Oral Argument: State v. Anderson, March 3, 2010

On March 3rd, the Court heard the case of the man the press has dubbed the “Craigslist killer.” In 2010, one’s fifteen minutes of fame (or infamy) tend to get meted out on Wikipedia; here are Michael John Anderson’s. Most people are familiar with the basic facts of the case:  Anderson lured Katherine Olson to his house with a phony Craigslist ad for a baby sitter. Anderson wound up shooting Olson in the back.  Afterward, in the jail, Anderson blabbed to other inmates that he shot Olson because he wanted to see what it felt like to kill.  At trial, the defense contended that Anderson shot Olson on the spur of the moment to prevent her from running away.  Unpersuaded, the jury convicted Anderson of premeditated murder.

Curious Arguments in a Curious Case

Most of the time allotted for the oral argument was spent on Anderson’s assertion that the pattern jury instruction on premeditation, CRIMJIG 11.02, provided an inadequate explanation of the law in the peculiar circumstances of his case.  (Anderson’s counsel, Alan Margoles, was forced into this fussy phrasing; he was hemmed in by State v. Goodloe, which had upheld CRIMJIG 11.02 some four years previously.) Margoles’ argument revolved around this phrase from State v. Moore, 481 N.W.2d 355 (Minn. 1992):  To establish premeditation, the state must prove that “after the defendant formed the intent to kill, some appreciable time passed during which the consideration, planning, preparation or determination required by Minn. Stat. § 609.18 prior to the commission of the act took place.”  In comparison, CRIMJIG 11.02 states:  “Premeditation means that the defendant considered, planned, prepared for, or determined to commit the act before the defendant committed it.”

Margoles read the Moore sentence as embodying, in essence, a how-to manual for the premeditation determination.  The Moore formula for premeditation, he cautioned the Justices, “goes against all of our every day ways of thinking.”  It bucks “common sense.”  It requires, he said, four steps which unfold in counter-intuitive order.  First you consider killing.  Then you actually determine to kill.  Then you think about it or premeditate.  Then you act.

The Justices appeared not to know what to make of this argument.  Their questions veered off into other directions.

Margoles continued to return to his point.  First you form the intent to kill and then you think about it, he said.  Premeditation does not take place before the intent to kill is formed; it takes place afterward.

Justice Magnuson finally bit.  “It’s consider the act and then do it.  That’s premeditation,” he said.

No, responded Margoles.

Justice Magnuson:  “If I consider whether to kill you, then I kill you, I’ve premeditated, haven’t I? Under the law, under the statute?”

Margoles:  “Only if you have made, formulated intent to kill before you’ve considered.”

“No,” replied Justice Magnuson.  “I considered whether I would kill you and thought, yes, I will.  And I did.  That’s premeditation, isn’t it?”

Margoles:  “No.  That’s what I’m trying to get at.  That’s what all of this is getting at.”

Justice Magnuson, in a tone of disbelief:  “That’s not premeditation?”

Margoles:  “No.”

Justice Magnuson:  “I consider whether or not to kill you and I decide to kill you.  That’s not premeditation?”

Margoles:  “No, Your Honor.”

“Okay,” said a skeptical-sounding Justice Magnuson.

Anderson’s second contention was that was that he should have been permitted to present expert testimony about how his Asperger syndrome affected his physical capacities.  Margoles argued that some explanation was necessary as Anderson sat woodenly throughout the lengthy trial, constricted and uncommunicative, and his presentation might have struck the jury as sinister.  Also, at trial the defense sought to introduce expert testimony that Anderson’s Asperger snydrome rendered him unusually clumsy.  Had this evidence been permitted, said Margoles, Anderson would have had the option of arguing a defense of accidental shooting to the jury.

Justice G. Barry Anderson asked Assistant Scott County Attorney Michael Groh whether expert testimony of this sort is ever admissible.  Groh replied, in effect, that it did not matter since, “odds are,” cases involving the genuinely mentally ill “aren’t even going to get to trial.”  He expressed his view that Rule 20.02 does a fine job of sparing mentally ill individuals from the harsh consequences of criminal liability.  Oh, the fabled largesse of the M’Naughton rule.

Curiouser and curiouser.

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One Response to Oral Argument: State v. Anderson, March 3, 2010

  1. Tom says:

    It seems the flaw in Margoles’ reasoning is in his definition of “intent.” He speaks as if intent requires the decision to kill. Rather, it makes more sense to define intent as a logical cognizance about the act under consideration: if I do this, it would be to cause that person’s death. The actual decision to go forward with that act is separate.

    There is conflict on the intent element between CRIMJIG 11.02 and the Moore opinion. Specifically, the jury instruction defines intent thusly: “In order to have had an intent to kill, the defendant must have acted with the purpose of causing death (or the defendant must have believed that the act would have that result).”

    The instruction implies that intent is formed contemporaneously with the act itself; there is no indication that some intent must have been formed _prior to_ some other planning or consideration, as Moore seems to hold.

    If the formula for premeditated murder must be defined chronologically, I’d break it down like this: first, the intent to kill must be formed, meaning that it occurs within the defendant’s mind that a certain act could be done for the purpose of killing another person and the defendant believes that by doing that act, the other person would be killed; second, the defendant considered the decision to do that act and decided to do it, which decision may be definitively shown by evidence of planning/preparation; and third, while retaining the intent, the defendant does the act he had decided to do.

    This would require an amendment of the confusing and over-broad statutory definition of premeditation, of course, which definition currently includes “to consider, plan or prepare for, or determine to commit.” Consideration and planning or preparation do not constitute premeditation on their own; it’s the decision to do the act that matters. Really, premeditation is nothing more than, it occurs to you that you could accomplish X by doing A; you decide, yes I will do A; and then, you do A with the purpose of accomplishing X.

    On the facts claimed by Anderson, therefore, premeditation could still be found. The victim begins to run away; Anderson thinks, I could use this gun to shoot at her, and then she’d die and not be able to run away; yes, I’ll do that; and now I’ll shoot in order to kill her. Even if that took place within two seconds, it could be first-degree murder. There is no requirement, as Margoles claims by misunderstanding intent, that two separate decisions to kill be made, one before premeditation and one afterwards.

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