Martha Grace Duncan, Beauty in the Dark of Night: the Pleasures of Form in Criminal Law

Publication year2010


Martha Grace Duncan*

Our need for beauty springs from the gloom and pain which we experience from our destructive impulses . . . ; our wish is to find in art evidence of the triumph of life over death.

-John Rickman, Selected Contributions to Psycho-Analysis1


In a noisy Italian restaurant, over low bowls of steaming eggplant parmigiana, an old friend startled me one evening by saying, "I just don't know how you can work in that field." By "that field," I realized my friend meant criminal law, though I still don't understand why she condemned it so harshly. It's the goriness, I suppose, all the grisly facts-neighbors attacking each other with a hatchet and carving knife in a dispute over a doorstop; a man stabbing his wife nineteen times after she taunted him for his passivity; and castaways slaying a boy to consume his flesh when adrift on the high seas. I expect that is what she meant by her surprising remark.

She would not have thought my work unethical, as some people believe it is to represent those accused of crimes, for I neither defend nor prosecute defendants. I am a law professor, and my contact with flesh-and-blood criminals extends only so far as visiting prisons and interviewing convicts for research purposes. Some of the prisoners I've interviewed have become my friends; others, my long-term correspondents, through the process of my learning and writing about them. Mostly, though, I work not with criminals but with criminal law-a field I adore. You could say, following Max Weber, that I live for as well as off my chosen field.2



My favorite crime is depraved heart murder. It boasts the most poetic name and the most poetic definition as well. At common law, this form of homicide is defined as murder committed with an "abandoned and malignant heart"5-as lovely and evocative a phrase as you will find anywhere. To be sure, this formula sometimes deteriorates into a dead metaphor, losing its rich connotations and retaining only a precise meaning stipulated by code. But now and then a judge or jury resuscitates the image, reviving its original, eloquent poetry.

This happened in the 1928 case of Commonwealth v. McLaughlin, where the twenty-year-old defendant struck a male pedestrian and the pedestrian's wife and baby while driving recklessly.6As a result of the accident, the husband and baby died, and a jury convicted the defendant of murder.7On appeal, the Supreme Court of Pennsylvania reversed the conviction, noting that the defendant's compassionate behavior after the collision-specifically, his assistance in transporting one of the victims to the hospital-"negative[s] the idea of wickedness of disposition or hardness of heart" required for depraved heart murder.8

This opinion is astonishing because, typically, only behavior leading up to and including the crime "counts" to establish the crime's elements. But here the court considered acts occurring after the crime was over-after the mens rea (guilty mind) and the actus reus (guilty act) had been established. In so doing, it seems the judges were influenced by the metaphorical language of depraved heart, which caused them to assess the defendant's character instead of merely his criminal act. Upon finding that the defendant lacked the elusive quality the metaphor suggests, albeit based on his behavior after the crime, the court reversed the conviction of murder.9

Another poetically-named doctrine is heat of passion, a formula that reduces murder to manslaughter when a "killing, though intentional, [is] committed under the influence of passion or in heat of blood."10Just as with depraved heart, so too with heat of passion: the words cannot be dismissed as mere embellishment-a decorative phrase added to the core meaning for literary effect. Rather, the name heat of passion is central to the meaning itself-essence, not accident; a leitmotif rather than a chance image. The name has driven the doctrine, spinning off two other legal metaphors: cooling off and rekindling. The cooling off doctrine states that even when the defendant's blood has been "kindled by fire,"11he may not avail himself of the heat of passion defense if his blood had time to "cool[]" before he inflicted the fatal blow.12Nonetheless, the cooling-time limitation can sometimes be overcome by the theory that a fresh incident occurring right before the homicide "rekindled" the prior provocation.13

A number of jurisdictions have modernized their codes, rejecting the ancient phrase heat of passion in favor of the doctrine of Extreme Emotional Disturbance (EED). But several of these states reverted to the old formula after a brief experience with the new,14and a few high courts in states that adopted and kept the modern wording found it impossible to abandon the traditional metaphor completely.15In explaining how the new standard allowed for more time to elapse before "cooling off" would negate the defendant's "hot blood," one court said, "[I]t may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore."16

