The judge who convicted Michelle Carter of involuntary manslaughter for her role in encouraging her boyfriend’s suicide through days of text messages and voice calls made the correct decision under state law.
Carter was already guilty in the court of public opinion. Most rational people saw the text messages, by now matters of public record, as the simultaneous causes of both heart-wrenching sympathy for the victim, Conrady Roy III, and of gut-churning loathe toward the defendant.
Of course, not living up to the public’s expectations is not grounds for a criminal conviction. The law, not the heart, and certainly not the stomach, must rule the day.
Under Massachusetts law, involuntary manslaughter is a common law crime. The penalty is provided by statute. The actual elements of the crime are contained not under any law passed by the legislature, but rather by prior judicial decisions.
In Commonwealth v. Levesque (2002), the Commonwealth’s highest court defined involuntary manslaughter as an “unintentional” homicide caused by “an act” which disregards “harmful consequences” to another person and “constitute[s] wanton or reckless conduct.”
A judge agreed Michelle Carter’s conduct fit that definition. Here’s how the judge got there. Many key words are at play.
How Did Michelle Carter “Act” If She Wasn’t With Conrad Roy When He Died?
The court’s requirement of “an act,” the case points out, “usually” requires an “affirmative act,” such as “driving an automobile or discharging a firearm.” However, the requirement of “an act” can also include “an omission . . . where the defendant has a duty to act.”
Does that mean that failing to act legally constitutes “an act”?
Yes, it does. It’s convoluted, but sometimes, a failure to act when you should have acted can in some cases land you in criminal trouble – at least in Massachusetts.
Levesque highlights a simple legal lesson. Generally, “one does not have a duty to take affirmative action.” If you walk past a lake and see a man drowning, you have no legal duty to rescue him. (How many times have you heard of rescuers themselves dying?)
However, if you shove a man into a lake and stand idly by as he drowns, you’re on the hook, and Levesque makes that clear.
Levesque states that “a duty to prevent harm to others arises when one creates a dangerous situation, whether that situation was created intentionally or negligently.”
One of the critical buzzwords there is “negligently.” The curious twist for trial watchers is that this area of Massachusetts criminal law imports the duty of care usually found in civil personal injury law. That duty is to act reasonably.
Some might find that unique, but that’s how they roll in Massachusetts: “[t]he civil law creates a specific duty that we may apply to the situation in this case,” Levesque points out.
Here’s how the court has applied this standard in other cases:
A nightclub owner in Commonwealth v. Welansky (1944) was guilty of involuntary manslaughter because he invited patrons into his business but failed to provide a “safe means of escape” when a fire broke out. Failing to provide fire escapes makes for a pretty clear case of negligence in civil law, but the failure to act – namely, to build an escape – was enough to constitute “an act” or a “failure to act” for purposes of involuntary manslaughter.
Parents in Commonwealth v. Twitchell (1993) failed to provide medical care for their child. The child died. The court upheld their involuntary manslaughter conviction because the parents had a civil law duty to sufficiently support their child, which the court found they did not do.
The principle stuck at least once in federal court. The Tenth Circuit in 1997 found a defendant could be criminally liable for leaving a robbery victim “badly beaten in [a] cold and remote location.” As the court reasoned, “when a person puts another in a position of danger, he creates for himself a duty to safeguard or rescue the person from that danger.”
Massachusetts decisions note that both Indiana and Montana have recognized the same legal rule.
The judge who convicted Michelle Carter focused not so much on the text messages between Carter and Roy, but rather on Carter’s message to a friend where she admitted to more or less ordering Roy back into a truck filling with carbon monoxide. This, the judge found, placed Roy in a position of danger, and Carter’s failure to act in that instance got her in trouble.
What does this have to do with “wanton or reckless conduct”?
Though negligence law forms the basis of the Massachusetts presumption that in some cases, individuals have a duty to rescue someone they themselves have put in harm’s way, conduct that is merely negligent does not automatically become “wanton or reckless” for purposes of involuntary manslaughter.
