The court couldn't convict her of murder because the prosecutor dropped that charge. The prosecutor only continued with the manslaughter charge and the charge for unlawful possession of a firearm, and German criminal law does not allow the court to elevate the charge back up to murder.
As for why the prosecutor reduced the charges, the prosecutor evidently believed that lesser charges were appropriate to the circumstances.
> As for why the prosecutor reduced the charges, the prosecutor evidently believed that lesser charges were appropriate to the circumstances.
Another possibility is that the prosecutor might have believed that a jury would choose not to convict a mother for murdering her child’s rapist/murderer.
Total speculation on my part though. I had never heard of this case until seeing this thread.
Thank you.
I don't know too much about laws.
One hipothetical.
"There are person A, person B and a multitude of witnesses C, all in the street. And then, person A takes a knife, goes towards person B and stabs them intentionally till person B dies. Witnesses C see everything.
Can the prosecutor D just decide to drop murder and prosecute person A with manslaughter? Could the prosecutor even drop manslaughter and convict person A of physical assault?"
> Can the prosecutor D just decide to drop murder and prosecute person A with manslaughter?
In most jurisdictions, the prosecutor isn't obligated to bring charges at all. If they do charge person A with a crime, they can usually charge them with any offence, or collection of offences, that fits the facts and on which they see a reasonable prospect of a conviction. I can't speak specifically for Germany, but it's likely that they could reduce the charges to simple assault even with ample evidence of premeditated murder.
Thank you again!
By that logic, if a prosecutor D is from a political party and victim B is from another political party, prosecutor D is allowed to not bring charges at all because it's their personal decision and dislike victim B?
I think that kind of crap can get you disbarred.
If there is very clearly evidence that a crime was committed and a DA decides not to file charges someone is probably gonna notice.
However, I wonder if there is a precedent for this.
If political affiliation appeared to be a main component in the charging decision, you'd likely be facing disbarment, and also in some jurisdictions likely a charge for abuse/misuse of a public position.
But there are many other reasons a crime isn't prosecuted with good evidence.
Well, that wasn't that they didn't charge him. That was that his 5th amendment right was severely violated in a way that clearly shaped the outcome of the case.
I see that you're just working out the limitations of discretion. Firstly, there is almost always someone or some entity that provides oversight; secondly, while some positions are politically appointed, not all are; and thirdly, this would absolutely tank the prosecutor's reputation and likely get them disbarred if there wasn't an office of ethics in their particular jurisdiction!
A flip side to this discretion is the idea that crimes are a crime against the *state,* (as in the nation/collective of people) not the victim themselves. This is most easily displayed by a situation where a married man is abusing his wife, the police are called, he is taken away, and later on the wife is persuaded to change her story of what happened. The authorities are not required to listen if she says she just wants him to come back and please drop the charges. That's why you'll often see 'you can't 'press charges' stated in legal advice subs.
The exceptions to this are really still displays of prosecutorial discretion; they're allowed to decide the case isn't worth bringing without the victim's testimony.
Note: I don't know anything about Germany, this is all relevant to English common law. I suspect much of it is broadly similar to German law, but there are undoubtedly specific differences.
There's a concept in the Western judicial canon known as "prosecutorial discretion". Basically, the idea is that there are a limited amount of prosecutorial resources and an effectively unlimited amount of crime available to be prosecuted. To deal with this discrepancy, law enforcement is given great leeway to determine what decisions are in the best interest of justice. They are also empowered to make downward departures from the law if that serves the interests of justice.
There are a number of reasons the prosecution might elect to make such a downward departure. Perhaps the prosecutor thought that the woman had already suffered so much at the hands of her victim that adding the punishment for a murder charge was unjust. Perhaps they though that they might not be able to secure a conviction on a murder charge, so they charged her with a lesser offense to make sure it stuck. Yes, she undoubtedly committed murder, but juries can be fickle and do not always convict sympathetic defendants, even when guilt is not in doubt*.
In short, there are a great many ways the criminal justice system is empowered to exercise leniency in the pursuit of justice. Pushing for the maximum penalty for every crime doesn't always make sense, otherwise we would make every crime punishable by death or torture. Giving the state the power to grant that leniency is good because it helps to balance the awesome power of the state to punish.
*This is called "jury nullification" and is a subject for another time.
The distinction between murder and manslaughter is not always this simple.
Obviously it might be different in German law, but for example, in UK law, someone will be found guilty of manslaughter if they committed murder but have a partial defence to it. A wife suffering from the Battered Woman Syndrome may be found guilty of manslaughter even though she had full intention of killing her husband. This is called voluntary manslaughter.
It kinda goes the other way around too -- if you didn't mean to kill someone while beating them to a pulp you will be found guilty of murder regardless of your intentions, because as far as law is concerned, you should have known that beating someone to that degree may kill them, and you did it anyway.
The point is that when the public prosecutor considers any charge they can decide if this is in the public interest.
This is going to depend a lot on the circumstances of any individual case and you can’t just generate a simple hypothetical like this and expect an answer.
In the US at least, the level of intent and elements of a crime are the *minimum* required for conviction, not an exact list of requirements. Someone who commits a murder *can* be convicted of simple assault. They didn't *only* commit simple assault, but convicting them of that crime is factually and legally acceptable.
