Should Michelle Carter Prevail In The Appeal Of Her Conviction For Involuntary Manslaughter?

Readers are likely familiar with the Michelle Carter “texting suicide” case.  She was criminally charged with goading her psychologically troubled boyfriend, Conrad Roy III, into committing suicide.  She was convicted by a Massachusetts judge in June 2017 of involuntary manslaughter, and sentenced to 15 months in prison on August 3.  Judge Lawrence Moniz suspended execution of the sentence pending the outcome of Carter’s appeal.  What are the merits of her appeal, if any?  What are her chances of prevailing on appeal?  These questions will be discussed here.

This case has received a large amount of attention in the media.  According to many commentators, the case highlights the intersection of free speech and criminal liability.  Because the communications between Carter and Roy during his suicide took place through text messages and emails, the case supposedly represents a “broadening” of the legal standards involved in the charge of involuntary manslaughter.  The legal commentary on this important case has been neither rigorous nor logical.  The Massachusetts chapter of the ACLU (American Civil Liberties Union) wrongly thundered that Carter’s conviction

[E]xceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and US Constitutions… The implications of this conviction go far beyond the tragic circumstances of Mr. Roy’s death.  If allowed to stand, Ms. Carter’s conviction could chill important and worthwhile end-of-life discussions between loved across the Commonwealth.

But as we will see, most mainstream analysis of the case is deeply flawed.  A review of the Massachusetts case law on involuntary manslaughter shows quite clearly what the appropriate standards are.  Carter’s conviction was rightly decided, and should be upheld on appeal.  We begin by examining precisely what the Massachusetts case law says about involuntary manslaughter, and how those standards have been applied in the past.

We first consider the 2012 case of Commonwealth v. Pugh, 969 N.E.2d 672 (2012).  In this case–which, like the Michelle Carter case, was also conducted as a bench trial–a criminal prosecution was brought against a Massachusetts woman who, while in childbirth, incompetently delivered her child unassisted, and then failed to summon medical help when she realized she was giving birth in the “breech” position.  The trial court found that the defendant committed “wanton or reckless” acts against her own foetus.  The appellate court reversed the conviction, however:

We conclude that the evidence is insufficient to convict the defendant on the theory that she was wanton or reckless in her acts of commission (i.e., exerting force to bring about the birth), because the Commonwealth failed to prove that, once she decided to give birth unassisted, the defendant had any alternative safe course of action.  Additionally, we conclude that, in light of the judge’s findings that the Commonwealth had not proved that the baby was born alive, or that summoning medical assistance would have saved the baby’s life, there is insufficient evidence that the defendant’s act of omission (i.e., failure to call for assistance) was the legal or proximate cause of the baby’s death.

In making its decision, the appellate court carefully defined the appropriate legal standards.  The standards and definitions are worth quoting in full:

[I]nvoluntary manslaughter includes an unlawful homicide unintentionally caused by wanton and reckless conduct.  Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990).  Proof of recklessness requires “more than a mistake of judgment or even gross negligence,” Commonwealth v. Michaud, 389 Mass. 491, 499, 451 N.E.2d 396 (1983), and has been defined as “intentional conduct … involv[ing] a high degree of likelihood that substantial harm will result to another.” Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944).  Wanton or reckless conduct is determined based either on the defendant’s specific knowledge or on what a reasonable person should have known in the circumstances.  Id. at 398, 55 N.E.2d 902.

If based on the objective measure of recklessness, the defendant’s actions constitute “wanton or reckless conduct…if an ordinary normal [woman] under the same circumstances would have realized the gravity of the danger.”  Id. at 398–399, 55 N.E.2d 902.  If based on the subjective measure, i.e., the defendant’s own knowledge, “grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter [her] conduct so as to avoid the act or omission which caused the harm.”  Id. at 398, 55 N.E.2d 902.

As a general rule, the requirement of “wanton or reckless conduct” may be satisfied by either the commission of an intentional act or an intentional “omission where there is a duty to act ” (emphasis added).  Id. at 399, 55 N.E.2d 902.  Both “commission”—physical acts to dislodge the fetus in breech presentation from the birth canal—and “omission”—failing to summon medical assistance—are at issue in this case.

In reviewing the facts of the case, the appellate court concluded that there was simply no evidence of deliberate wrongdoing.  Childbirths can be complicated procedures, and for a court to try to “second guess” what was happening at the time would amount to an unreasonable interference in a medical procedure.  There was simply no evidence of “wanton or reckless” conduct; what had happened looked more like a mistake than a crime.

We next consider the 2010 case of Commonwealth v. Life Care Centers of America Inc., 926 N.E.2d 206 (2010).  In this case, an elderly resident of a nursing home fell down a flight of stairs outside the home and died.  The deceased was not wearing a prescribed security bracelet at the time; the bracelet would have set off an alarm and locked the front doors of the facility, thereby preventing her death.  The nursing home was indicted for involuntary manslaughter.  The language of the appellate court is very clear on how involuntary manslaughter is defined, and what the requisite standard is:

We begin by examining the requirements of the crime of involuntary manslaughter.  Involuntary manslaughter is “an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct.” Commonwealth v. Gonzalez, 443 Mass. 799, 808, 824 N.E.2d 843 (2005), quoting Commonwealth v. Godin, 374 Mass. 120, 126, 371 N.E.2d 438 (1977).  Wanton or reckless conduct generally involves a willful act that is undertaken in disregard of the probable harm to others that may result.  See Commonwealth v. Welansky, 316 Mass. 383, 397, 55 N.E.2d 902 (1944).

