What the horrific hazing death of Florida A & M University (FAMU) Drum Major Robert Champion is, is a profound tragedy. It is also every parent’s nightmare. It is the epitome of youthful stupidity, ignorance and excess. It is extreme bullying and calloused behavior masquerading as tradition. It is the last thing any of us with college-age children expect when we entrust their futures to institutes of supposed higher education and learning; and it is positively a crime. What it is not, though, is murder and critics who are now suggesting otherwise are either uninformed or misunderstand the applicable law.
Yes, as anyone intuitively knows, one can assault and beat another to death with naked fists and be guilty of murder. And yes, any individual(s) who holds or restrains a victim while another delivers a fatal blow can be just as guilty of murder on a joint venture (aiding and abetting or "aided") theory of criminal liability as the actual assailant; and yes, one who is actually identified as delivering the fatal blow itself, or is proven to be the direct and proximate cause of death, despite the involvement of others, can be singled out for murder , while his co-defendants are charged with lesser offenses. Nonetheless, in the FAMU fatal hazing case, prosecutors are correct not to charge the thirteen (13) alleged assailants with murder, regardless of how outrageous the conduct may have been. This is because to sustain a charge of murder, the government must prove beyond a reasonable doubt that the defendant(s) committed an unlawful killing with malice (aforethought). Malice, in the context of murder, is defined as the intent to cause death or grievous bodily harm. It can also mean acting in a manner where a reasonable person would know a plain and strong likelihood of death will result. In the FAMU case, indeed in virtually any "hazing" case, it is difficult to credibly argue that conduct of the perpetrators, regardless of how stupid or depraved, indifferent or irresponsible, was intended to cause death or grievous bodily harm. Because of this, the question is fairly raised: if not murder, why not Manslaughter in egregious hazing cases?
In most states, an unlawful killing that is not murder (in the first or second degree) is either Voluntary or Involuntary Manslaughter. The elements of Voluntary Manslaughter (called more simply, Manslaughter, in some states) are actually more nuanced than people think. While it’s true that Voluntary Manslaughter is often best described as an unlawful killing without malice (or malicious intent), it is essentially a reckless killing or a killing done in the heat of the moment or passion. It often falls into certain classifications, including killing resulting from provocation and killing resulting from mutual combat. In other words, the allegations in the FAMU hazing death are not consistent with the requisite elements of proof and any possible theory of liability for Voluntary Manslaughter.
Involuntary Manslaughter in most states is an unintentional killing where the defendant acted with culpable negligence (or gross, or criminal, negligence) or failed to use reasonable care in performing a lawful act. In most states the level of negligence required to sustain a conviction for Involuntary Manslaughter is more than the ordinary negligence standard in civil cases. Florida, where FAMU is located, requires the government to prove Culpable Negligence beyond a reasonable doubt. Culpable Negligence is defined as "a disregard for human life while engaging in wanton or reckless behavior". While those elements could be a prosecutorial fit for the FAMU case, there is more than enough room for an experienced defense attorney to work with under the legal and statutory definition of the crime. That’s why Florida Legislators were prescient to codify "Hazing Resulting in Death" as a third degree felony. It’s simple, to the point, spot-on in terms of applicability, and serves ample notice and fair warning to any would be malefactors.
While there are those, especially the parents of Mr. Champion, who might argue that a maximum possible sentence of 5 yrs in prison as Florida’s Death by Hazing Statute calls for is not nearly enough of a deterrence, or compensation for the loss of a beloved son, any state without such a specific statute on the books, including Massachusetts, if truly serious about eradicating the dangerous and senseless behaviors that often accompany hazing, would be wise to follow Florida’s lead in this regard in order to avoid the pratfalls (and criminal defense windfalls) that often occur when prosecutors try to fit square pegs into round holes in order to send a message. I apologize to my fellow defense practitioners for giving away inside-baseball secrets and perhaps making our job that much harder through this blog. But hey, while it’s possible I will one day no longer be a defense attorney, I will always be parent.
If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828