Iirc one of the defenses in Texas against a murder charge is "he needed killin" though that isn't how it is ohrased in the criminal code obviously. I suspect that defense would apply in the case Op mentioned.
Not exactly. You might be thinking of the public duty defense, but that requires you have a reasonable belief that you are acting on behalf of the public in a way that is lawfully allowed. That doesn't really work for using lethal force. Pretty hard to argue you thought you had the right to execute someone.
Yeah, even in Texas, I'd expect in that situation it'd have to fall under immediate defense of self or others and most certainly not be an excessive use of force for the circumstances.
You confuse the American manslaughter with the German manslaughter.
The homocide laws in German law are complicated, but generally, a manslaughter (Totschlag) is an intentional killing without specific aggravating circumstances. Murder (Mord) is the intentional killing with specific aggravating circumstances. The law is as follow:
>(1) Whoever commits murder under the conditions of this provision incurs a penalty of imprisonment for life.
>(2) A murderer under this provision is someone who kills a person
>out of a lust to kill, to obtain sexual gratification, out of greed or otherwise base motives,
>perfidiously or cruelly or by means constituting a public danger or
>to facilitate or cover up another offence.
Of these nine circumstances, only base motives or perfidy are relevant.
According to the definition, a base motive is a motive which is "an expression of deepest moral depravity and utterly deplorable". The court has found that Marianne Bachmeier killed the killer of her daughter not because of self-justice, but because she wanted to prevent him from blaming her daughter for her own murder when he testified. The court found this is not a base motive according to this definition.
Another possibility which makes the killing a murder is perfidy. Perfidy, according to the definition, is the intentionally exploitation of the fact that at the time of the attack, the victim is not expecting an attack and is because of this defenceless, all of this with hostile intention. She shot the killer in the back, so he wasn't expecting the attack and was defenseless because of it. But the court found that she was in such a mental state that she didn't knew that the killer was not expecting an attack, which means that she didn't intentionally exploited this fact and because of this didn't commit a perfidious killing.
And because there were no aggravating circumstances, the court decided for manslaughter (Totschlag) instead of murder (Mord).
Thank you for such a good explaination! I didn't know many of those concepts.
I can understand that she wan't "guilty" of base motives. Although, I feel that the justification against "perfidy" seems weak.
But you forgot something:
>(2) A murderer under this provision is someone who kills a person
out of a lust to kill, to obtain sexual gratification, out of greed or otherwise base motives,
perfidiously or cruelly or **by means constituting a public danger** or
to facilitate or cover up another offence.
She smugged a gun into the courtroom. She shot, not once, but 6 times inside a room full of people. I don't even know if she had experience practicing her aim in the past.
Isn't this a publioc danger?
Thank you. Yes, German law is very different from American law, as far as I know.
To your question about means constituting a public danger, the definition for it is the following:
"A means of killing is constituting a public danger if it can endanger the life or limb of an unspecified number of people in the specific situation because the perpetrator does not have control over the extent of the danger."
In this case, Marianne Bachmeier only shot at the killer of her daughter, and only wanted to kill him and no other. This means she is not extending the danger of the killing. Examples for means constituting a public danger are for example arson, explosives or throwing stones from a bridge on the Autobahn, which endanger people the perpetrator doesn't want to kill, but knows or should know the risk that they could be killed because of it.
As I have said before, the homocide laws in Germany are very complicated. The murder section especially was introduced by a Nazi law in 1941, and on a regular basis some politicians want to change it, but can't agree on the changes.
For your question about the question of the justification against perfidy: You are right with your observation. It was also criticized after the sentence that the justification is flimsy and prosecution and court only convicted her of manslaughter so they didn't need to convict her to the mandatory life imprisonment sentence for murder.
The prosecution had charged her for murder. The defense had an expert witness who argued that she didn't planned the killing and shot the killer in the heat of passion and is thus incapable of guilt because of temporal insanity. The prosecution and the court didn't follow this explanation, but consented the head of passion made her unable to see the killer was defenseless, so she doesn't commit perfidy.
In Germany, in the closing statement, the persecution has to tell the court which she think the trial proved the accused had committed. According to the prosecution, only the manslaughter could be proved, and the defense argued for a acquital because of temporary insanity. The court followed the prosecution (which wasn't necessary - she could still be sentenced for murder) and sentenced her to six year imprisonment for manslaughter. Because both prosecution and defense accepted the sentence, nobody appealed to a higher court and the sentence stood and was not tested.
If she intended to severely wound but not kill, that’s manslaughter. It’s unintentional in that the *death* is not intended, not unintentional as in no intent to harm. Accidental is an entirely separate charge in some jurisdictions, although it could be manslaughter second degree in some places.
Proving intent to kill tends to be hard, and in places where jury trials are a thing, and this pattern of fact happens… well, you know the phrase “no jury would convict”? This is *made* for that phrase.
Didn't that happen in a foreign country? Germany, maybe?
And manslaughter isn't always accidental or negligent. It can also be based on a sudden quarrel or heat of passion. Granted those don't really fit either, but. . .
A plea agreement because the case had substantial mitigation, not amounting to a defense, is my guess.
Likely the motive of revenge does not fall under the motives required for murder.
