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selly
03-15-2012, 06:02 AM
When my MC is a child (about 9 or 10) she is almost murdered by the antagonist of my story (he uses a knife, so it's assault with a deadly weapon too). The attack is both brutal and grotesque.

The question is this: what's the minimum amount of time my antagonist could be put away for after he's inevitably charged with attempted murder (and whatever else a lawyer would try to nail him for?) If it matters, he's very wealthy (so he can afford a good defense), seems more than a bit off his rocker (but someone told me insanity defenses were hard to build, let alone win...), and his victim absolutely refuses to testify against him. The story is also set in Maine. I figure this is important as laws differ from state to state.

Thanks much in advance!

jclarkdawe
03-15-2012, 06:30 AM
What does the story need? Because this could be set up in many different ways, from a relatively short period to most of his life. It all depends upon how strong is the prosecutor's case, how crazy he is, prior history, extent of injuries, how nasty the crime is, and some other factors. So, to repeat, what does the story need?

Best of luck,

Jim Clark-Dawe

Siri Kirpal
03-15-2012, 06:34 AM
Sat Nam! (literally "Truth Name"--a Sikh greeting)

I'm not a lawyer and I don't live or work in Maine, but I did research a similar question once.

Usually, if the victim won't testify, that can kill the charge, but since the victim is a child, I don't think it would.

Minimum for manslaughter in Oregon is 5 years. The guy would be wise to plead that if his lawyer can't get him off.

Note that in some states, the murder of a child is subject to the death penalty. Since the child didn't die, though, I don't think it would apply.

But wait until our legal types show up and give better advice.

Blessings,

Siri Kirpal

raelwv
03-15-2012, 06:45 AM
With the caveat that I practice in federal court (and not in Maine), it actually doesn't look like there is a minimum sentence for attempted murder in Maine.

Here is a link to the criminal section of the Maine code:
http://www.mainelegislature.org/legis/statutes/17-a/title17-ach0sec0.html

Looks like Maine classifies its crimes as Class A through E crimes, with murder a special case at the top of the list. A conviction for attempt triggers a sentence for the class below the one where the substantive offense is located. So if you attempt to commit a Class A crime, you can get a Class B sentence. Attempted murder leads to a Class A sentence.

The actual sentences for the classes are here (http://www.mainelegislature.org/legis/statutes/17-a/title17-Asec1252.html). It looks like there are no minimums, only maximums, for each class. For Class A crimes, it says:

In the case of a Class A crime, the court shall set a definite period not to exceed 30 years.So it looks like you could have your character could get just about any sentence you want, up to 30 years, for the attempted murder.

Hope that helps.

selly
03-15-2012, 07:04 AM
With the caveat that I practice in federal court (and not in Maine), it actually doesn't look like there is a minimum sentence for attempted murder in Maine.

Here is a link to the criminal section of the Maine code:
http://www.mainelegislature.org/legis/statutes/17-a/title17-ach0sec0.html

Looks like Maine classifies its crimes as Class A through E crimes, with murder a special case at the top of the list. A conviction for attempt triggers a sentence for the class below the one where the substantive offense is located. So if you attempt to commit a Class A crime, you can get a Class B sentence. Attempted murder leads to a Class A sentence.

The actual sentences for the classes are here (http://www.mainelegislature.org/legis/statutes/17-a/title17-Asec1252.html). It looks like there are no minimums, only maximums, for each class. For Class A crimes, it says:
So it looks like you could have your character could get just about any sentence you want, up to 30 years, for the attempted murder.

Hope that helps.

Thanks for this, and for everyone else who responded. I wanted to make sure the minimum wasn't something obscene (though I feel it should be obscene irl..) like thirty years because then it would pretty much throw my story out the window. I was hoping it could be somewhere around five or ten years, so this bit of information particularly works out for me. I'm not going to be covering the trial or anything extensively, I just wanted to be sure it would be feasible that he could get out after ten years.

Doing my own research I was honestly surprised that attempted murder sentences could be so light. In my antagonist's case, the only reason he doesn't end up murdering my main character is because the police get there just in the nick of time. It seems to me that someone who would murder a child should get a much longer sentence... but this works out for my novel just the same.

Thanks!

Edit: Okay, I haven't decided if the guy who pulls the attempted murder is actually going to act crazy or not. He's not really crazy, but he's essentially a demigod taken human form and if it'd get him a lighter sentence he'd have no problem playing that up so that the regular people would think "Oh god, this guy is a nutbag, he thinks he's some immortal wizard goofball." The entire reason for the (attempted) murder was for a ritual. He uses a knife to carve ritualistic designs into her body, and she almost dies from blood loss.

He has no prior history and has always been a model citizen.

