Before we say anything else, let's begin with this important statement: Legally, murder is nowhere as easy a concept as the entertainment media make it out to be. The real world of murder charges and murder defense trials is not what is represented in television and movies. It is far more complex, and it can't be adequately explained or summed up in a "Law and Order" episode, or in a glitzy movie. The real world of these cases is anything but glitzy.

That being said, you are likely visiting this section of our web site because you have an immediate problem or question concerning this area of law. To adequately explain the full intricacies and nuances of Massachusetts law governing murder charges would take up more space than we have here, and would likely leave most readers dazed and glassy-eyed after attempting to digest it all. One really needs a legal degree to comprehend a great deal of this information. What I'll try to do here, is to explain the most important aspects of this field of law, and the elements that are most understandable from a lay point of view.

Before we delve into the intricacies of Massachusetts murder law, let's talk about some realities: The law on this subject in Massachusetts "is what it is" – it doesn't change going from lawyer to lawyer. What does change among lawyers, is the level of talent, expertise and experience that you'll find. And that is what makes our firm different and better than other firms practicing murder defense: Our associates are some of the best-trained and most experienced murder defense lawyers in Massachusetts. We have been trained by the state agency that trains and certifies lawyers in these types of cases, the Committee for Public Counsel Services, and we can provide clients with superior legal counsel and representation in these cases.

Whom do you choose if you need a lawyer in this area of law? What criteria do you consider? Legal talent in this subject matter is, obviously, number one. Equally important is length of experience defending such cases. But let's assume you find or narrow your choice to three or four firms that "rate equally" within these criteria. What then? Are there other factors you should consider? There are, and we uniquely address those factors better than other firms.

These special, superior talents include:

• Media Management. Let's face it: What types of crimes and cases make it to Page One of the newspapers, and the lead story on TV and radio newscasts? Murder cases, and attempted murder cases. You see, beyond the judicial theory that a criminal defendant is tried only in the courthouse, the reality is that, as a high-profile defendant, you're tried in two separate courts: One, a court of law, and two, the court of public opinion. Murder and attempted murder defendants are usually prosecuted by both the District Attorney's office trying the case, as well as the media. And this can inevitably affect a trial's outcome as well as sentencing. Led by Attorney William D. Kickham, our team knows how to manage the media in cases like these: Attorney Kickham has more than 25 years of experience in managing legal and trial issues before the mass media, and we know how to minimize damaging information in the media, and maximize your chances at trial. We'll defend you not only in court, we'll defend you in the media. Increasingly, with news being splashed across the internet at fiber-optic speed, having the advantage of an attorney who knows how to manage the media in these cases, is critical to success.
• Access To The Best Medical and Psychiatric Experts. Cases like these, and the defenses provided for them, usually involve psychiatric issues of some kind. Our firm has access to some of the finest, most authoritative and persuasive psychiatric experts in the country. You can find a lawyer who's tried murder cases before, but if he or she can't produce the right experts to testify in your defense, little may be accomplished. We know how to produce these respected authorities.
• Superior Private Investigators. Critical to an effective defense is the ability to discover and locate key exculpatory evidence on a client's behalf. That evidence is usually anything but obvious – if it were, the police and prosecutors usually wouldn't have a case. To the contrary, it's usually very hard to find and uncover. Finding and producing this evidence, and maximizing your chances at trial, is central to an effective defense. Like law firms, there are a lot of private investigators out there. Just look in the Yellow Pages, and you'll see hundreds of them. Our firm works with only the best private investigators – men and women who have produced "linchpin" results – evidence that has carried the day and won the case. This is very important, because the most talented lawyer in the world, can only do so much if he or she doesn't have the best evidence they need to defend their client. If a lawyer's investigator is only moderate or "okay," your case may be seriously damaged.
• Experience With District Attorneys' Offices and Prosecutors Statewide. Let us make something very clear on this point: A District Attorney's office, or any one prosecutor, is ethically bound to prosecute any case that comes before them with an independent, neutral eye. "Politics" is not ever supposed to enter into prosecutorial decisions – and in the interests of justice, it never should. We believe that strongly. Notwithstanding, the mutual respect that results from working with prosecutors' offices across Massachusetts for many years, produces working relationships that can often prove beneficial in negotiating matters such a as plea agreements and case dispositions. Working always within the ethical boundaries that govern such relationships, we can often negotiate a cooperative, mutually satisfactory case disposition with a prosecutor.

