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Over twenty years ago in State v. Cave, 240 Neb 783 (1992), the Nebraska Supreme Court declined to decide whether or not the State had to prove the lack of a sudden quarrel to convict a person of second degree murder. The Cave Court had concluded there was insufficient evidence of a sudden quarrel but failed to say how much evidence it takes to be enough. Now 20 years after trying to make "malice" an element of second degree murder the Court finally says the constitution requires the State to prove the lack of a sudden quarrel beyond a reasonable doubt in State v. Smith, 282 Neb 720 (2011). Requiring the State to prove the lack of a sudden quarrel secretly adds "malice" back into second degree murder. The Nebraska Supreme Court first did that 20 years ago in State v. Myers, 244 Neb 905 (1994). The public's outrage over Myers resulted in the removal or retirement of every Nebraska Supreme Court judge involved in that decision; yet there has been no such public reaction to the Smith decision.
The Smith decision sneaks "malice" back into second degree murder without actually using the word, "malice." The definition of "malice" in Nebraska requires three things: (1) the intentional doing of (2) a wrongful act (3) without just cause or excuse. See, State v. Smith, supra. The elements of second degree murder already include two of these. Second degree murder is: (1) the intentional doing of (2) the wrongful act of causing the death of a person (3) without premeditation; Neb.Rev.Stat.§ 28-304. Premeditation is what separates first degree murder from second degree murder; manslaughter is without premeditation too.
The Smith Court now adds the third part of "malice" to second degree murder. It is now (1) the intentional doing of (2) the wrongful act of causing the death of a person (3) without (i.e., the lack of) the legal excuse of a sudden quarrel; by definition, "malice"; and still without premeditation. Where the Myers Court was honest about "malice," the Smith Court has relied upon the public's ignorance of the legal definition of it.
With the Smith decision, "malice" now becomes a distinction between second degree murder and manslaughter. Manslaughter has always been "without malice"; see, Neb.Rev.Stat. §28-305. But Smith went even farther and reversed the prior decision in State v. Jones, 245 Neb 821 (1994). The same judges in Myers decided in Jones to remove the element of "intent" from manslaughter. Jones had made "intent" the distinction between second degree murder and manslaughter. But with the Smith Court putting "malice" back in that role "intent" was no longer needed, so they fixed Jones too, even though it had nothing to do with Smith's case.
Can they do that? Remember that Myers was reversed in Statev. Burlison, 250 Neb 190 (1998). The Burlison Court's new majority, who had replaced the Myers Court judges, not only said "malice" was never in second degree murder, they also said the Nebraska Supreme Court did not have the power to change the definition of the crime. Since the Burlison judges are still the majority for the Smith decision, what has changed their minds about what power the Nebraska Supreme Court has? Do they think they have the power to define "malice" back into the crime so long as no one is smart enough to figure out what they did and complain?
The Smith Court shows they know, at least, two things. First, they understand the need for two different crimes to have a distinction between them. They don't overrule Jones with its old distinction until after they make "malice" the new distinction. Second, by reversing Jones, they show they understand the legal charades that have taken place over the last 20 years.
Both the State and Federal Constitutions require a distinction between second degree murder and manslaughter. Allowing prosecutors and juries to make an arbitrary choice between the two violates the Due Process of Law; Mullaney v. Wilbur, 421 U.S. 684 (1976). Any fact that can increase the penalty from 20 years for manslaughter to Life for second degree murder is an element which distinguishes between the two crimes and must be proven to a jury beyond a reasonable doubt; Apprendi v. New Jersey, 530 U.S. 466 (2000).
Whether you call the distinction "malice" or "lack of a sudden quarrel," it is plain that neither of these is a part of the Nebraska second degree murder statute, Neb.Rev.Stat. §28-304:
(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.
The statute's failure to provide fair warning of this distinction makes the statute itself inadequate and unconstitutional; Kolenderv. Lawson, 461 U.S. 352 (1983). Nebraska's second degree murder statute still permits the arbitrary choice between the two crimes, violating the Due Process of Law. Every Nebraskan's' rights, that are supposed to be guaranteed by the U.S. Constitution, cannot and will not be respected until the statute is corrected.
The Smith decision, once again, hides the problem. Both the Cave and Smith Courts found there was insufficient evidence of a sudden quarrel. This begs two questions: (1) Who has to present evidence of a sudden quarrel? and (2) How much evidence does it take to be sufficient? The answers to these questions reveal the problem with Smith.
First, "WHO" cannot be the defendant. The burden of presenting evidence cannot be shifted to the defendant because the sudden quarrel is still a material and traditional element of the crime of Manslaughter in Nebraska. Boche v. State, 84 Neb 845 (1909). Requiring a defendant to present evidence of a material element of a crime also violates the Due Process of Law; In re Winship, 397 U.S. 358 (1970). A defendant has a right to remain silent, present no evidence, and still require the State to present evidence beyond a reasonable doubt of every distinction that defines a crime; Virginia v. Black, 538 U.S. 343 (2003); and a statute that fails in every case to hold the State to that requirement is facially unconstitutional. Id.
Second, the question of "how much" evidence is sufficient shows the other arbitrary choice. Why would a prosecutor who wants to get a conviction for second degree murder present any (let alone "sufficient") evidence of a sudden quarrel? They can simply choose to present no evidence at all of a sudden quarrel. Even if the Nebraska Supreme Court were to say how much it took, that would just give prosecutors the chance to present just a little less than required and still get their desired conviction for second degree murder.
Leaving this arbitrary choice allows prosecutors to choose not to present evidence of a sudden quarrel only against, say, black defendants. That would be an obvious case of racial discrimination, yet Nebraska's statute can't prevent that. Even if a defendant was convicted after Myers or Smith there was and still is nothing to prevent using second degree murder as the crime of "shooting while black." More than one Nebraska defendant has not been so "Lucky." Where is the vindication of their constitutional rights? This is precisely why a criminal statute, like Nebraska's second degree murder statute, which cannot prevent its' arbitrary or discriminatory enforcement is unconstitutional and cannot be enforced.
The only way to truly and finally fix this problem is to correct the Nebraska criminal statutes that define these crimes. Only the Legislature has the power to do that; Huddleston v. U.S., 415 U.S. 814 (1974). But such a change would reveal the true nature of this problem and embarrass the people who control Nebraska's judicial branch of government. Since Nebraska's Legislature is controlled by lawyers from the judicial branch that solution is not likely to happen. Throwing Supreme Court judges out at the ballot box seems to be Nebraskan's' only way to defend the U.S. Constitution. No wonder those Supreme Court judges try to use voter's ignorance of the law and the Constitution against them and to protect only themselves.