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:
…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.