Like depraved heart and heat of passion, malice aforethought is an ancient doctrine of criminal law that evades precise definition. I treasure the doctrine's mellifluous rhythms, its mysteriousness, and its resonance with times long past. As powerful as it is beautiful, the metaphor of malice aforethought determines the difference between intent-to-kill murder and heat-of-passion voluntary manslaughter, and between depraved heart murder and criminal negligence. It has been called "'the grand criterion'" of murder.17Yet, if you were to ask what malice aforethought means, you would learn that it has little to do with the words that comprise it.18

Sometimes I warn my students, "The term malice aforethought is a false friend, a misleading cognate, like the Spanish word embarasada." I pause. "What does embarasada appear to mean?"

A few students call out, "Embarrassed." "What does it mean?"

Someone yells "Pregnant!," and the class laughs.

Other times, I remind my students of Voltaire's witticism about the Holy Roman Empire being "neither holy, nor Roman, nor an Empire."19Similarly, I explain, malice aforethought requires neither malice nor forethought. Rather, malice aforethought can be satisfied by an unintentional killing with a "depraved heart" or by felony murder when an accidental death occurs in furtherance of another felony.

The divergence between the lay and legal meanings of malice aforethought has existed for a long time. As early as 1887, in what has since become a classic statement, a distinguished English jurist named James Fitzjames Stephen alerted jurors to the risk of misunderstanding:

The definition of murder is unlawful homicide with malice aforethought; and the words malice aforethought are technical. You must not, therefore, construe them or suppose that they can be construed by ordinary rules of language. The words have to be construed according to a long series of decided cases, which have given them meanings different from those which might be supposed.20

That last sentence, with its refreshing candor, always makes me laugh.

Judge Stephen's jury instruction highlights a point that students of the law often miss, namely, that malice aforethought (like criminal law generally) is a

"language event[]."21In other words, malice aforethought alludes to the language of past cases as much as to events in the "real" or external world. This implicit referencing of other parts of the canon is what literary critic Northrop Frye has called the "centripetal"-as distinct from the "centrifugal"-meaning of a verbal structure.22In the Bible, for example, some New Testament stories are meant to be read not merely as parables, nor as descriptions of actual events, but also as the fulfillment of Old Testament prophecies.23To read a text oblivious to its centripetal meaning, warns Frye, is to read incompetently.24By the same token, to read the phrase malice aforethought oblivious of its embedment in a legal canon is to miss an essential part of its meaning.

Not long ago, I chanced upon a phrase that exquisitely describes malice aforethought. It appears in Erich Auerbach's classic work, Mimesis: The Representation of Reality in Western Literature.25In his opening chapter, Auerbach explains that the Homeric poems, despite their linguistic and intellectual sophistication, are actually much less sophisticated than the Old Testament stories in terms of the characters' psychological development.26"Odysseus on his return," he writes, "is exactly the same as he was when he left Ithaca two decades earlier."27In contrast, "what a road, what a fate, lie between the Jacob who cheated his father out of his blessing and the old man whose favorite son has been torn to pieces by a wild beast!"28The Old Testament patriarchs evolved over time, and when we see them in old age, at their most complex, they are, in Auerbach's wonderful phrase, "fraught with background."29Like these patriarchs, the term malice aforethought has changed through time-not decades, but centuries-and when we study the doctrine now, we find that it is laden with accreted meaning and emotion-that it too is "fraught with background."


You meet some intriguing characters in Criminal Law. Consider, for instance, the mathematician named Edmund Beauclerc Staples who, one autumn in 1967, when his wife was away, decided to become a bank robber. In pursuit of his plan, he leased an office above a bank in Hollywood, moved some tools onto the premises, and drilled holes in the floor directly above the vault. Feeling tired and afraid after this exertion, he covered the holes with a rug and drifted off to sleep. In the ensuing weeks, apart from...

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