Manslaughter or Murder, What’s the Difference?

Betty Jo Shelby, the white Tulsa police officer who shot and killed an unarmed black motorist last week, was charged with first degree manslaughter by the DA’s office yesterday.

Prosecutors have charged the officer with committing manslaughter “in the heat of passion.” Oklahoma law defines such passion as a strong emotion, such as fear or anger, that exists to such a degree in a defendant that it affects “the ability to reason and render the mind incapable of cool reflection.” Those found guilty of first-degree manslaughter face a sentence of no fewer than four years in prison.

Why was she charged with manslaughter and not murder?  According to the official account and the videos, Mr. Crutcher was walking away from the officers with his hands in the air.  He was ignoring commands by the officers and walked towards his car.  When he was next to his car window, Shelby fired the shot that killed him.  No guns or weapons were found on him or in his car after the shooting.  There were multiple officers on scene and Shelby was not alone, but she is clearly frantic when you hear her yell “shots fired!” after she shoots Crutcher.

The DA’s office evidently believed that Shelby “over-reacted,” was in fear for her life however unreasonable, and did not fire the shot with “malice aforethought,” the required intent for a murder conviction.

According to court documents, the officer, Betty Jo Shelby, 42, was overcome with fear that the man, Terence Crutcher, 40, who was not responding to her commands and was walking away from her with his hands up, was going to kill her.

An investigator with the Tulsa County district attorney’s office said in an affidavit that Officer Shelby became “emotionally involved to the point that she overreacted” and fired her weapon even though she “was not able to see any weapons or bulges indicating” that Mr. Crutcher had a gun.

In Oklahoma, first degree manslaughter is roughly equivalent to South Carolina’s voluntary manslaughter charge.  Oklahoma Code Section 21-711 states that homicide is manslaughter in the first degree:

  1. When the killer is committing a misdemeanor and did not intend to kill the deceased;
  2. When the killer did not intend to kill the deceased, the killing is committed in the heat of passion, and a dangerous weapon is used or the killing is in a cruel and unusual manner; or
  3. When the killing is unnecessary but happens while resisting an attempt by the deceased to commit a crime or after the attempt to commit a crime has failed

Arguably, Shelby’s actions could be encompassed by the second prong – Shelby’s voice on the video shows that she was emotionally distraught at the time of the shooting.  She fired a gun – clearly a dangerous weapon.  But, it is hard to make a case that when you take aim and fire a pistol at someone you do not intend to kill the person.

In South Carolina, voluntary manslaughter is 1) an unlawful killing without malice, 2) while in the heat of passion and 3) upon sufficient legal provocation.  Nothing in the video or even the official account suggests to me that Crutcher did anything that rises to sufficient legal provocation, unless you believe the officers’ account that says Crutcher was reaching into his car window and you believe that action is sufficient legal provocation to justify a manslaughter charge instead of murder.

The DA seems to believe that the officer believed that the shooting was justified at the moment she pulled the trigger.  There was no “malice aforethought” because the officer’s intent was not to murder Crutcher, but to protect herself and the other officers because Crutcher was refusing to obey commands and, according to her, was reaching into his car window.  Under the circumstances, if a jury believes the officer’s account, she would not be convicted of murder.

But wait – aren’t these questions for a jury to answer?  The DA probably feels like they are walking a tightrope at the moment.  If they fail to charge the officer, they may be looking at protests and riots like what has been happening in Charlotte, N.C. following another police shooting where the police have refused to release the video and the officer was not charged.  On the other hand, if they throw the book at the officer, they will have to deal with the inevitable backlash from the police department and law and order politicians.  Could they have charged Shelby with murder?  Absolutely, and they would have if the tables were turned and it was Crutcher who shot Shelby.  But they have plenty of cover to justify charging her with manslaughter instead.



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