Today the final jury strikes were taken, the lawyers made their opening statements, and the prosecution started calling witnesses. When things wrapped up Tuesday night, 28 jurors had been qualified, and the expectation was that one would be struck for cause because of the concern that she might not be able to change travel plans. This morning, two of the 28 were excused for reasons that were not made public. Although the original plan had been for three alternates, there are now 14 in the jury box — two alternates. The judge will draw lots at the end of the case to decide who the alternates are; until then, all 14 will hear the case.
Both attorneys were quite thorough in their opening statements. The prosecution laid out essentially the same version of things as it had in the preliminary hearing, though some additional details were revealed. Both attorneys described two young people in what was described as an “open” relationship. Both attorneys described two young people who were drinking way too much. Yeardley Love’s blood alcohol level, apparently taken from the autopsy, showed a reading of .16 to .18 — more than twice the legal driving limit. Any toxicologist will say that someone at a .16 will lose coordination. Someone with a .16 may have significant changes in her demeanor — she may be more likely to become angry, or combative, or argumentative. According to the opening statements, witnesses will describe George Huguely as being intoxicated, though there is no way to know the precise level of his BAC.
Perhaps the most dramatic revelation in the prosecution’s opening was that about 4 days before Yeardley Love died, George Huguely was angry because she had had sex with someone else. He sent her an e-mail that said, “I should have killed you.” This was followed up by e-mails about how they should get together to meet and talk about it.
*** CORRECTION ***
I’m not trying to make this blog archival, but I don’t want it to be wrong either. Sharon e-mailed me to say that the part that followed here was wrong. So let me get it right.
I had described what I had understood to be the entire e-mail as “I should have killed you. You should have killed me. You’re so [profanity] up.” In fact, what happened was that Huguely had e-mailed Love, saying “I should have killed you.” Love responded to that e-mail: “You should have killed me? You’re so [profanity] up.” That makes a lot more sense. *** END OF CORRECTION *** Thank you, Sharon, for setting me straight.
The defense opening was trying to set up a number of mental state defenses. The opening suggests that the defense will focus on three issues of fact:
- How drunk was he?
- When he went into Yeardley Love’s apartment, did he intend to do anything other than talk/argue with her? In particular, did he go in with the intent to steal her laptop? Or with the intent to assault her?
- How exactly did she die?
Here’s why these matter.
First, as a general matter intoxication is not a defense to a criminal charge. The defendant can’t say, “Judge, I know I’m charged with shoplifting that watch, but man, was I drunk! I didn’t mean to take it — I was just so messed up!” That is not a defense. The one exception is in a first-degree murder case. The defense can argue, “I was so drunk, I couldn’t possibly have formed the intent to kill her.” The distinction is sometimes said to be that intoxication is a not a defense to a general criminal intent, but it can be a defense to the Commonwealth’s burden of proof on premeditation.
But there is a somewhat more subtle point here. The Commonwealth doesn’t have any witness who will say, “George Huguely told me that he was going over there to kill her.” So they will have to argue on the basis of circumstantial evidence that he must have meant to kill her. One line of argument that they will rely on is based on a jury instruction that the judge will give that the jury can infer that the defendant intended the ordinary consequences of his intentional acts. To put it more baldly, if George Huguely intentionally did something that caused her death, we can conclude that he intended that she die. In other words, the fact that she died as a result of something that he did to her can be evidence all by itself that suggests that he meant for her to die. But when the Commonwealth is basing its case on this attempt to assess what George Huguely knew, or what he observed, and whether the reasonable person in his situation would have realized what was going on, the question then becomes whether he was a “reasonable” person. The evidence will strongly suggest that he was drunk. The toxicologists will testify that someone who is drunk won’t observe as closely as someone who is sober. Someone who is drunk won’t mentally process conflicting bits of information in the same way as someone who is sober. One fact that the Commonwealth will talk about is that after George Huguely left Yeardley Love in her room, she apparently lived for up to two more hours. The argument will be made that he must have meant for her to die, because he left her alone and bleeding, and over the next two hours she died when she could easily have been saved. But if Huguely was drunk and was not aware in the same way as a sober person would be of what was happening around him, perhaps we shouldn’t say that he is just as responsible as someone who was stone cold sober and who realized that she had suffered a serious, bleeding wound and left her alone to die. The argument will be made in terms of the jury instruction that says that intoxication can be a defense to premeditation, but don’t be surprised if the argument occasionally morphs.