If you face a problem in this area of law, contact us for a free consultation. We will manage your case from intake to, if necessary, post-verdict appeals. Some, but not all, of these services include the following:

• Arrest
• Arraignment
• Bail Hearing
• Pre-Trial Investigation
• Grand Jury Indictment
• Pre-Trial Hearing
• Plea Negotiations
• Trial
• Verdict
• Pre-sentencing investigation and reports
• Post-conviction appeals, writs and motions
• Probation

Now that you know what we can do for you, let's discuss what this area of law is all about, and what you might be facing.

Massachusetts Murder Law

To begin, even the title immediately above illustrates some of the complexities I previously spoke of: Not all killings in Massachusetts are murders. Far from it. I didn't use a better description in this paragraph title, to illustrate this point, but a far better choice would be "Massachusetts Homicide Law." Below, are six different types of murder charges in Massachusetts. In practical reality, only the first three below can accurately be referred to as "murder" charges. The 4^th and 5^th are more accurately classified as "non-murder homicides," and the final one is categorized as an "attempt" only. These are listed in descending order of seriousness (most serious first).

• First degree murder, which is the killing of another person with deliberate and premeditated malice, or murder executed with extreme cruelty, or murder resulting from the commission of a capital felony.

• Second degree murder, which is murder committed with malice aforethought or during the commission of a non-capital felony.

• Voluntary manslaughter, or the unlawful killing of another upon reasonable provocation and without premeditated malice, or a killing resulting from the excessive use of force in self-defense.

• Involuntary manslaughter, which is an unintentional killing resulting from wanton or reckless conduct, or an unintentional killing resulting from a battery.

• Felony and misdemeanor motor vehicle homicide, which applies from a death that results from the operation of a motor vehicle.

• Assault with intent to murder. This charge applies only to an "attempt" to murder.

Quick Overview of "Murder"

A little further below, I'll discuss more detailed legal descriptions of each of the above charges, but for the immediate, ask yourself: What. really, is a "murder"? It's not as cut-and-dried as you might think.

Criminal homicide is often defined as "the unjustified killing of a living person." But what constitutes a "person"? And the person must be alive at the time of the killing, correct? So what, then, constitutes "alive"? These questions became central in the past several decades, principally surrounding two medical areas: Abortion and brain death. Consider: Is a fetus a "person", and would a doctor performing an abortion (at various stages of the pregnancy) be guilty of "murder"? If a doctor or another person unplugged the respirator from a patient who had no brain waves, is that patient a "living person", and would the person pulling the plug be guilty of "murder"?

These are critical questions. The law has, to varying degrees, answered these questions (though to many persons, still not satisfactorily). At common law, the killing of child not yet born outside of the womb, did not constitute a homicide. Hence, if a woman who was pregnant eight months was shot in the abdomen, and the fetus was killed but the woman survived, there was no "murder". The Supreme Judicial Court of Massachusetts changed this doctrine in the 1980's. Presently, Massachusetts law recognizes a viable fetus as a "person" for definitional purposes in this area of law. At the other end of the spectrum, the issue of when life ends also had to be addressed. This question ushered in the concept and definition of "brain death". In Massachusetts, it has been ruled by the Supreme Judicial Court that death essentially occurs when a patient exhibits no spontaneous respiration, when no positive electroencephalogram (EEG, or brain waves) exists for a period of 24 hours, and when the patient does not respond to painful stimuli. Together, these factors constitute brain death. Hence, were someone to walk into a hospital room and unplug the respirator from such a patient, there would be no "murder."

