Installment Three: The Prosecution of George W. Bush for Murder

[Dos Equis]

Bugliosi is not misreading the statute.  If 'premeditation' is bothering you then here's your answer:

"In most states, in order to have first (as opposed to second) degree murder there has to be not only a specific intent to kill (express malice) but this intent to kill has to be premeditated.  The courts have consistently held that although a spontaneous intent to kill does not constitute premeditation, premeditation does not have to be long at all.  There are cases where a period of time as short as several seconds sufficed.

In a prosecution of George Bush, we're dealing with a premeditation to go to war that took place over months, so there is no question that there was premeditation in this case."  P 95

______________________

It's not even an issue that can be contested but I am glad we got it out of the way.

What we have here is a failure to communicate.     Decker what must Bugliosi prove, based on the language of the statute, to show Bush is guilty of first degree murder?  Quote me the specific provision of the statute that applies. 

[Decker]

What we have here is a failure to communicate.     Decker what must Bugliosi prove, based on the language of the statute, to show Bush is guilty of first degree murder?  Quote me the specific provision of the statute that applies. 

He must show Bush engaged in "The unlawful killing of a human being with malice aforethought."

The act of killing of a human being. The necessary malice aforethought (intent) to kill that person. And whether Bush has a lawful defense to murder charges.

Bush had the soldiers killed when he ordered them to invade Iraq.  That invasion did not happen by accident.

[Dos Equis]

He must show Bush engaged in "The unlawful killing of a human being with malice aforethought."

The act of killing of a human being. The necessary malice aforethought (intent) to kill that person. And whether Bush has a lawful defense to murder charges.

Bush had the soldiers killed when he ordered them to invade Iraq.  That invasion did not happen by accident.

I disagree.  He has to prove the conduct falls within one of the following:

"Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing;"

"or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery;"

"or perpetrated as part of a pattern or practice of assault or torture against a child or children;"

"or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed;

"is murder in the first degree.
Any other murder is murder in the second degree."

[Decker]

I disagree.



He has to prove the conduct falls within one of the following:

"Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing;"

No he doesn't.  He has to prove "The unlawful killing of a human being with malice aforethought."

Now if you had read my original post in this thread, you'd see where I address the unlawful act, the unlawful state of mind (malice aforethought is a term of art encompassing "willful, deliberate, malicious, and premeditated" aka intent) and whether Bush had a defense to the charge.

"or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery;"

This is felony murder.

[Dos Equis]

No he doesn't.  He has to prove "The unlawful killing of a human being with malice aforethought."

Now if you had read my original post in this thread, you'd see where I address the unlawful act, the unlawful state of mind (malice aforethought is a term of art encompassing "willful, deliberate, malicious, and premeditated" aka intent) and whether Bush had a defense to the charge.
This is felony murder.

Then why doesn't it say the unlawful killing is "first degree murder"?  Why does it distinguish between first and second degree murder? 

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.

[Decker]

Then why doesn't it say the unlawful killing is "first degree murder"?  Why does it distinguish between first and second degree murder? 

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.

First degree murder carries a stiffer penalty--possibly death--than second degree murder.

Second degree murder is murder with mitigating circumstances.  The requisite malice/aforethought/intent is not present b/c of those mitigating circumstances.  Killing in the heat of passion--e.g., coming home early from work and finding your wife in bed w/ another guy and killing that guy on the spur of the moment.--there's intent to kill without premeditation.

[Dos Equis]

First degree murder carries a stiffer penalty--possibly death--than second degree murder.

Second degree murder is murder with mitigating circumstances.  The requisite malice/aforethought/intent is not present b/c of those mitigating circumstances.  Killing in the heat of passion--e.g., coming home early from work and finding your wife in bed w/ another guy and killing that guy on the spur of the moment.--there's intent to kill without premeditation.

Dude.  If "the unlawful killing of a human being with malice aforethought" was automatically first degree murder, then it wouldn't distinguish first and second degree murder in that same paragraph.  It wouldn't list the various forms of conduct that amount to first degree murder and then say "[a]ny other murder is murder in the second degree." 

