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Michelle Carter- if her eyebrows don’t scare you, her conviction will.

This case is more unbelievable and impossible than a bar exam question. It has First Amendment issues, Juvenile Law issues, and Criminal Law issues. Remember that scene in Legally Blonde? The one about mens rea? That’s one of the issues.

This case is fascinating. First, it’s fascinating because I can think of no other Juvenile Court case that got more attention. Also, it’s fascinating because it stayed in Juvenile Court although the State of Massachusetts could have charged her as an adult. But most fascinating is that she was convicted for text messages that lead to a suicide.

Recap: 17-year-old Michelle is dating Conrad Roy, III, 18. He is depressed, previously attempted suicide and desires to kill himself. Carter, in her infinite 17-year-old wisdom encourage him to do it saying “I knew he would do it all over the next day and I couldn’t have him live the way he was living anymore…I couldn’t do it. I wouldn’t let him.” He sets up hose and a generator to fill his car with carbon monoxide. He has second thoughts and calls Carter. She walks him through it and listens to him as he dies in pain. She tells no one and makes no call for help.

Homicide? Several Massachusetts courts have said “yes.” But, kids aren’t entitled to a jury, so only judges have weighed in on this issue. As of today, the highest court of Massachusetts signed off on the verdict. Next stop could be the United States Supreme Court.

And there is a good chance that they will hear this issue because of something known as “Death with Dignity.” People in the United States can basically do whatever because ‘Murcia. But the government can keep you from doing things if they have a “compelling state interest” that overcomes your liberty to live (and die) as you please. And they have a LOT of compelling state interests. Courts have held that you can kill yourself and the government cannot stop you.

We also know that speech is protected to an extent. Best example, you cannot tell “fire” in a crowded movie theater but you can burn an American flag. The controlling case law says that speech isn’t protected when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But suicide isn’t a lawless action so….how was she convicted and how was her speech unprotected?

This is what lawyers call a slippery slope. A defendant encourages someone to do something legal but ends in the loss of a life. If she encouraged him to go climb Mount Everest and he died, would she be charged for his death? No, but this case is leading us down that path. A part of me thinks that her case was left in Juvenile Court for prosecutors to test the murder-by-suicide waters and hope no one is the wiser.

Luckily, her attorney is willing to keep fighting. I can tell you criminal defense attorneys don’t make these arguments to hurt the decedent’s family, or “get someone off” for a terrible act. We do it because if the government can stretch the law in this way, we are all at risk of criminal prosecution. Michelle Carter is probably a horrible person who should be locked away, but what if she isn’t?

UPDATE: a few days after I posted this, Dateline covered the story. Here are some takeaways.

(1) Wonton and Reckless Conduct

The State Commonwealth of Massachusetts charged Michelle Carter with Manslaughter defined as “wonton and reckless” conduct that is reasonably likely to “lead to a death.” You’ll notice that everyone who read the text messages between them were “shocked” or “horrified.” This fueled the case. It sounds like a big legal loophole to the Free Speech argument because…

(2) Michelle Carter had not physically seen Conrad for one year

Is texting an “act” and not “speech.” I think it’s going to be overturned.

(3) Michelle Carter did some shady stuff after Conrad’s death

After Conrad Roy’s death, Michelle Carter “came out of the woodwork” and announced to his family that she was his girlfriend, offered comfort to his mom, and threw a fundraiser in his memory.

(4) She lied to police

Say it with me, “I WILL NOT let my kid talk to police without an attorney.” Police took her out of class, interrogated her (not sure why they didn’t suppress this) and seized her phone. THEN her parents handed her up to the police. It’s my personal mission for parents to understand that handing your kid over to police is a devastating choice. Don’t do it.

(5) She too is mentally ill.

Michelle Carter’s not a fully functioning adult making good life choices. No one should be surprised. But this is why we have juvenile courts. We have to acknowledge that the mind of a child is not criminally culpable. Luckily the Commonwealth kept her case in Juvenile Court.

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