Now that those very basic ideas have been broached, let's discuss the law of murder in Massachusetts. I'll discuss each crime listed above separately, listing out and explaining briefly the legal elements comprising each.

First Degree Murder: This crime is defined by statute: Massachusetts General Laws Chapter 265 S1.

Premeditated Malice

This is the first legal element required for first degree murder, and the term refers to the thinking process of the defendant in developing the intent to kill. Essentially, it translates to this: That the defendant acted after reflecting or "thinking about" his/her planned actions. The law does not mandate that this time period be very long at all, only as much time as to provide the defendant with a brief interim to weigh actions in advance.

Aside from the premeditation requirement, "malice aforethought" is an additional element required for this crime. This essentially means that the defendant possessed an intent to cause mortal injury or serious bodily harm without having legal justification (such as self-defense or defense of another). To find malice aforethought, one of three elements must be present: (1) The intent (mental purpose) to kill; or (2) The intent to cause serious bodily harm; or (3) The intent to create a likelihood that death or grievous harm would result from the defendant's actions. The first two of these require a "specific intent"; the third requires merely a "general intent." Resultantly, a jury could find malice aforethought, provided there is sufficient evidence that the "third element" of malice was present. Translated, this means that the defendant was aware of conditions that a reasonable person would have realized was likely to bring about death or cause serious harm to the victim.

Extreme Atrocity or Cruelty

This next type of first degree murder applies to killings that are especially savage. A jury determines whether this element was present or not, given the evidence introduced at trial. Various factors that juries can weigh on this element include: (1) The amount of conscious suffering the victim experienced, and the defendant's disregard of the same; (2) the degree of the victim's physical injuries; (4) how many times the victim was struck with an instrument; (4) the instrument(s) used (including fists); as well as various other relevant information.

The single mental condition required of the defendant when this element applies is malice aforethought. Resultantly, the prosecution need not establish any deliberate premeditation.

Felony Murder

The last type of first degree murder is a killing that carries a sentence of either death or life imprisonment. This almost always applies to a death that is caused while a felony is being committed (think of a bank robbery.) Were this to happen, this death could be considered first degree murder, without establishing an intent to kill. This rule "injects" the malice element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged felony, and the death must have resulted from the "natural and probable consequence of the felony." Again, the prosecution doesn't have to prove intent to kill; only that a death resulted during the felony, or the attempt to commit the felony.

The maximum sentence for a first-degree murder conviction in Massachusetts is life imprisonment without parole. All first degree murder convictions trigger an automatic appeal to the state Supreme Judicial Court. However, that's a far cry from saying the appeal will be successful. The vast majority are not.

Second Degree Murder: As with first degree murder. this crime is defined by statute: Massachusetts General Laws Chapter 265 S1.

Malice Aforethought

Unlike first-degree murder, which is defined by statute, the requisite elements of second degree murder are defined by case law. "Case law" is law that has been distilled from prior decisions of Massachusetts' courts; it's otherwise known as "common law" or "decisional law." In Massachusetts, murder in the second degree includes homicides committed with malice aforethought. As with first degree murder, "malice" equates to an intent to inflict serious bodily injury without legal justification, or an intent to act in a manner that a reasonable person would know is likely to cause death or serious bodily injury. The malice element does not require an intent to cause death.

Felony Murder

For a homicide to qualify as second degree felony murder, the same requirements apply as do for first degree felony murder. However, the separation point is that, for a second degree felony murder conviction, the underlying felony must carry a penalty of less than death or a life sentence. As an example, burglaries or car thefts would fall under this category. In Massachusetts, a second degree murder conviction carries a maximum sentence of life imprisonment with the possibility of parole after 15 years. Another major difference from first degree murder felony murder, is that a defendant charged with second degree can waive the right to a jury trial, and argue the case before a judge. This is otherwise known as a "bench trial."

