Criminal law - duress: no defense to murder?

• Author: Bullen, George K.
• Position: Massachusetts - Case note

Duress has long been established at common law as a valid affirmative defense to criminal conduct and has been recognized by numerous states and the federal government. (1) the defense of duress applies when an individual commits a criminal act under an imminent threat that creates a reasonable fear of death or serious bodily harm to the individual, who has no reasonable means of escape available, and where no reasonable person could have acted otherwise. (2) In Commonwealth v. Vasquez, (3) the Massachusetts Supreme Judicial Court ("SJC") considered as a matter of first impression whether duress is a valid affirmative defense to intentional murder. (4) the SJC held that while duress may be a factor to consider for guilt reduction purposes, it is not an affirmative defense to murder because the harm resulting from the defendant's crime is greater than the harm threatened to the defendant himself. (5) This comment will analyze the SJC's attempt to reconcile traditional common-law values with recent criminal justice trends permitting duress as a defense to all crimes, as well as the potential impact of the decision on future murder-under-duress cases in Massachusetts. (6)

On November 3, 2001, Scott Davenport ("Davenport") drove his car to meet a friend, Ismael Vasquez ("Ismael"), at the Alewife Subway Station in Cambridge. (7) Davenport had arranged to bring Ismael, along with two other men and three women, including a woman named Io Nachtwey ("Nachtwey"), to Lawrence in exchange for heroin. (8) Ismael had recently formed a gang with these individuals and others who frequented the Harvard Square area of Cambridge. (9) At the time of the incident, the gang was experiencing internal tension, with Nachtwey's alliances to the gang specifically in question. (10) Davenport drove the group to Lawrence to retrieve the heroin, after which the group returned to Cambridge and stopped at a park. (11) once there, a male member of the group (Parker) informed two of the women that when he signaled, they were to hold Nachtwey down and Davenport was to stab her to death. (12)

After returning to the car, the group drove to a side street in Cambridge near the Boston University Bridge. (13) Ismael handed Davenport a ten-inch knife and told him, "You know what you have to do." (14) Davenport told Ismael that he did not want to kill Nachtwey, to which Ismael responded, "You're not getting out of here if you don't." (15) As the group walked along a set of nearby train tracks, Ismael gave the signal and the women pushed Nachtwey to the ground and restrained her. (16) Davenport ran toward them, shouting, "die, die, bitch, die," and repeatedly stabbed Nachtwey, who unsuccessfully tried to fight back. (17) After she stopped moving, Davenport and Vasquez threw her lifeless body into the Charles River. (18) At this time, Davenport ran his hands through his hair and exclaimed, "What a rush!" as the group returned to the car and drove off. (19) At trial in Superior Court, Davenport claimed that he had acted under duress, an available defense to murder in Massachusetts, and requested a jury instruction to that effect. (20) Judge Brady denied Davenport's request, instructing the jury that duress was not a valid affirmative defense to murder. (21) The court stated the common-law principle that "duress does not ... excuse the intentional murder of an innocent person." (22) Davenport was convicted of murder in the first degree. (23) Upon the SJC's plenary review, Davenport argued that the trial judge's jury instruction was in error. (24) Further, Davenport claimed he was entitled not only to an instruction that duress was a valid defense to murder, but also that it may mitigate a charge of murder to a charge of manslaughter. (25) The SJC heard the case to determine whether a murder defendant may argue duress as a valid affirmative defense in Massachusetts. (26)

The affirmative criminal defense of duress, also known as compulsion or coercion, has a lengthy common-law history rooted in the moralistic "choice of evils" rationale: duress is acceptable as a defense when the resulting harm is less than the threatened harm. (27) An actor commits a crime under duress when faced with a present, immediate, and impending threat that would induce "a well-founded fear of death or of serious bodily injury if the criminal act is not done; the actor must have been so positioned as to have had no reasonable chance of escape ... where neither he nor a person of reasonable firmness could have acted otherwise in the circumstances." (28) The defense of duress is generally not available to an individual who recklessly puts himself in a position where he is likely to experience coercion, for duress is rooted in reasonableness, and recklessness is not reasonable. (29)