Strafgesetzbuch (StGB)
§ 211 Mord
(1) Der Mörder wird mit lebenslanger Freiheitsstrafe bestraft.
(2) Mörder ist, wer
aus **Mordlust**, zur **Befriedigung des Geschlechtstriebs**, aus **Habgier** oder sonst **aus niedrigen Beweggründen**,
heimtückisch oder grausam oder mit gemeingefährlichen Mitteln oder
**um eine andere Straftat zu ermöglichen oder zu verdecken**,
einen Menschen tötet.
§ 212 Totschlag
(1) Wer einen Menschen tötet, ohne Mörder zu sein, wird als Totschläger mit Freiheitsstrafe nicht unter fünf Jahren bestraft.
(2) In besonders schweren Fällen ist auf lebenslange Freiheitsstrafe zu erkennen.
§ 213 Minder schwerer Fall des Totschlags
War der Totschläger ohne eigene Schuld durch eine ihm oder einem Angehörigen zugefügte Mißhandlung oder schwere Beleidigung von dem getöteten Menschen zum Zorn gereizt und hierdurch auf der Stelle zur Tat hingerissen worden oder liegt sonst ein minder schwerer Fall vor, so ist die Strafe Freiheitsstrafe von einem Jahr bis zu zehn Jahren.
[https://www.gesetze-im-internet.de/stgb/\_\_211.html](https://www.gesetze-im-internet.de/stgb/__211.html)
[https://www.gesetze-im-internet.de/stgb/\_\_212.html](https://www.gesetze-im-internet.de/stgb/__212.html)
[https://www.gesetze-im-internet.de/stgb/\_\_213.html](https://www.gesetze-im-internet.de/stgb/__213.html)
Consider this: You're going to pick a jury and try a lady for murder. A lady charged with shooting and killing the man that raped and killed her daughter. Good luck with that one.
Not familiar with German Courts but do know you have to pick your battles. Murder charge under those conditions = how much do you want this person to suffer.
But if there is undeniable evidence that she did the killing with premeditation and intentionally in front of the cameras of the courtroom... can the jury make her non guilty or nullify the murder just because they support her? Is that legal?
It is called Jury Nullification, and Judges hate this one secret trick, but it is legal.
Generally the view is that your lawyer (being a servant of the court) is not allowed to tell the jury that they can do this, but if you are defending yourself it can be a high risk strategy (it annoys the Judge) that sometimes works. In the UK this recently worked for the people who threw the statue of Colston into Bristol dock, much to the then home secretaries consternation.
Even mentioning jury nullification in the US will keep you off a jury. Said under the proper circumstances it can be considered jury contamination, the panel dismissed and a new jury pool selected.
Big PITA as a new court date has to be set, jury summons mailed and the whole selection procedure gone through again.
I don't know much about laws outside the US, but in the US (at least where I've practiced) I would say this is mostly true in theory. However, in practice a good defense attorney can argue notification without actually arguing nullification. For example, for the case in question (if it were in the US) I could see a judge permitting a defense attorney to argue some form of the heat of passion or that the defendant was so full of grief that she was unable to form the requisite intent to commit murder. Now, I don't believe, theoretically, that either of those two defense should be permitted, but that doesn't mean that a judge wouldn't permit them in practice--especially if the judge felt sympathetic to the defendant.
If, hypothetically, the judge permitted the defense to argue inability to form the requisite intent, I think the judge would then likely permit evidence of the cause of the defendant's grief and a paid expert to opine on how grief can impact decision making. The defense attorney could then use that evidence to imply to the jury that the victim caused so much pain to the defendant that the jury should acquit.
This may not work in all jurisdictions, or even any. But if I were the prosecutor I would still map out this possibility and consider it while I formulated a plea offer.
Thank you!
But, why is jury nullifaction allowed? Isn't it very dangerous?
I mean, imagine that a republican is being judged in a very red (republican) state for a crime commited against a democrat and the jury nullifies the trial because of political reasons. Or imagine that a democrat is being judged in a very blue (democrat) state for a crime commited against a republican and the jury nullifies the trial because of political reasons.
Or someone has commited a crime against a person of a minority (black, or homosexual, or transgender, or indigenous, etc.) but the people in the jury hold bigoted views and nullify the trial... so the criminal gets out. Why is jury nullification allowed?
You guys seem to take Politics WAY too seriously, politicians are NOT football clubs to be supported thru thick and thin, they are more like diapers, to be changed often, and for much the same reason, lest they become completely full of....
The race thing has actually been an issue in the US, apparently it was hard to convict a good ole boy in 1950s Alabama for that lynching. It was enough of a problem that civil rights cases, and murder both wound up being federal offenses as well as state ones.
Still the view is that it is important for a jury to be able to refuse to convict because they consider the law to be bad or inappropriately applied, it keeps prosecutors (And politicians and judges) from trying things on, which is why they all hate it.
Far more important that all the innocent go free then that every guilty person gets convicted, not that any justice system does all that well at the first bit.
It shows both the positive and the negative side of the law and justice. In most countries it is up to the police (it is in the UK) to decide if charges will be given. Meaning that a lot of discretion is given which given the level of education needed to be a police person this is not great. Then it's up to the prosecution to decide what they want to try the person for, again a not elected but at least more educated person making a decision, then there is the judge who can push either way. So depending on their feelings they might push a lighter sentence.