Voluntary Manslaughter

Massachusetts statutory law does not define voluntary manslaughter. Instead, Massachusetts case law provides the definition: "The unlawful killing of another, intentionally caused from a sudden transport of passion or heat of blood: (1) upon a reasonable provocation and without malice or upon sudden combat; or (2) from the excessive use of force in self-defense."

Voluntary manslaughter is another form of intentional homicide; however, voluntary manslaughter involves a killing without malice, which separates the crime from murder. Under voluntary manslaughter, the defendant did intend to kill the victim or inflict serious bodily harm, but due to the existence of some mitigating circumstance(s), the law infers that the element of malice does not exist. Therefore, the crime is reduced from murder to voluntary manslaughter.

In what kinds of circumstances does this happen? Usually, when the killing occurs out of passion or the heat of the moment that results from a "reasonable provocation" or a spontaneous fight. Voluntary manslaughter applies when the defendant's actions occur because of an event that causes him, in essence, to lose control – the self-control that would be expected of an ordinary, reasonable person. The provocation or event that produces such passion, anger, or fear must occur within a certain, limited period of time prior to the killing. Generally, this is interpreted as an amount of time within which a reasonable person would not have been capable of "cooling off".

Exactly what is and is not "adequate provocation", is an objective test of whether an ordinary person would have been provoked by the situation in question. Under Massachusetts law, in general, words alone do not constitute a sufficient legal basis for adequate provocation. (However, there are exceptions to this.) At the same time, a shove, a light blow or trespass are not sufficient provocation, either. More classic tests for adequate provocation have involved learning of, or witnessing, a spouse in the act of infidelity or adultery. Case law generally holds that suspicion alone that a spouse is committing adultery does not constitute sufficient provocation to qualify for voluntary manslaughter. However, observing one's spouse in the act of sexual infidelity, or even hearing such acts, may constitute adequate provocation at law. Lastly, voluntary intoxication will not lower a murder charge to voluntary manslaughter.

Aside from provocation, a loss of control that negates malice, can also occur as the product of a spontaneous fight. Massachusetts law considers a killing that resulted from sudden combat as not intentional, therefore not malicious and not murder, but voluntary manslaughter. Finally, while Massachusetts law allows people to use force to defend themselves from imminent harm, they cannot use excessive force. If such excessive force results in the death of their assailant, the person defending himself can be charged with voluntary manslaughter. The maximum sentence for a voluntary manslaughter conviction in Massachusetts is 20 years imprisonment.

Involuntary Manslaughter

As with voluntary manslaughter, Massachusetts statutory law does not define involuntary manslaughter. Rather, Massachusetts case law, as distilled by the courts, provides the definition:

"One can commit involuntary manslaughter through:
(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or
(2) an unintentional killing resulting from a battery."

The first possibility under which a person may be convicted for involuntary manslaughter involves an unintentional death that resulted from "wanton or reckless conduct" of the defendant. In Massachusetts, this rule was the product of the famous "Coconut Grove Fire" in Boston in 1944. In that case, the owner of a nightclub was convicted of involuntary manslaughter when a fire in that club resulted in more than 400 deaths. Those deaths resulted from the club owner's failure to provide reasonable means of emergency egress in the event of a fire, and his failure to take reasonable means to prevent flammable materials in the club from igniting in the first place. That case stands most famously for the proposition that "wanton or reckless conduct" includes both affirmative acts as well as failures to act (omissions), which invite a high degree of likelihood of substantial harm to another person. The law requires that the defendant had knowledge of the circumstances presenting a likelihood of harm, and requires that a reasonable person would have recognized the scope of that danger. The standard of "wanton and reckless conduct" usually applies only to criminal law in Massachusetts. Less serious but similar concepts such as ordinary negligence or gross negligence, do not produce criminal liability, only civil.

