Murder and Attempted Murder

Pen. Code Sec. 187

Basics of a Murder Case
Murder is the causing of someone’s death with malice aforethought. “Malice” can be found in several ways, but is most commonly found by proof of intent to kill. There are many variations and two degrees to murder, each carrying a different punishment. The most notorious of these is murder with “special circumstances” which is punishable by life in prison without the possibility of parole, or by death. There are twenty one different special circumstances. Among these are lying in wait, murder of a police officer, murder by torture or bombing, killing done to silence a witness, or for financial gain, and a killing done in the act of committing a serious felony. This last, called “felony murder,” is charged if a death occurs during the commission of twelve possible felonies, including rape, robbery, arson, carjacking and burglary.
All other murder carries a life sentence with the possibility of parole after fifteen to twenty five years. Bear in mind, however, that parole is only granted to about ten percent of those eligible in any given year. If denied, a convict must wait another three years before he/she is eligible again.
There is no statute of limitations on murder, and the District Attorney has charged this crime thirty or more years after the alleged act.
A death penalty conviction is automatically appealed in State and Federal Court. Because of this, and because of the serious nature of this crime, murder cases can take years from the time charges are filed to a pronouncement of judgment or an acquittal is had. That is, if a plea agreement is not reached.
There are storied defenses to this crime, as old as the crime itself, such as self defense, or alibi. But this crime, like any other, has elements which must be proved. The prosecution must be able to present evidence of the alleged facts to supply such proof – beyond a reasonable doubt. Therefore, the battle ground of a murder case will be wherever there is any weakness in the evidence supporting the prosecution’s theory of the case.
The ultimate evidentiary battleground is usually a trial. Often murder cases proceed to trial because there is no acceptable offer on the table. Because a trial is decided by a jury of average people without any legal expertise, trial lawyers often depart from a technical and potentially tedious proof of facts. Instead, an artful trial lawyer can arouse a jury’s sense of justice, pity, or resentment in order to give greater credence to their case. It is not uncommon for the public to be surprised by a verdict in a closely watched murder trial – a public that knows the basic facts, but was not sitting in the jury box.
Some lawyers believe that the most important stage of a trial is the jury selection itself. Though it is impossible to know (because such a proposition is impossible to test) it is still safe to say that effectiveness at trial is as much an art as a science.
Attempted murder is often charged in an aggravated assault case, where the potential for death was present. Conviction of an attempted crime typically carries half the sentence of the completed crime. Attempted first degree murder will still carry a life sentence with an earlier possible parole date.  Attempted second degree murder carries up to a nine year sentence.
Attempted murder is charged in a serious assault case because the punishment is harsher. This will have a greater likelihood of ending in a plea bargain as few people have the stomach to endure a trial with a life sentence in the balance. Also, the prosecution can charge the “lesser included” crimes of aggravated assault or battery along with the attempted murder. Thus, they have little to lose if the jury acquits on the attempted murder charge and convicts on the assault which is all the case was to begin with. For this reason, all crimes are often charged based on the most serious possible interpretation of the facts, and not the most likely.
On the other hand, overcharging a criminal defendant can backfire. I have received acquittals on lesser charged offenses – offenses for which my client was arguably guilty – when the jury returned a “not guilty” on more serious, but less certain, charges.