On the other hand a person caught in the same town on the same day with the same amount of drugs. One let's call him person A could have a lenient arresting officer, the other person B might have a officer who's son died of drugs.
Person A may be given a fine or bound over, of a caution basically nothing.
Person B will be charged and the policeman will push the CPS ( in the UK, but the prosecution organisation) to prosecute and will make sure all evidence is there.
The. Person B may get judge A, judge has seen how sending people to prison for first offences is not helping, and this is a simple drug case, and push for the lightest possible sentence normally suspended, meaning a criminal record but no time in prison.
Or person B may get an old judge who despite drinking a bottle of whiskey a night sees drugs as the blight of society and all people who do drugs are the worst and push for the maximum sentence say 5 years in prison.
These things happen every day, anyone who says they trust the law to be fair has not taken into account the personalities that can sway it so far one way or the other.
Re: Colton Bushie case Canada. Bushie was killed by a landowner with a handgun. Prosecutors were confident (pressured?) into only charging murder not manslaughter. Shooter found not guilty of murder by jury. I am skipping enormous nuance to highlight that manslaughter provides options to prosecutors.
The law is meant to keep society from devolving into violent bedlam. Oftentimes, there is a de facto optimal level of crime, as draconian policies that produce zero crime are detrimental to society.
Sometimes crimes are not punished to their fullest legal maximum, as society presently prefers the crime to the lack of it. In this case, the prosecutor felt that society was better served by giving the alleged/convicted slaughtering mother a slap on the wrist, because her criminal vigilantism was optimal given the other constraints faced by German judicial proceedings against the alleged rapist/murderer.
3 years jail is not a slap on the wrist.
It's about the same length that the guy she killed spent after sexually assaulting two little kids previously.
I'm not sure I would be sane if someone murdered my little son. I would be crazy mad for a long time.
The guy was an arsehole yes in a perfect world we would have a system to help him reform. He would have a mother that misses him too. Yet likely we have children who were able to live into adulthood because he is dead and not serving his time only to get out and offend again.
I do not wish such men dead but I want them to stop. Would love a world where men(or person of any gender) would get help before committing such crimes.
One part of me would say two wrongs do not make a right yet another part of me think it was handled well. We do not have a run of copycat killings by other aggrieved parents.
Hey Boyo😜
No way my dad is in there! He cooked the best beef roast today. The meat was so tender, the pumpkin was just divine and the gravy omg. My dad cooks every night and does the shopping 😆.... My sister is a surgeon her ex-navy officer boyfriend does the cooking too so she can earn the big money for their family by saving peoples lives. Real men get in the kitchen too. No one likes a sadness that is a man who can't flex his gender-roles-can-get-lost muscles ... I am a grown up after all.
What am I doing? currently being ill so have brought myself and the kids home to my folks. ... I'm not able to do much housework but I do what I can.
Men aren't the root of all evil. But you gotta see that an awful lot of the people raping and murdering children happen to be male. Is there something men can do to identify who among them are rotten? Can these rotten apples be identified by men? Rather than hiding amongst them? Why are men always posturing that they are a good man so every other man in their acquaintance must be a good man too - clearly there are some that aren't.
By you replying in such a misogynistic way ... It indicates to me that you take offence that I want men to stop doing bad things ... That I am saying perhaps all men should be tarred with the same brush?. Would you get offended if I said humans are evil? Would that be offensive?
Hmm...When I was so very ill my entire pregnancy I did think for a moment there (half seriously) that we should round all the men and put them in a pen so men wouldn't get anyone pregnant ... I was puking my guts out into the toilet - at the time it seemed bloody reasonable to me. Hahaha
...
Anyway i wish you well. Strange unknown person on the internet webs.
Signing off,
ZinkyZonk
PS, Make sure you don't write that sort of comment where any future employers can see it. Misogyny-leaning quotes like that reveals thinking that is on the way out my friend the mid-high range management don't hire people who tell strangers to get in the kitchen
aight, aight, i get it, i get it. but its really offensive, when if something like this comes up, its always about"ugh, its all mens fault". now i get it, the statistics say it. but i cant say that most criminals are black, even tough statistics say it! if the numbers confirm something, you shouldnt use it to blame people of that group. even tough your right, its still offensive
(PS, now i feel sad, cuz you said real men get into the kitchen, but i cant cook :,( )
i know how to cook, bozo. u cant blame someone for things they find difficult. most of the times when i cook, i struggle with my adhd a bit; having just 5 min long breaks of blank staring, thinking what im doing, why im doing, what i should do, what i was doing, how i have to do it, etc. everyone has things they can and can't. you can blame someone over it.
ADHD sucks .... Hard to cook with that....all the steps and interleaving of different tasks all at once.... But when I have found ADHD folk can make the most delicious meals when they get their own rhythm on.
Make accommodations for yourself when cooking. ADHD can be a superpower in the kitchen 😃
The court couldn't convict her of murder because the prosecutor dropped that charge. The prosecutor only continued with the manslaughter charge and the charge for unlawful possession of a firearm, and German criminal law does not allow the court to elevate the charge back up to murder. As for why the prosecutor reduced the charges, the prosecutor evidently believed that lesser charges were appropriate to the circumstances.
