EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, July 21, 2015

An Addendum to the Addendum: More on Bail, "Murder," and Juvenile Suspects

In last night's Addendum episode of the Undisclosed Podcast, we again discussed the denial of bail to Adnan Syed in connection with his murder prosecution. In the prior episode, I had noted that about 60% of murder suspects are given some type of bail package. That statistic came from this Bulletin by the Bureau of Justice Statistics (BJS), which noted that 40% of murder defendants are denied bail. But what exactly is a murder defendant?

According to a comment on this blog post, the BJS has said that

"Murder includes homicide, non-negligent manslaughter, and voluntary homicide. Excludes attempted murder (classified as felony assault), negligent homicide, involuntary homicide, or vehicular manslaughter, which are classified as other violent offenses."

This is consistent with my assumption that the BJS would include all killings with "malice aforethought" under the definition of murder. Let's now break down what the BJS's explanation of murder means.

Let's start with "malice aforethought." It's the mental state that distinguishes involuntary manslaughter from murder. Different states have different definitions of malice aforethought. For instance, in South Carolina, the term malice aforethought encompasses four different mental states: (1) intent to kill; (2) intent to inflict grievous bodily harm; (3) extremely reckless indifference to the value of human life (depraved heart murder); and (4) intent to commit a foreseeably dangerous felony (felony murder).

If a defendant kills a victim with malice aforethought, he can be convicted of murder. Some states, like South Carolina, have a single crime of murder. Other states distinguish first-degree-murder from second-degree murder.* In these latter states, the difference is premeditation. A killing with premeditation is first-degree murder. A killing without premeditation is second-degree murder. 

You might think that premeditation means that a person must have deliberated about a killing for hours or days before the fatal act. This is incorrect because premeditation doesn't need to take more than a few seconds. Indeed, in Maryland, a person can "snap," start strangling the victim, and still be deemed to have acted with premeditation.

Currently, thirty-one states and the federal government have the death penalty. In most states, the prosecution can seek the death penalty in first-degree murder cases as long as it can prove at least one aggravating factor beyond a reasonable doubt. Again, aggravating factors vary from state to state. Here's the list of aggravating circumstances in South Carolina, including the killing of a child and the killing of two or more persons. There's no right to bail for capital defendants under the U.S. Constitutions, and many states don't allow for bail for such defendants.

Voluntary manslaughter is a killing with malice aforethought, but the crime is downgraded based upon the defendant being able to establish two other factors: (1) provocation; and (2) lack of cooling off. Assume, for example, that a victim yells racial slurs and throws his drink at the defendant, who fatally shoots him. While this killing would ordinarily be murder, it could be downgraded to voluntary manslaughter based upon (1) provocation (slurs/thrown drink would inflame the passions of the average person); and (2) lack of cooling off (the passage of mere seconds or minutes between the provocation and the killing).

So, these are the crimes included in the BJS's definition of murder (non-negligent manslaughter and voluntary homicide are just different labels for voluntary manslaughter).

By way of contrast, involuntary manslaughter is a killing without malice aforethought. Some states define involuntary manslaughter as a reckless killing while others define it as a criminally negligent killing. A reckless killing is a killing that occurs when the defendant consciously disregards a substantial risk of serious bodily harm or death. Imagine a parent letting his young child play with his loaded gun. A criminally negligent killing is a killing that occurs when the defendant fails to be aware that he is creating a substantial risk of serious bodily harm or death. Imagine a parent who accidentally leaves the keys to his gun safe on his child's dresser.

Involuntary manslaughter is basically the same thing as negligent homicide, involuntary homicide, or vehicular manslaughter (which is also sometimes called reckless homicide). Attempted murder occurs when a person commits a substantial step/overt act in furtherance of an intentional plan  to kill a victim but fails (e.g., the gun misfires, or the bullet misses the victim). As the BJS has noted, these crimes are not classified as "murders" in its bail statistics.

So, where did that leave Adnan? I don't know. I figure a very high percentage of capital murder defendants are denied bail while a smaller percentage of voluntary manslaughter defendants are denied bail. Beyond that, I don't know.

According to this BJS Study, 10% of those convicted of murder are under age eighteen. Presumably, the percentage of those who are charged with murder and under eighteen is similar. As I've noted before, minors can't be given the death penalty. Ideally, we would have statistics regarding minors charged with first-degree murder who were and were not given release, but I don't think that they exist. I do know that Zack Witman was a minor represented by Cristina Gutierrez at the same time as Adnan who was given pretrial release despite being charged with first-degree murder. 

Otherwise...we'll see. I would love to see if minors with no priors who are charged with first-degree murder are denied bail with any frequency.


*Some states even have third-degree murder.



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This is great info. I think you're making a great case here, but let's not get side tracked, the issue here isn't just how much better your chances are if you're bailed in an ongoing investigation, but the fact that two dishonest detectives put forward a fraudulent piece of paperwork to a judge. I'm sure that's some sort of crime in itself.

Just for posterity, two detectives deliberately lied to the court, about a simple factual matter which they had no legitimate reason to be incorrect about.

They obviously felt this was significant enough to lie about it. That's the proof of how important it was. You can tell from their actions Adnan's case may have been different if he were bailed.

Posted by: Leon H | Jul 21, 2015 1:13:23 PM

Great points, Leon H.

I believe Zack Whitman got bail because he was white. Not brown and not Muslim. And not constantly referred to as Pakistani rather than American.

Posted by: Ella | Jul 21, 2015 2:56:18 PM

Hi Colin,

Any updates on Adnan's phone privileges? Has he regained those or is he still being penalized for the Serial recordings?

Any word on how he's doing?


