am. This isn't a great spot for line-drawing by judges, so let it go to the jury. If I were on the jury I'd be inclined to think "not pulling over is a far cry from driving at insane speeds through intersection".

[Ridgeway]

You skipped the first part of the element:

"... with the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm."

With a gun to one's head, one is not behaving wantonly and willfully.

Leaving aside the DWI component, the crime she is committing under duress is speeding/reckless driving. Duress is (I think) a defense to that.

Normally, one would be guilty of manslaughter or "depraved heart" murder caused by such conduct, but where, as here, that conduct is not criminal, the consequences should not be criminalized either.

Note, I take no position on whether her story is plausible or convincing. I am looking at this like a law school hypo.