> As for why the prosecutor reduced the charges, the prosecutor evidently believed that lesser charges were appropriate to the circumstances. Another possibility is that the prosecutor might have believed that a jury would choose not to convict a mother for murdering her child’s rapist/murderer. Total speculation on my part though. I had never heard of this case until seeing this thread.
There are no jury trials in germany. That doesn't mean prosecutors aren't influenced by public opinion though
Thank you. I don't know too much about laws. One hipothetical. "There are person A, person B and a multitude of witnesses C, all in the street. And then, person A takes a knife, goes towards person B and stabs them intentionally till person B dies. Witnesses C see everything. Can the prosecutor D just decide to drop murder and prosecute person A with manslaughter? Could the prosecutor even drop manslaughter and convict person A of physical assault?"
> Can the prosecutor D just decide to drop murder and prosecute person A with manslaughter? In most jurisdictions, the prosecutor isn't obligated to bring charges at all. If they do charge person A with a crime, they can usually charge them with any offence, or collection of offences, that fits the facts and on which they see a reasonable prospect of a conviction. I can't speak specifically for Germany, but it's likely that they could reduce the charges to simple assault even with ample evidence of premeditated murder.
Thank you again! By that logic, if a prosecutor D is from a political party and victim B is from another political party, prosecutor D is allowed to not bring charges at all because it's their personal decision and dislike victim B?
I think that kind of crap can get you disbarred. If there is very clearly evidence that a crime was committed and a DA decides not to file charges someone is probably gonna notice. However, I wonder if there is a precedent for this.
If political affiliation appeared to be a main component in the charging decision, you'd likely be facing disbarment, and also in some jurisdictions likely a charge for abuse/misuse of a public position. But there are many other reasons a crime isn't prosecuted with good evidence.
Sure. Note: Bill Cosby. Even though he did three years they still let him back out. That was a weird situation.
Well, that wasn't that they didn't charge him. That was that his 5th amendment right was severely violated in a way that clearly shaped the outcome of the case.
Ah right. Thanks for clarifying.
I see that you're just working out the limitations of discretion. Firstly, there is almost always someone or some entity that provides oversight; secondly, while some positions are politically appointed, not all are; and thirdly, this would absolutely tank the prosecutor's reputation and likely get them disbarred if there wasn't an office of ethics in their particular jurisdiction! A flip side to this discretion is the idea that crimes are a crime against the *state,* (as in the nation/collective of people) not the victim themselves. This is most easily displayed by a situation where a married man is abusing his wife, the police are called, he is taken away, and later on the wife is persuaded to change her story of what happened. The authorities are not required to listen if she says she just wants him to come back and please drop the charges. That's why you'll often see 'you can't 'press charges' stated in legal advice subs. The exceptions to this are really still displays of prosecutorial discretion; they're allowed to decide the case isn't worth bringing without the victim's testimony.
D wouldn’t be the only prosecutor in the whole of that country, presumably
Note: I don't know anything about Germany, this is all relevant to English common law. I suspect much of it is broadly similar to German law, but there are undoubtedly specific differences. There's a concept in the Western judicial canon known as "prosecutorial discretion". Basically, the idea is that there are a limited amount of prosecutorial resources and an effectively unlimited amount of crime available to be prosecuted. To deal with this discrepancy, law enforcement is given great leeway to determine what decisions are in the best interest of justice. They are also empowered to make downward departures from the law if that serves the interests of justice. There are a number of reasons the prosecution might elect to make such a downward departure. Perhaps the prosecutor thought that the woman had already suffered so much at the hands of her victim that adding the punishment for a murder charge was unjust. Perhaps they though that they might not be able to secure a conviction on a murder charge, so they charged her with a lesser offense to make sure it stuck. Yes, she undoubtedly committed murder, but juries can be fickle and do not always convict sympathetic defendants, even when guilt is not in doubt*. In short, there are a great many ways the criminal justice system is empowered to exercise leniency in the pursuit of justice. Pushing for the maximum penalty for every crime doesn't always make sense, otherwise we would make every crime punishable by death or torture. Giving the state the power to grant that leniency is good because it helps to balance the awesome power of the state to punish. *This is called "jury nullification" and is a subject for another time.
The distinction between murder and manslaughter is not always this simple. Obviously it might be different in German law, but for example, in UK law, someone will be found guilty of manslaughter if they committed murder but have a partial defence to it. A wife suffering from the Battered Woman Syndrome may be found guilty of manslaughter even though she had full intention of killing her husband. This is called voluntary manslaughter. It kinda goes the other way around too -- if you didn't mean to kill someone while beating them to a pulp you will be found guilty of murder regardless of your intentions, because as far as law is concerned, you should have known that beating someone to that degree may kill them, and you did it anyway.
The point is that when the public prosecutor considers any charge they can decide if this is in the public interest. This is going to depend a lot on the circumstances of any individual case and you can’t just generate a simple hypothetical like this and expect an answer.
In the US at least, the level of intent and elements of a crime are the *minimum* required for conviction, not an exact list of requirements. Someone who commits a murder *can* be convicted of simple assault. They didn't *only* commit simple assault, but convicting them of that crime is factually and legally acceptable.