The second possibility under which a defendant can be convicted for involuntary manslaughter, requires that the defendant commit a battery; (which is an un-consented-to touching, in these cases almost always a blow of some kind) which doesn't amount to a felony, but which unintentionally causes death. Someone using a degree of force against another that is likely to cause harm, and which causes death, will be guilty of involuntary manslaughter. The law here requires the commonwealth to establish that the defendant knew, or should have known, that his actions would create a high degree of likelihood that substantial harm would result to the victim. The statutory penalties for both voluntary and involuntary manslaughter are the same. Twenty years in state prison, eligible for parole. An important exception (especially in these days of terrorism) is that any voluntary manslaughter conviction involving explosives or explosive devices, carries a maximum punishment of life imprisonment.

Motor Vehicle Homicide- This crime is defined by statute: Massachusetts General Laws Chapter 90 S24G).

By far, this is by far the most common type of charge under Massachusetts Homicide law. The reason for this is simple: When driving a car, you are essentially driving forward over a ton of steel and glass. Take your eyes off the road for just a couple of seconds, and you can easily kill someone. (Frequent cell phone and Blackberry users would be wise to remember that.) Tragically, it happens far too often. There are two types of motor vehicle homicide in Massachusetts: Felony Motor Vehicle Homicide and Misdemeanor Motor Vehicle Homicide. Both crimes are defined by statute. Clicking on either of these laws here, will take you to the statutory reference.

Elements for both the felony charge and the misdemeanor charge, are identical: Operation of a motor vehicle upon a "public way" or in an area where the public has a right of access, while under the influence of alcohol or enumerated other drugs. The distinction between these felony and misdemeanor motor vehicle homicide, is that the more serious felony charge involves the simultaneous element of reckless or negligent operation, causing another's death, while the misdemeanor charge allows either operation under the influence of an intoxicating substance, or operating recklessly or negligently. (Both require the death of another person.)

The state legislature enacted the motor vehicular homicide crime, to reflect the reality that there is a serious difference between the misdemeanor offense of operating to endanger, and the much more serious driving while under the influence, which qualifies as involuntary manslaughter.

The maximum sentence for a conviction of felony motor vehicle homicide is imprisonment for two and one-half to 15 years, and a fine of up to $5,000. With this conviction, however, there is a mandatory jail term of one year. The maximum sentence for misdemeanor motor vehicle homicide is imprisonment for 30 days to two and one-half years, or a fine of $300 to $3,000, or both. Regardless of whether a defendant is convicted of felony or misdemeanor motor vehicle homicide, his or her driver's license is suspended for a period of ten years. If there is a second conviction, the license is revoked for life.

Assault With Intent to Murder or Maim

This crime is also defined by statute: Massachusetts General Law chapter 265 S 15 As I said at the very opening of this section of our web site, this charge represents not a homicide charge, but "attempted" homicide.

While the definition, "Assault, with the specific intent to murder or maim." is simple enough, conviction is a little trickier. A conviction on this charge requires that the commonwealth prove that the defendant assaulted the victim with the specific intent to kill, and with malice. This means that, unlike with voluntary and involuntary manslaughter charges, there can exist no mitigating factors when the crime occurred, such as provocation or self-defense. The prosecution is required to prove an actual intent to kill by the defendant. Because the commonwealth must prove the specific intent to kill, the defense is allowed to introduce evidence of the defendant's incapacity or intoxication at the time of the crime, to cast doubt on the prosecution's argument that the defendant possessed the intent to kill.

What does "maim" mean? It isn't pretty. It basically describes mutilation: Slashing, cutting, or dismembering the appendages or limb(s) of a victim. Specific intent must, obviously, be proven by the prosecution. The maximum sentence for this crime is 10 years in state prison, or fine of $1,000.00. Many people, justifiably, feel this statute needs updating by the legislature, particularly on the fine issue.

Now that you've completed a course in "Massachusetts Murder 101", contact us if you face a problem in this area of law, or if you have any questions. We can provide you with the best representation against these serious charges, that you will be able to find in Massachusetts. Charges like these are life-altering, and potentially life-destroying. You need to be very careful when choosing the right attorney to represent you and guide you through such a situation. We know that once you meet us and speak with us, you'll be convinced there isn't a better choice you can make.