[Decker]

Dude.  If "the unlawful killing of a human being with malice aforethought" was automatically first degree murder, then it wouldn't distinguish first and second degree murder in that same paragraph.  It wouldn't list the various forms of conduct that amount to first degree murder and then say "[a]ny other murder is murder in the second degree." 

Here is first degree murder:  the unlawful killing of a human being with malice aforethought

And

Here is second degree murder:  Any other murder is murder in the second degree.

"or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children;"  This section just lays out the felony murder rule:  any killing in the perpetration of these heinous crimes will automatically be murder one--that's to say the intent will automatically be assumed on the killer.

"or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree." is a catch-all automatically imputing the requisite intent for murder one.  It's a fiction b/c the killer would not intend to kill any human being other than him who is killed thus murder one charges would be null.

"Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing" quantifies the term of art "malice aforethought".

Second degree murder simply lacks the criminal intent of first degree murder.  All murders not committed with malice aforethought are second degree murder unless they are a felony murder or another unintended killing.  These crimes are so heinous that the requisite intent to kill is imputed/assumed on the killer and second degree murder becomes first degree murder automatically.

[Dos Equis]

Here is first degree murder:  the unlawful killing of a human being with malice aforethought

And

Here is second degree murder:  Any other murder is murder in the second degree.

"or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children;"  This section just lays out the felony murder rule:  any killing in the perpetration of these heinous crimes will automatically be murder one--that's to say the intent will automatically be assumed on the killer.

"or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree." is a catch-all automatically imputing the requisite intent for murder one.  It's a fiction b/c the killer would not intend to kill any human being other than him who is killed thus murder one charges would be null.

"Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing" quantifies the term of art "malice aforethought".

Second degree murder simply lacks the criminal intent of first degree murder.  All murders not committed with malice aforethought are second degree murder unless they are a felony murder or another unintended killing.  These crimes are so heinous that the requisite intent to kill is imputed/assumed on the killer and second degree murder becomes first degree murder automatically.

We just have to agree to disagree.  The way I read this and the way it is worded, "the unlawful killing of a human being with malice aforethought" is murder.  "Murder" is then divided into first degree and second degree in the same passage based on the conduct listed in the passage. 

[War-Horse]

Bush intentionally sent men to die for a false war.  This forethought & intent is first degree murder...simple.

[Decker]

We just have to agree to disagree.  The way I read this and the way it is worded, "the unlawful killing of a human being with malice aforethought" is murder.  "Murder" is then divided into first degree and second degree in the same passage based on the conduct listed in the passage. 

There's nothing to agree to disagree about. 

First degree murder is the unlawful killing of a human being with malice aforethought.

That's it for the Bush case.  End of discussion.     

All those other instantiations of criminal killing that follow the TEXTBOOK DEFINITION OF FIRST DEGREE MURDER are NOT first degree murder.  There is some element of malice aforethought missing. 

The murder statute attributes that intent to the criminal to make the laundry list of killings murder in the first degree for policy reasons.

Here's your bone of contention: 

'If "the unlawful killing of a human being with malice aforethought" was automatically first degree murder, then it wouldn't distinguish first and second degree murder in that same paragraph.

Your statement makes no sense to me.  '[T]he unlawful killing of a human being with malice aforethought is the definition of first degree murder.  Any other homicide is second degree murder.  Why is that problem?

You add that

It [the statute] wouldn't list the various forms of conduct that amount to first degree murder and then say "[a]ny other murder is murder in the second degree."

The 'various forms of conduct' to which you refer are additions to the first degree murder definition.  Those types of killings are included, for policy reasons, with first degree murder. Without inclusion in the statute, those 'various forms of conduct' would not be first degree murder b/c malice aforethought is not present in some manner.

Look up the Felony Murder rule and then look at "or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children;"....

The policy decision is that b/c the felonies are inherently dangerous, any killing done in the perpetration of those felonies automatically imputes malice aforethought/first degree murder to the killer.  Same with 'black heart' definition where unintended people are killed by the killer.

Can we proceed on to the evidence now?

[24KT]