The Michigan Supreme Court says the fear of being killed or physically harmed can be used as a defense against charges of second-degree murder. That decision was released by the court Thursday.
Theresa Gafken was fleeing police in a car chase at speeds that exceeded 100 miles an hour at times. During the chase, she ran a red light, resulting in a crash where Kristine Donahue was killed and several others injured. Her defense against a charge of second-degree murder was that a passenger was holding a gun to her ribs and threatened to kill her if she stopped.
Two counts of driving while intoxicated against Gafken were dropped. But the prosecutor said there was no provision that allowed for dropping the charge of unintentionally causing death and she was convicted of second-degree murder.
The Supreme Court, in a divided set of majority, concurring and dissenting opinions, acknowledged Michigan law does not have specific provisions to address these types of situations.
But the majority held Gafken has the right to make the argument and let a judge and jury decide. “A defendant is constitutionally guaranteed the right to a ‘meaningful opportunity to present a complete defense,’” said the majority opinion written by Justice Bridget Mary McCormack. Also, the choice was not as stark and simple as “kill or be killed,” she wrote, but “…lose one’s life or commit a lesser felony than intentional murder (here, reckless driving and fleeing from law enforcement).” “A jury may agree with the prosecution—Gafken has a right to find out.”
In a dissent, Chief Justice Elizabeth Clement argued the charge and the conviction were appropriate. She said second-degree murder applies in cases where there is “intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result.”
Justices David Viviano and Brian Zahra dissented, arguing among other things that Gafken had given up on that defense during her trial and she was not entitled to an appeal. The case returns now to the Saint Clair County Circuit Court.