The second point is to ask why he broke down her door. He is charged with two different forms of burglary. One requires proof that he broke and entered into her property in the nighttime with the intent to commit a felony or larceny. The other requires proof that he intended to assault her. Under either indictment, it is not burglary if he broke down the door with the intent of getting into an argument with her. He had no weapon. He wasn’t carrying a sack to take away things that he might steal. But wait, you say — he took her laptop when he left! But that turns the question back to his intent when he went in — not when he left. Can the prosecution prove beyond a reasonable doubt that he intended to steal anything when he went in? Or beyond a reasonable doubt that he intended to assault her when he went in? In his first statement to the police, George Huguely told the police that he took the laptop because he wanted to force her to come talk to him — “collateral,” he called it.
And in the confusing morass of criminal charges here, this question of burglary turns out to be key. George Huguely is charged with two different kinds of murder. He is charged with first-degree murder — an allegation that he intended to kill her and he did. He is also charged with felony murder, which alleges that he killed her in the commission or in the attempted commission of robbery. The indictments are a little unusual, in that he is charged with two different violations of the same statute.
§ 18.2-32. First and second degree murder defined; punishment.
Murder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony.
All murder other than capital murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.
So let’s think just a minute about lesser-included offenses. Under one of the indictments — the one alleging premeditated murder — if the prosecution does not establish beyond a reasonable doubt that he premeditated, the jury may find him guilty of second degree murder. Under the other indictment — the one alleging a killing in the commission of robbery — if the jury finds that there was no robbery, there should be no lesser included offense.
Let’s take one more step down into the rabbit hole here.
If the Commonwealth cannot prove that George Huguely intended to steal or to commit an assault when he broke in to Yeardley Love’s apartment, they have no burglary. If the Commonwealth also cannot prove that he intended to kill her, they have only manslaughter. If he killed her accidentally, and without an intent to kill her, this may end up as a manslaughter charge, punishable by up to 10 years.
The last issue that was foreshadowed by the defense in the opening today is the question of what caused her death. It has been widely reported that Huguely confessed to having banged her head repeatedly on the wall. I have not seen his statement, so I don’t know if those press reports are accurate. But there are two facts that suggest that that statement is not correct. First, there was no damage to the wall. Second, neighbors report hearing one thud, not repeated thuds, and the walls were said to be thin. The autopsy apparently shows a lot of brain stem bleeding, which the Medical Examiner will say is consistent with repeated head-banging on the wall. The defense will bring in experts who will offer a different take on the medical evidence. They will argue that all of the facts are more consistent with George Huguely and Yeardley Love wrestling on the bed, falling off the bed (the thud that the witnesses reported hearing), and suffering damage to her neck and throat during the struggle and during the fall. Huguely told the police that he thought she just had a bloody nose; he put her back in her bed and left. Their expert will apparently testify that she died of “positional asphyxia,” meaning — like a young baby — she rolled onto her stomach and her face was then covered by the pillow and she was asphyxiated. Again — an accidental death, not intended by anyone, with a relatively innocent explanation.
I represented a man on a murder charge a few years ago who got into a fight with a drunk. The drunk fell down during the fight, and he hit his neck on a concrete stop barrier at the end of a parking space. He died of brain and spinal cord injuries. My client was charged with murder because there was some suggestion that perhaps he had kicked the man while he was down, and that was why the victim had head and neck injuries. We were able to establish from the Medical Examiner’s testimony that a fall with his neck hitting in just the wrong place could cause a disproportionately large amount of bleeding into the brain stem area and an unusual injury to the neck that was the real cause of death.
I expect that the defense will be headed in a similar direction with this. Caution — I am not a doctor, though my mother wanted me to be one. All I know is what I have seen from handling a lot of these kinds of cases. But it seems pretty clear that the cause of death will be the subject of a LOT of trial time, and a lot of expert witness testimony.
The testimony today was mainly from family, who testified about coming to get Yeardley’s things from her room, and from friends and people who lived in the building who talked about seeing her lifeless body and trying CPR. My guess is that we will hear from any more of those witnesses first thing tomorrow morning, and then the trial will turn to the forensic side, as the police officers will come in to testify about their crime scene workup.
You can find WVIR’s coverage here.