Posted by: Jake | Jul 21, 2015 3:19:01 PM

Great addendum. I did think Susan let Adnan's first attorney off a little easy by not asking him questions about how he didn't correct the record that Adnan was in fact a minor at the first bail hearing. I realize it's difficult to ask challenging questions of friendly interviewees, but it's difficult for me to understand why the attorney didn't speak up when the judge referred to the case as a capital one.

Posted by: RR | Jul 21, 2015 4:46:12 PM

RR I keep thinking the same thing -why didn't someone jump up and immediately point out- he's a minor judge!? Wasnt that his job? Colin, you and Susan patiently try to explain so it all makes sense but sometimes I am still confused! Thank you for all you do!

Posted by: Elizabeth MM | Jul 21, 2015 10:22:46 PM

You say "According to this BJS Study, 10% of those convicted of murder are under age eighteen." Do know if that's age at conviction, charge or at the time the crime occurred? As there is often a gap of 6-18 months between crime and conviction this could make a huge difference to the statistics, especially as late teens are more likely than younger children to commit serious crimes.

Posted by: Alex | Jul 22, 2015 5:19:39 AM

Exactly! Why did his attorneys not jump up and scream - he's a minor!??? And why did this atty not comment on that? E/Inquiring Minds! Also, pertaining to EpiAdd7 (but not so much this Add to the Add), what was the layout of the West to East road that Mr. S was on? Was there a larger pull-off areas on both the North and South sides of the road or just the north side? That could be why he did that if it was North Side only. Also, and I asked on Twitter too, SS commented that she thinks Mr. S saw the gravesite at a much earlier time when the "dirt was newly disturbed." But, I thought we have come to the conclusion that no dirt was ever disturbed, that Hae was put in a depression and covered with rocks and debris. Now I'm confused again!

Posted by: fourhens | Jul 22, 2015 9:06:25 AM

Colin – I’m confused by the judge’s rationale for denying bail at the bail review…he states: “In the instant matter, the Court is concerned that, if given bail status, Petitioner will not appear for trial given he is charged with the most serious charge that can be placed against an individual. The Court finds that the risk of Petitioner's nonappearance at trial outweighs his lack of a criminal record, the strength of his family and community ties, and his life-long residency in Baltimore.” Surely that’s an argument for why no one should get bail for murder, not why Adnan specifically shouldn’t get it. But given the law does allow bail in murder cases, shouldn’t the judge have given a reason as to why Adnan specifically is a flight risk, not some generalised statement that anyone would be a flight risk given the severity of the charges, and so have bail denied? Is there a presumption that a client isn’t a flight risk until proven otherwise (similar to the presumption of innocence)? If so, the judge seems to have flipped that on its head, and assumed a risk. He doesn’t seem to agree with any of the specific reasons the state gives in support of flight risk status, and in fact agrees with the defence that the family support is a good thing – but nonetheless denies bail. What’s your opinion on that?

Posted by: Cupcake | Jul 22, 2015 10:06:32 AM

Might be the elephant in the room, but does anyone know if Mr. S. has any relationships or is acquainted with Jay or Jenn, or either of their family members?

Posted by: CareBear | Jul 22, 2015 10:11:57 AM

Based on the video posted on Rabia's blog I'm pretty sure that this is the location of the 'pull-off.'


I'm assuming that the concrete barriers may have been added more recently than the events of this case. Even without them, though, it really makes no sense to me that someone would park alongside the road here - as noted in the Addendum there's barely room for a car to be out of traffic much less inconspicuous.

Posted by: Silverlock | Jul 22, 2015 11:27:59 AM

CareBear - I haven't seen anything to link Jay or Jenn to Mr. S yet and I think Colin has said as much, but Mr. S was in the same prison at the same time as Ronald Lee Moore before Hae disappeared. Also, I think in Serial (or could have been an Undisclosed epi) it was mentioned that Mr. S's sister in-law was a teacher at Woodlawn High School.

Posted by: gc | Jul 22, 2015 12:52:58 PM

Colin - Any update on the State's response to the motion that Adnan entered in June? Did the court clarify how long they have to respond? I am sure they will stretch it out as long as the can.

Posted by: gc | Jul 22, 2015 1:20:05 PM

I'm also curious about when the State will reply to the motion to reopen. You've indicated that this is "uncharted territory," but is there any legal precedent or known rule of procedure to answer the question?

Posted by: streetwriter | Jul 22, 2015 4:14:13 PM

Wait. Mr. S's SIL was a teacher at Woodlawn. Any connection to Nicole's mom? I missed that and also the prison or I had forgotten. Does anyone have any other strange connections here or connections to Nicole's mom?

Posted by: fourhens | Jul 22, 2015 5:45:24 PM

Leon H: Yes, the capital crime thing was very much misguided. I would love to know what would have happened if the judge were initially correctly told that Adnan was a minor.

Ella; I would love to know if there are many cases in which juveniles with no prior are denied bail in murder cases.

Jake: No prisoner is allowed to have their phone calls recorded. As far as I know, Adnan is still allowed to use the phone.

RR, Elizabeth M, and fourhens: That was in the judge’s written order. I don’t know whether the judge made any oral statements about it being a capital case during the hearing. In response to the written order, is attorney appealed, noting the error.

Alex: That’s a good question. I don’t know.

Cupcake: Exactly. The judge’s order notes the seriousness of murder, but he doesn’t give any specific reasons why Adnan was a flight risk. Murder suspects are given bail, and I can’t think of any other factor that supported detention in this case.

Carebear: I don’t know.

Silverlock: It’s very odd that Mr. S pulled off where he did.

gc and streetwriter: Yes, I remember that from Serial. I have no idea when to expect the State’s response. I would guess in the next few weeks, but I don’t know.

Posted by: Colin Miller | Jul 23, 2015 8:09:41 AM

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