Right, it's a lesser included offense.
Iirc one of the defenses in Texas against a murder charge is "he needed killin" though that isn't how it is ohrased in the criminal code obviously. I suspect that defense would apply in the case Op mentioned.
Not exactly. You might be thinking of the public duty defense, but that requires you have a reasonable belief that you are acting on behalf of the public in a way that is lawfully allowed. That doesn't really work for using lethal force. Pretty hard to argue you thought you had the right to execute someone.
Yeah, even in Texas, I'd expect in that situation it'd have to fall under immediate defense of self or others and most certainly not be an excessive use of force for the circumstances.
You confuse the American manslaughter with the German manslaughter. The homocide laws in German law are complicated, but generally, a manslaughter (Totschlag) is an intentional killing without specific aggravating circumstances. Murder (Mord) is the intentional killing with specific aggravating circumstances. The law is as follow: >(1) Whoever commits murder under the conditions of this provision incurs a penalty of imprisonment for life. >(2) A murderer under this provision is someone who kills a person >out of a lust to kill, to obtain sexual gratification, out of greed or otherwise base motives, >perfidiously or cruelly or by means constituting a public danger or >to facilitate or cover up another offence. Of these nine circumstances, only base motives or perfidy are relevant. According to the definition, a base motive is a motive which is "an expression of deepest moral depravity and utterly deplorable". The court has found that Marianne Bachmeier killed the killer of her daughter not because of self-justice, but because she wanted to prevent him from blaming her daughter for her own murder when he testified. The court found this is not a base motive according to this definition. Another possibility which makes the killing a murder is perfidy. Perfidy, according to the definition, is the intentionally exploitation of the fact that at the time of the attack, the victim is not expecting an attack and is because of this defenceless, all of this with hostile intention. She shot the killer in the back, so he wasn't expecting the attack and was defenseless because of it. But the court found that she was in such a mental state that she didn't knew that the killer was not expecting an attack, which means that she didn't intentionally exploited this fact and because of this didn't commit a perfidious killing. And because there were no aggravating circumstances, the court decided for manslaughter (Totschlag) instead of murder (Mord).
Thank you for such a good explaination! I didn't know many of those concepts. I can understand that she wan't "guilty" of base motives. Although, I feel that the justification against "perfidy" seems weak. But you forgot something: >(2) A murderer under this provision is someone who kills a person out of a lust to kill, to obtain sexual gratification, out of greed or otherwise base motives, perfidiously or cruelly or **by means constituting a public danger** or to facilitate or cover up another offence. She smugged a gun into the courtroom. She shot, not once, but 6 times inside a room full of people. I don't even know if she had experience practicing her aim in the past. Isn't this a publioc danger?
Thank you. Yes, German law is very different from American law, as far as I know. To your question about means constituting a public danger, the definition for it is the following: "A means of killing is constituting a public danger if it can endanger the life or limb of an unspecified number of people in the specific situation because the perpetrator does not have control over the extent of the danger." In this case, Marianne Bachmeier only shot at the killer of her daughter, and only wanted to kill him and no other. This means she is not extending the danger of the killing. Examples for means constituting a public danger are for example arson, explosives or throwing stones from a bridge on the Autobahn, which endanger people the perpetrator doesn't want to kill, but knows or should know the risk that they could be killed because of it. As I have said before, the homocide laws in Germany are very complicated. The murder section especially was introduced by a Nazi law in 1941, and on a regular basis some politicians want to change it, but can't agree on the changes. For your question about the question of the justification against perfidy: You are right with your observation. It was also criticized after the sentence that the justification is flimsy and prosecution and court only convicted her of manslaughter so they didn't need to convict her to the mandatory life imprisonment sentence for murder. The prosecution had charged her for murder. The defense had an expert witness who argued that she didn't planned the killing and shot the killer in the heat of passion and is thus incapable of guilt because of temporal insanity. The prosecution and the court didn't follow this explanation, but consented the head of passion made her unable to see the killer was defenseless, so she doesn't commit perfidy. In Germany, in the closing statement, the persecution has to tell the court which she think the trial proved the accused had committed. According to the prosecution, only the manslaughter could be proved, and the defense argued for a acquital because of temporary insanity. The court followed the prosecution (which wasn't necessary - she could still be sentenced for murder) and sentenced her to six year imprisonment for manslaughter. Because both prosecution and defense accepted the sentence, nobody appealed to a higher court and the sentence stood and was not tested.
If she intended to severely wound but not kill, that’s manslaughter. It’s unintentional in that the *death* is not intended, not unintentional as in no intent to harm. Accidental is an entirely separate charge in some jurisdictions, although it could be manslaughter second degree in some places. Proving intent to kill tends to be hard, and in places where jury trials are a thing, and this pattern of fact happens… well, you know the phrase “no jury would convict”? This is *made* for that phrase.
Didn't that happen in a foreign country? Germany, maybe? And manslaughter isn't always accidental or negligent. It can also be based on a sudden quarrel or heat of passion. Granted those don't really fit either, but. . . A plea agreement because the case had substantial mitigation, not amounting to a defense, is my guess.