I'm not sure her testifying matters because she's a) a child, and b) like I said above, the police intervened and saw what he was doing. If I can't get a sentence from this that's less than ten years, I might have to rethink how I do this because it can't be anymore than ten years. >:

jclarkdawe
03-15-2012, 09:53 PM
You're going to have problems. You've got a nut job that assaulted a child with a knife in a ritualistic fashion. So your starting point is a system that has become increasingly sensitive to child crimes with a crime that ticks people off even more then normal. And probably will end up in the paper. (Law enforcement is not done on an even fashion. Thirty years ago drunk driving was rarely prosecuted. Fifteen years ago the prosecutor wanted to hang every drunk driver. Now you've got a bit of room to negotiate the sucker, although only for first timers.)

If I took this to trial and lost, I'd expect something in the range of a 20 - 40 year sentence (Maine, if I remember right, does a minimum and a maximum sentence scheme. In this case, the guy will not be eligible for parole until 20 years have passed, and cannot be held by the prison until 40 years have passed. However, if he is released prior to the 40 years, he is on parole until the 40 years have passed.)

With the police walking in on the crime, you don't have much in the way you can argue that the crime didn't happen and your guy isn't guilty. On the other hand, whether the kid wants to testify or not ultimately is not a question. Both the Maine and US Constitution provides that a criminal defendant can confront their accuser, so the end result is the kid has to testify if this comes to trial. As nut job's attorney, I'd not going to waive this right, even though I know the kid's testimony is not going to help my nut job.

For a plea, what I'd try to put together is a package. And this is aiming to get a deal where he gets out in ten years (which in the real world would be very unlikely). I think I'd try a 12 - 30 year sentence, with the option of asking for a suspension of two years off of the minimum if the nut job did counseling in prison to resolve his weird ritualistic behavior. Assuming he did the counseling, and was of good behavior in prison, this would get him out in ten years, although still under parole. And keep reminding the prosecutor that this way the kid doesn't have to testify.

The other option is to have the prosecutor's case start to fall apart, but that's going to be difficult to do. But if you want to go that route, I'm sure I can think of something.

Best of luck,

Jim Clark-Dawe

Siri Kirpal
03-15-2012, 09:55 PM
Sat Nam! (Literally "Truth Name"--a Sikh greeting)

I think you're safe (or your story is anyway) with 10 years. Or even a little less.

ETA: I typed this as Jim was posting. Go with what he says; he's the expert.

Blessings,

Siri Kirpal

ironmikezero
03-15-2012, 10:24 PM
A word about keeping it plausible, and thus credible...

You'll have to treat the scene, in which the first police responders actually save the victim from imminent death, with some due care.

In reality, any perpetrator armed with a knife who is actively and aggressively demonstrating a clear and immediate threat to a child has a very low potential survivability factor. This is the sort of scenario wherein the application of deadly force by the police may be considered reasonable.

You'll have to craft circumstances in the scene that offer alternative potential solutions - otherwise, your antagonist is DRT... (dead right there).

Stijn Hommes
03-16-2012, 04:25 PM
With the police walking in on the crime, you don't have much in the way you can argue that the crime didn't happen and your guy isn't guilty. On the other hand, whether the kid wants to testify or not ultimately is not a question. Both the Maine and US Constitution provides that a criminal defendant can confront their accuser, so the end result is the kid has to testify if this comes to trial. Aren't children often shielded from having to testify if alternatives are available? In this case wouldn't it make sense for the police or other witnesses to file the charges and testify on his/her behalf?

jclarkdawe
03-16-2012, 05:11 PM
With the police walking in on the crime, you don't have much in the way you can argue that the crime didn't happen and your guy isn't guilty. On the other hand, whether the kid wants to testify or not ultimately is not a question. Both the Maine and US Constitution provides that a criminal defendant can confront their accuser, so the end result is the kid has to testify if this comes to trial. Aren't children often shielded from having to testify if alternatives are available? In this case wouldn't it make sense for the police or other witnesses to file the charges and testify on his/her behalf?

The Sixth Amendment of the US Constitution says:


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. emphasis added

The Maine Constitution at Article 1, Section 6 says:


Section 6. Rights of persons accused. In all criminal prosecutions, the accused shall have a right to be heard by the accused and counsel to the accused, or either, at the election of the accused;
To demand the nature and cause of the accusation, and have a copy thereof;
To be confronted by the witnesses against the accused;
To have compulsory process for obtaining witnesses in favor of the accused;
To have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity. The accused shall not be compelled to furnish or give evidence against himself or herself, nor be deprived of life, liberty, property or privileges, but by judgment of that person's peers or the law of the land. emphasis added

In the US, the Constitution, both state and Federal, are the ultimate source of rights and limitations in criminal cases. The idea behind this provision was to prevent the government from inventing cases where there was no victim. So unless a criminal defendant waives this right, the victim has to testify.

Now this can be modified in some cases, for instance having the victim testify on camera with the defendant in another room, but any of the modifications present issues. But this right is a factor in why many cases involving children end up pleaing out, on terms that do not please the prosecutor.

Best of luck,

Jim Clark-Dawe