State v. Henderson: the Washington Supremes Examine Lesser-Included Offenses
On February 26th the Washington Supreme Court handed down a 6-3 decision in State v. Henderson reversing a trial court’s decision to deny Mr. Henderson a lesser-included-offense instruction for First Degree Manslaughter as an alternative to First Degree Murder. Defendants are entitled to lesser-included offense instructions where the evidence could reasonably lead a juror to convict on a lesser offense rather than a greater offense. This legal doctrine exists to minimize the risk, in the words of the late Justice Brennan, that “where one of the elements of an offense remains in doubt, but the accused is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”
The facts in Henderson were less then clear but the outline of what happened was largely undisputed. Mr. Henderson and an associate attended a house party in Tacoma and while there learned that an associate and alleged fellow gang member had died of a gunshot wound he had suffered earlier that day. Mr. Henderson was alleged at some point–possibly in retaliation for the earlier shooting of his friend–to have opened fire near the front of the house. Witnesses accounts varied on whether there was a crowd of people at the front of the house at the time or as few as two security guards who had been hired to maintain order at the party. In any event, one of the bullets struck an 18-year-old security guard who later died of his wounds.
The issue at trial was whether Mr. Henderson was entitled to an instruction on first degree manslaughter, which requires that the accused “recklessly cause the death of another person,” when he was charged with first degree murder, which requires that he “engage in conduct which creates a grave risk of death to another person under circumstances manifesting an extreme indifference to human life.” In a nutshell, viewing the evidence in the light most favorable to Mr. Henderson, could a reasonable juror have found that he recklessly caused the security guard’s death (reckless meaning he “knew of and disregarded a substantial risk that a homicide may occur”), but didn’t do so under circumstances manifesting “extreme indifference” to human life?
As the majority notes, this is a fine distinction, and under the facts of the case, where there were varying witness descriptions concerning where the shots were fired and how many people were at risk of being shot, a reasonable juror could have found “recklessness” rather than “extreme indifference.” The dissent disagreed, reasoning that whether there were two or twenty people in the area, if the jury found Mr. Henderson culpable for the shooting they could only have concluded it was committed with “extreme indifference” to human life rather than mere recklessness.
This decision is a reminder of the difficulty of predicting the positions of justices based upon their past decisions or reputations. The dissent was written by Sheryl Gordon McCloud, a former defense attorney who in her young tenure has written many dissents in defense of civil liberties. Among the justices in the majority was Chief Justice Barbara Madsen, who is known for her common-sense and fact-driven approach to criminal matters and will often side with the prosecution in cases where seeming “technicalities” would impede an otherwise righteous prosecution.