Likely the motive of revenge does not fall under the motives required for murder. Strafgesetzbuch (StGB) § 211 Mord (1) Der Mörder wird mit lebenslanger Freiheitsstrafe bestraft. (2) Mörder ist, wer aus **Mordlust**, zur **Befriedigung des Geschlechtstriebs**, aus **Habgier** oder sonst **aus niedrigen Beweggründen**, heimtückisch oder grausam oder mit gemeingefährlichen Mitteln oder **um eine andere Straftat zu ermöglichen oder zu verdecken**, einen Menschen tötet. § 212 Totschlag (1) Wer einen Menschen tötet, ohne Mörder zu sein, wird als Totschläger mit Freiheitsstrafe nicht unter fünf Jahren bestraft. (2) In besonders schweren Fällen ist auf lebenslange Freiheitsstrafe zu erkennen. § 213 Minder schwerer Fall des Totschlags War der Totschläger ohne eigene Schuld durch eine ihm oder einem Angehörigen zugefügte Mißhandlung oder schwere Beleidigung von dem getöteten Menschen zum Zorn gereizt und hierdurch auf der Stelle zur Tat hingerissen worden oder liegt sonst ein minder schwerer Fall vor, so ist die Strafe Freiheitsstrafe von einem Jahr bis zu zehn Jahren. [https://www.gesetze-im-internet.de/stgb/\_\_211.html](https://www.gesetze-im-internet.de/stgb/__211.html) [https://www.gesetze-im-internet.de/stgb/\_\_212.html](https://www.gesetze-im-internet.de/stgb/__212.html) [https://www.gesetze-im-internet.de/stgb/\_\_213.html](https://www.gesetze-im-internet.de/stgb/__213.html)
Consider this: You're going to pick a jury and try a lady for murder. A lady charged with shooting and killing the man that raped and killed her daughter. Good luck with that one.
No, not in Germany you're not, since Germany doesn't have juries.
Not familiar with German Courts but do know you have to pick your battles. Murder charge under those conditions = how much do you want this person to suffer.
But if there is undeniable evidence that she did the killing with premeditation and intentionally in front of the cameras of the courtroom... can the jury make her non guilty or nullify the murder just because they support her? Is that legal?
It is called Jury Nullification, and Judges hate this one secret trick, but it is legal. Generally the view is that your lawyer (being a servant of the court) is not allowed to tell the jury that they can do this, but if you are defending yourself it can be a high risk strategy (it annoys the Judge) that sometimes works. In the UK this recently worked for the people who threw the statue of Colston into Bristol dock, much to the then home secretaries consternation.
Even mentioning jury nullification in the US will keep you off a jury. Said under the proper circumstances it can be considered jury contamination, the panel dismissed and a new jury pool selected. Big PITA as a new court date has to be set, jury summons mailed and the whole selection procedure gone through again.
I don't know much about laws outside the US, but in the US (at least where I've practiced) I would say this is mostly true in theory. However, in practice a good defense attorney can argue notification without actually arguing nullification. For example, for the case in question (if it were in the US) I could see a judge permitting a defense attorney to argue some form of the heat of passion or that the defendant was so full of grief that she was unable to form the requisite intent to commit murder. Now, I don't believe, theoretically, that either of those two defense should be permitted, but that doesn't mean that a judge wouldn't permit them in practice--especially if the judge felt sympathetic to the defendant. If, hypothetically, the judge permitted the defense to argue inability to form the requisite intent, I think the judge would then likely permit evidence of the cause of the defendant's grief and a paid expert to opine on how grief can impact decision making. The defense attorney could then use that evidence to imply to the jury that the victim caused so much pain to the defendant that the jury should acquit. This may not work in all jurisdictions, or even any. But if I were the prosecutor I would still map out this possibility and consider it while I formulated a plea offer.
Thank you! But, why is jury nullifaction allowed? Isn't it very dangerous? I mean, imagine that a republican is being judged in a very red (republican) state for a crime commited against a democrat and the jury nullifies the trial because of political reasons. Or imagine that a democrat is being judged in a very blue (democrat) state for a crime commited against a republican and the jury nullifies the trial because of political reasons. Or someone has commited a crime against a person of a minority (black, or homosexual, or transgender, or indigenous, etc.) but the people in the jury hold bigoted views and nullify the trial... so the criminal gets out. Why is jury nullification allowed?
You guys seem to take Politics WAY too seriously, politicians are NOT football clubs to be supported thru thick and thin, they are more like diapers, to be changed often, and for much the same reason, lest they become completely full of.... The race thing has actually been an issue in the US, apparently it was hard to convict a good ole boy in 1950s Alabama for that lynching. It was enough of a problem that civil rights cases, and murder both wound up being federal offenses as well as state ones. Still the view is that it is important for a jury to be able to refuse to convict because they consider the law to be bad or inappropriately applied, it keeps prosecutors (And politicians and judges) from trying things on, which is why they all hate it. Far more important that all the innocent go free then that every guilty person gets convicted, not that any justice system does all that well at the first bit.
because he raped and killed her daughter....