Conduct which is “wanton or reckless” is “intentional conduct involving a high degree of likelihood that substantial harm will result to another.” The Levesque court points out that “the risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant’s election to run that risk or of his failure reasonably to recognize it.”
The Levesque court found that the failure to report a spreading fire which they could not themselves control was wanton and reckless for purposes of sustaining an indictment on involuntary manslaughter charges.
Welansky (1944) even notes that “a defendant can be convicted of manslaughter even if he was so stupid or so heedless” to not “realize the grave danger” another person faced “if an ordinary normal man . . . would have realized” it.
Did Carter’s Phone Call With Roy Actually Cause His Death?
This is an angle Michelle Carter’s attorneys attacked vigorously. The judge ultimately ruled that Carter, as Conrad Roy’s girlfriend, exercised enough power over him and over a long enough time to wear down his own free will. That’s certainly one rational way to look at the text messages.
Causation is a relatively loose standard under Massachusetts involuntary manslaughter law. Causing a death does not necessarily mean providing deadly implements to someone who is suicidal or even helping a suicidal person pull the trigger. Commonwealth v. Rhoades (1980) makes clear that causation is “the efficient cause,” or “the cause that necessarily sets in operation the factors which caused the death.”
The Levesque court supported an indictment where the occupants of a warehouse accidentally lit a fire. They couldn’t control it from spreading, so they took off and never bothered calling the fire department. Eventually, six firefighters died trying to control the inferno which resulted.
The court noted that the delay in reporting the fire caused it to spread, and ultimately caused the deaths of the firefighters.
The Michelle Carter judge found similarly that Carter herself “set in operation the factors which caused the death” of Conrad Roy III. A review of the court record supports this conclusion.
But, Wait, Didn’t Conrad Roy Do This To Himself?
Yes. But again, Levesque answers that question. The defendants who lit the accidental fire said the firefighters themselves didn’t properly navigate the “maze-like” structure or recognize the peril. The court didn’t buy that the firefighters caused their own deaths, even though the firefighters were the ones who got into their truck, drive to the scene, donned their gear, and rushed into the flames. The defendants who accidentally lit the fire were also to blame.
To get there, the Levesque again drew from tort law: the acts of an intervening third party will only “relieve a defendant of culpability” if the victim’s “response was not reasonably foreseeable” (quoting Commonwealth v. Askew (1989)).
Here, when Michelle Carter spoke with Conrad Roy in the middle of his suicide attempt, she knew Conrad Roy III had already discussed suicide for days, had already gotten into a truck, had already rigged up a way to inhale deadly carbon monoxide fumes, and, indeed, was in the middle of doing so. When Roy realized it was working, he got out of the truck and called Carter. Carter told him to get back in and to stop stalling.
Carter might have been able to argue that she had no clue Roy would actually carry out his own suicide plan since he had tried and failed to do so many times previously.
But that evidence isn’t on the record. The text messages between Carter and a friend after Roy’s death revealed that she knew he was moving forward and that she felt responsible:
“[H]is death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the car because it was working and he got scared . . . I [expletive] told him to get back in . . . because I knew he would do it all over again 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.”
Does Carter Have A Good Chance On Appeal?
Probably not in Massachusetts state courts. The state’s high court has already looked at the case through an appeal challenging the sufficiency of the indictment. The high court already said that “there was evidence that the defendant’s actions overbore the victim’s willpower . . . that the victim’s return to the truck after the defendant told him to do so was not an independent or intervening act that, as a matter of law, would preclude his action from being imputable to her . . . to ignore the influence the defendant had over the victim would be to oversimplify the circumstances surrounding his death.”
The ACLU and others have cried foul about this case by arguing that speech shouldn’t be criminalized under the First Amendment. We might see arguments in federal court that the Massachusetts common law definition of involuntary manslaughter is too vague to stand up against the First Amendment. With prior precedent as my guide, I don’t see those arguments sticking in state court.