Anglo-American common law has consistently rejected the acceptance of duress as a valid murder defense. (30) Most state appellate courts to address the issue have affirmed the common-law interpretation regarding the unavailability of duress as a defense in murder trials. (31) The Model Penal Code ("MPC") recognizes and advises duress as a defense to all crimes, including murder. (32) Some states' criminal statutes contain language mirroring the Model Penal Code's liberal definition of duress and permit its application to guilt reduction statutes. (33) Most states, however, have adopted the common-law rule excluding duress as an affirmative defense to murder as well as for purposes of guilt reduction. (34)

In recent years, an increasing number of courts and legal scholars have argued for the allowance of duress as a defense to a broader range of crimes, including murder. (35) Judicial flexibility in the consideration of duress for guilt reduction purposes in murder cases has also been on the rise. (36) Massachusetts courts had not addressed this issue directly, although the Commonwealth's capital review statute provides the SJC with the authority to consider duress as a factor in mitigating a murder charge to manslaughter. (37) Still, some courts continue to adhere to the common-law rule of keeping the duress defense out of murder trials all together, citing policy concerns that allowing it would encourage criminal gang members to follow an order to kill if they knew they could avoid responsibility by proving coercion. (38) Courts have also applied this rationale in denying a criminal defendant's use of duress for guilt reduction purposes. (39)

In Commonwealth v. Vasquez, the SJC addressed the issue of duress as an affirmative defense to intentional murder. (40) The SJC, relying primarily on the choice-of-evils rationale, held that the trial court did not abuse its discretion by refusing to instruct the jury that duress was a valid defense to intentional murder. (41) In doing so, the SJC affirmed the common-law rule, persuaded by the argument that the threat of harm to oneself does not excuse the taking of an innocent life. (42) By killing Nachtwey, the SJC reasoned, Davenport had not prevented the commission of a crime of greater magnitude; therefore, duress should not have been available to him as an affirmative defense. (43) Additionally, the SJC cited Anderson's policy considerations for keeping the defense of duress away from defendants charged with murder. (44) The potential for the availability of the defense to act as additional motivation for a gang member to kill was a concern for the SJC, as it was for the Anderson court. (45)

While the SJC rejected duress as an affirmative duress to murder, it did reserve the right to consider duress as a mitigating factor in guilt reduction under the Massachusetts capital review statute. (46) In conducting a plenary review of Davenport's conviction, the SJC applied the elements of the duress defense to the facts and found that no reduction in guilt was necessary. (47) The SJC, in barring duress as a complete defense to murder while allowing its consideration for guilt reduction purposes in "exceptional and rare circumstances," reasoned this slight alteration of the common-law rule represented the fairest interpretation of the duress defense as it applies to murder defendants. (48)

In Commonwealth v. Vasquez, the SJC, by refusing to allow the defense of duress to murder, chose to endorse an impractical and out-dated common-law principle. (49) The logic behind the choice-of-evils rationale, that a person "ought rather to die himself, than escape by the murder of an innocent," is based on a noble yet rigid moral sensibility that stretches back almost as far as the common law itself. (50) While such an estimable history must be respected, the SJC's application of this antiquated norm is not in keeping with modern criminal justice trends or the practical role of the common law to reflect an ever-evolving mosaic of societal values and expectations of behavior. (51) Certain principles are surely indelible, and this does not mean that modern society is or should be more willing to acquit individuals charged with murder; however, whenever possible, society should have the opportunity to consider doing so based on the sum of the facts in total. (52) The role of the courts should not be to force unforgiving moral standards upon those charged with a crime, even if that crime is murder. (53) The outright exclusion of the duress defense in murder trials imposes upon the defendant an inflexible and imperfect standard of how a human being should act at all times, and not an objective and independent standard of how a reasonable person would act in a given situation. (54) It is the province of the jury, not the court, to apply such a standard. (55) In affirming the choice-of-evils rationale, the SJC precluded this possibility in favor of an approach that could potentially lead to injustice, albeit on rare occasions. (56) Regardless of the scarcity of true murder-under-duress cases, justice would be better served in the Commonwealth if the adjudication of such...