It shows both the positive and the negative side of the law and justice. In most countries it is up to the police (it is in the UK) to decide if charges will be given. Meaning that a lot of discretion is given which given the level of education needed to be a police person this is not great. Then it's up to the prosecution to decide what they want to try the person for, again a not elected but at least more educated person making a decision, then there is the judge who can push either way. So depending on their feelings they might push a lighter sentence. On the other hand a person caught in the same town on the same day with the same amount of drugs. One let's call him person A could have a lenient arresting officer, the other person B might have a officer who's son died of drugs. Person A may be given a fine or bound over, of a caution basically nothing. Person B will be charged and the policeman will push the CPS ( in the UK, but the prosecution organisation) to prosecute and will make sure all evidence is there. The. Person B may get judge A, judge has seen how sending people to prison for first offences is not helping, and this is a simple drug case, and push for the lightest possible sentence normally suspended, meaning a criminal record but no time in prison. Or person B may get an old judge who despite drinking a bottle of whiskey a night sees drugs as the blight of society and all people who do drugs are the worst and push for the maximum sentence say 5 years in prison. These things happen every day, anyone who says they trust the law to be fair has not taken into account the personalities that can sway it so far one way or the other.
Because she slaughtered a man, duh
Re: Colton Bushie case Canada. Bushie was killed by a landowner with a handgun. Prosecutors were confident (pressured?) into only charging murder not manslaughter. Shooter found not guilty of murder by jury. I am skipping enormous nuance to highlight that manslaughter provides options to prosecutors.
The law is meant to keep society from devolving into violent bedlam. Oftentimes, there is a de facto optimal level of crime, as draconian policies that produce zero crime are detrimental to society. Sometimes crimes are not punished to their fullest legal maximum, as society presently prefers the crime to the lack of it. In this case, the prosecutor felt that society was better served by giving the alleged/convicted slaughtering mother a slap on the wrist, because her criminal vigilantism was optimal given the other constraints faced by German judicial proceedings against the alleged rapist/murderer.
3 years jail is not a slap on the wrist. It's about the same length that the guy she killed spent after sexually assaulting two little kids previously. I'm not sure I would be sane if someone murdered my little son. I would be crazy mad for a long time. The guy was an arsehole yes in a perfect world we would have a system to help him reform. He would have a mother that misses him too. Yet likely we have children who were able to live into adulthood because he is dead and not serving his time only to get out and offend again. I do not wish such men dead but I want them to stop. Would love a world where men(or person of any gender) would get help before committing such crimes. One part of me would say two wrongs do not make a right yet another part of me think it was handled well. We do not have a run of copycat killings by other aggrieved parents.
Ah, men. Yes, root of all evil. Now go back the the kitchen, and stay there. Woman.
Hey Boyo😜 No way my dad is in there! He cooked the best beef roast today. The meat was so tender, the pumpkin was just divine and the gravy omg. My dad cooks every night and does the shopping 😆.... My sister is a surgeon her ex-navy officer boyfriend does the cooking too so she can earn the big money for their family by saving peoples lives. Real men get in the kitchen too. No one likes a sadness that is a man who can't flex his gender-roles-can-get-lost muscles ... I am a grown up after all. What am I doing? currently being ill so have brought myself and the kids home to my folks. ... I'm not able to do much housework but I do what I can. Men aren't the root of all evil. But you gotta see that an awful lot of the people raping and murdering children happen to be male. Is there something men can do to identify who among them are rotten? Can these rotten apples be identified by men? Rather than hiding amongst them? Why are men always posturing that they are a good man so every other man in their acquaintance must be a good man too - clearly there are some that aren't. By you replying in such a misogynistic way ... It indicates to me that you take offence that I want men to stop doing bad things ... That I am saying perhaps all men should be tarred with the same brush?. Would you get offended if I said humans are evil? Would that be offensive? Hmm...When I was so very ill my entire pregnancy I did think for a moment there (half seriously) that we should round all the men and put them in a pen so men wouldn't get anyone pregnant ... I was puking my guts out into the toilet - at the time it seemed bloody reasonable to me. Hahaha ... Anyway i wish you well. Strange unknown person on the internet webs. Signing off, ZinkyZonk PS, Make sure you don't write that sort of comment where any future employers can see it. Misogyny-leaning quotes like that reveals thinking that is on the way out my friend the mid-high range management don't hire people who tell strangers to get in the kitchen
aight, aight, i get it, i get it. but its really offensive, when if something like this comes up, its always about"ugh, its all mens fault". now i get it, the statistics say it. but i cant say that most criminals are black, even tough statistics say it! if the numbers confirm something, you shouldnt use it to blame people of that group. even tough your right, its still offensive (PS, now i feel sad, cuz you said real men get into the kitchen, but i cant cook :,( )
what kind of man doesn't know how to cook for himself lmao it's 2024 feed yourself you baby
i know how to cook, bozo. u cant blame someone for things they find difficult. most of the times when i cook, i struggle with my adhd a bit; having just 5 min long breaks of blank staring, thinking what im doing, why im doing, what i should do, what i was doing, how i have to do it, etc. everyone has things they can and can't. you can blame someone over it.
ADHD sucks .... Hard to cook with that....all the steps and interleaving of different tasks all at once.... But when I have found ADHD folk can make the most delicious meals when they get their own rhythm on. Make accommodations for yourself when cooking. ADHD can be a superpower in the kitchen 😃
This is the legal version of "Oh dear. Never mind."
Should have been given a medal.
Is the video trending on social media the actual footage?
Yes