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4.2.12
WC: 191694

Attempted Murders: Killing a Corpse and the "Abraham Defense"

A case that involved both science and logic arose in the context of the attempted murder prosecution of a young man who had shot a corpse, believing that it was still alive. The case presented a series of perplexing scientific and logical riddles: When is a person who has been mortally wounded actually dead? Can you kill a man who is already dead? If not, can you attempt to kill a man who is already dead if you believe he is still alive.

My client had watched one acquaintance, who was having a disagreement with another acquaintance, shoot him in the heart. The shooter then asked my client to shoot the victim in the head, which he did. On the first appeal, which I argued in Brooklyn, the court reversed the murder conviction on the basis of scientific evidence that it was impossible to know whether the victim was alive or dead at the moment my client shot him in the head, since someone else had shot him in the heart just moments earlier. It ruled that the prosecution had not satisfied its burden of proving he was still alive when my client’s bullet shattered his brain. The court also ruled that my client could not be convicted of attempted murder, on the ground that since it is factually impossible to murder a corpse; it is also legally impossible to attempt to do that which it is factually impossible to do. On the second appeal, which I argued in Albany, the court agreed that my client could not be convicted of murder because "man dies but once," but it concluded that he should be convicted of attempted murder. I then brought a federal Habeus Corpus petition, and the federal court threw out the attempted murder conviction as well. My client went free. This intriguing case, which I wrote about in more detail The Best Defense, is taught today in many law schools as part of the standard course on criminal law. The issue of whether it is legally possible to attempt to do what is factually impossible—namely to kill a dead person—continues to confound new generations of law students.

Another attempted murder case presented a problem right out of the Bible. My client was accused of attempting to kill his sister’s former boyfriend. The boyfriend was suspected of burning down the sister’s house and burning her severely. She ultimately died of her painful burns, but while she was still alive, my client went to her former boyfriend’s home, held a knife over his chest and said he would kill him unless he admitted his role in the fire. The police burst into the apartment and disarmed my client before he could stab the former boyfriend. My client was convicted of attempting to kill the former boyfriend, and I was retained to argue the appeal.

I analogized the situation to the one described in the Book of Genesis when God told Abraham to sacrifice Isaac, and Abraham stood, knife in hand, ready to inflict the fatal wound when God’s angel came down and stopped him. I argued that we can never really know whether my client would actually have killed the boyfriend had the police not intervened, just as we can never know for sure whether Abraham would actually have complied with God’s command. There were other issues in the case as well and we won the appeal. The state declined to re-prosecute and this client too went free.

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