Although our cases state frequently that “[t]he essence of wanton or reckless conduct is intentional conduct,” see Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990), quoting Commonwealth v. Welansky, supra at 399, 55 N.E.2d 902, reckless conduct does not require that the actor intend the specific result of his or her conduct, but only that he or she intended to do the reckless act.  See Commonwealth v. Levesque, 436 Mass. 443, 452, 766 N.E.2d 50 (2002).  Accordingly, when we refer to the intent required to support a conviction of involuntary manslaughter, we refer to the intent to perform the act that causes death and not the intent that a death occur.

The appellate court significantly noted that “[a] conviction of involuntary manslaughter requires more than negligence or gross negligence.  The act causing death must be undertaken in disregard of probable harm to others in circumstances where there is a high likelihood that such harm will result.  A conviction of involuntary manslaughter can in some circumstances be based on a failure to act.  If an individual’s actions create a life-threatening condition, there is a duty to take reasonable steps to alleviate the risk created, and the failure to do so may rise to the level of recklessness necessary for involuntary manslaughter.”  (Citations omitted).

Finally, we consider the fascinating 2002 case of Commonwealth v. Levesque, 766 N.E.2d 50 (2002).  In this case, several defendants were indicted for involuntary manslaughter when they negligently caused a fire in a warehouse.  During a fight, the homeless defendants knocked over a lighted candle in the warehouse, caused a fire, and then left the building without informing the authorities of the fire.  However, the resulting fire was severe and consumed the lives of several firefighters.  The defendants filed motions to dismiss the indictments.  The dismissals were granted, but the prosecution appealed.  The case reached the Massachusetts Superior Judicial Court, and the court reversed the dismissals.  It found that there was sufficient evidence to support the involuntary manslaughter charges.

The major question on appeal was whether the evidence was sufficient to support a case for involuntary manslaughter.  The defendants argued that they had no duty to report the fire, and that they could not possibly have known that their actions (i.e., knocking over a candle and causing a fire) would have resulted in the deaths of the firemen.  The court stated:

Because Massachusetts has not defined manslaughter by statute, its elements are derived from the common law.  Commonwealth v. Godin, 374 Mass. 120, 126, 371 N.E.2d 438 1977).  Involuntary manslaughter is “an unlawful homicide, unintentionally caused … by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.” Commonwealth v. Catalina, supra at 783, 556 N.E.2d 973, quoting Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967).

The defendants argue that the evidence presented to the grand jury is insufficient to constitute probable cause that they have committed the crime of manslaughter.  Specifically, the defendants contend that they did not have a duty to report the fire, thus rendering the evidence insufficient to demonstrate wanton and reckless conduct, and that the evidence does not support a finding that the fire fighters’ deaths were caused by their failure to report the fire.

The Levesque court was not persuaded by the arguments of the defendants.  Here is the key language in the court’s decision regarding the “duty to act” issue:

Our law, both civil and criminal, imposes on people a duty to act reasonably…[W]e have expressed agreement with its underlying principle.  It is consistent with society’s general understanding that certain acts need to be accompanied by some kind of warning by the actor…We agree with this principle and apply it to this case; where one’s actions create a life-threatening risk to another, there is a duty to take reasonable steps to alleviate the risk.  The reckless failure to fulfill this duty can result in a charge of manslaughter.  Where a defendant’s failure to exercise reasonable care to prevent the risk he created is reckless and results in death, the defendant can be convicted of involuntary manslaughter. Public policy requires that “one who creates, by his own conduct … a grave risk of death or injury to others has a duty and obligation to alleviate the danger.” People v. Kazmarick, 99 Misc.2d 1012, 1016, 417 N.Y.S.2d 671 (N.Y. County Ct. 1979).

We are not faced with the situation of a mere passerby who observes a fire and fails to alert authorities; the defendants started the fire and then increased the risk of harm from that fire by allowing it to burn without taking adequate steps either to control it or to report it to the proper authorities…

Clearly, then, public policy requires a duty to act when there is a “grave risk of death or injury to others.” When considering the issue of “wanton or reckless” conduct, the Levesque court noted that “To constitute wanton or reckless conduct, ‘the risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant’s election to run that risk or of his failure reasonably to recognize it.'”  The court also noted that “Although it is true that recklessness must involve an intentional act or omission, a finding of recklessness is grounded in intent to engage in the reckless conduct, and not intent to bring about the harmful result.”

The existing case law in Massachusetts demonstrates that the Michelle Carter conviction is well-grounded in law.  The Levesque decision leaves little room for doubt.  Carter’s conduct in repeatedly badgering and goading her boyfriend to kill himself clearly meets the standard of “wanton and reckless” conduct.  It is essential to recall the behavior of the defendant in this case, and the background of the two actors, Carter and Roy.  The victim was essentially handicapped; he had a known psychological condition.  Carter exploited this condition; she showed a malicious disregard for his safety by literally ordering him, over and over again, to end his life.  This case has nothing whatever to do with “free speech,” and attempts to make this an issue are grotesque in the extreme.  Massachusetts law makes this very clear.

Furthermore, she clearly had a duty to call for help once she knew Conrad Roy was on the verge of ending his life.  She created a grave risk of death or injury to Roy, and then sat by and pushed him into the abyss.  Worse still, the evidence at trial made it clear that she acted as she did for self-serving, attention-seeking motives:  she sought to portray herself as the grieving ex-girlfriend, and thereby enhance her own social status.  The defendant’s conduct in this case was cold-blooded and malicious, and she is frankly fortunate not have received a much longer sentence.  The case was rightfully decided, and should be upheld on appeal.