Is Pushing Someone on Train Tracks “Attempted Murder?”

I have to admit: when real life presents hypotheticals that are academically interesting for lawyers, I get a little bit excited.  Last year, a man named Kimani Stephenson made one for the law books when he pushed a woman onto New York City subway tracks.  The victim described it as follows:

“This guy, he came up behind me and he grabbed one of my boobs with one hand, and he grabbed my vagina. I told him to fuck off, and he pushed me onto the train tracks,” she recalled.

“There was no train coming, thank God,” Currie said. “I keep playing the scenario over in my head. There weren’t any MTA police on that particular track, so I don’t know what I would have done if there hadn’t been bystanders.”

Clearly, the defendant is guilty of assault and other crimes, but is he guilty of attempted murder?

At common law (the law we inherited from the British), attempted murder requires 2 things: 1) taking an action towards the death of someone (a “substantial step”), and 2) the intent that your actions result in the death of that person.  That second part is called a “specific intent” requirement.  That is, it’s not enough that you did what you did on purpose, but rather that you must, in your own mind, intend a specific result.  Modern New York law on the matter doesn’t substantially deviate from the common-law view.

The first element is not very interesting: pushing someone on a train track is undoubtedly a substantial step towards murder.  The second element is where the fun is.  Like any good law school essay question, you can argue that specific intent both ways.  You can argue that one doesn’t push someone onto train tracks unless they want them to die.  However, if your law school essay doesn’t also pick out the words, “There was no train coming,” you lost major points on this question.  The defense will argue that pushing someone onto an empty train track is unlikely to cause death and shows that the defendant didn’t actually intend that the victim die from the actions.

But New Yorkers love throwing the book at the bad guy, and so when Manhattan ADA Maxine Rosenthal decided to press attempted murder charges, the local Reddit community cheered:

Reddit Does Not Like Kimani

…and I was mocked for being a soft on crime or ignorant on the law, including by several “Internet lawyers,” for trying to explain the above…


Unfortunately, no charity will be getting a $500 donation, as a Manhattan jury acquitted Mr. Stephenson of attempted murder last week:

“We felt he acted in a fit of rage and he wasn’t thinking enough to have premeditated anything,” said juror Catherine Wald, 64.

“There was no argument, proof or any evidence he had intent in the moment to kill her even though we all got convinced he was the perpetrator,” added foreman Dmytro Zhuravtsky, 44, who works in quantitative research at a large financial institution.

Fear not: the perpetrator still faces 25 years in prison on the first degree assault charge (which, if I’m reading correctly, comes with a 5 year mandatory minimum).  But, say it with me: it’s not attempted murder unless the defendant actually intended that the victim die.  On the situation presented here, I don’t know how the ADA intended to prove the specific intent beyond a reasonable doubt.  The charge should not have been brought.

The ADA and defense counsel were contacted for comment but have not replied as of the publication of this story.

11 thoughts on “Is Pushing Someone on Train Tracks “Attempted Murder?”

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  1. Whether a train was coming seems irrelevant. The NY subway tracks are electrified, so he was pushing the woman into a lethal threat. Although NY some time ago set up safety shields in the train stations, those are not guaranteed to protect someone, especially if water is in the track area. It would be easy for someone to contact the third rail in this scenario.

    This seems to me to be prima facie evidence of murderous intent, no different than pushing someone off a second floor balcony. Yes, it’s possible the victim will survive, but death is such a likely outcome that attempted murder seems a provable charge.

    1. “Lethal threat” = irrelevant for specific intent.

      The state had to prove, beyond a reasonable doubt, that at the moment he pushed her, he intended that she would actually die. Not intended to hurt her, to make a lethal threat, to put her in grave danger, etc. In this case, there was no way to prove that beyond a reasonable doubt.

  2. There is no accounting for jury behavior, of course. So the fact that he was aquitted means nothing concerning whether he should have been charged or was actually guilty. I don’t know how the prosecution argued its case, but attempted murder seems to clearly be a reasonable charge. No less than if a bank robber shoots at a pursuing cop.

  3. I don’t know any more about this case than what is presented here, and I am not a lawyer, but it seems to me that, had the woman died, manslaughter might have been a more likely charge. There are just too many ways to explain a shove that don’t involve intent to kill. Fortunately, she didn’t die, but that also leaves the DA in a situation where they can’t charge manslaughter (and I don’t think “attempted manslaughter” exists since that doesn’t make logical sense). Attempted murder was probably the best attempt at trying to have a charge for each part of the incident even though they had to have a fairly strong sense that that particular charge wouldn’t lead to a conviction.

  4. Thinking about the “high risk of death does not prove intent to kill”. Picture two scenarios:

    Guy 1 picks up an airsoft gun thinking that it’s a real gun and shoots another guy with it wanting to kill this other guy and expecting it to work.

    Guy 2 picks up a real gun thinking it’s an airsoft gun and shoots another guy with it thinking it’ll be harmless and the other guy actually dies.

    The first scenario has no risk of death, but intent to kill; it will be attempted murder. The second scenario is actually more common because of how police train, although a live weapon dry-fired only it wasn’t quite dry tends to be the case. Police officers kill their best friends this way, and while it ruins careers, I’ve never heard of it attracting serious charges.

  5. I think the short answer is it depended on what the interrogators got the guy to say while in custody. As we all know, a criminal defendant is often his own worst enemy. An admission that he knew there were xXxX volts running through the charges rail or that a train was expected shortly would have done it. In jurisdictions where the DAs play even dirtier than NYC, the witness who heard him say “die, bitch!” would potentially have done it.

    But, I guess kudos tonite jury for actually following the law…? And here’s hoping that guy gets the whole 25. Which, incidentally is 10 years longer than attempted murder in my state.

  6. Right. Proving attempt requires proving the specific intent to commit the target crime, as well as a substantial step toward it. That wasn’t going to happen in this case. The prosecution could not prove that he had the specific intent to kill her when he shoved her onto the track.

    But, consider this, if a train HAD come barreling down the track, killing the victim, the defendant would have easily been convicted of either 1st or 2nd degree murder based on depraved heart/wanton conduct in disregard for human life.

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