JUSTIFIABLE HOMICIDESELDON-INVOKED LAW LEADS TO OVERTURNING OF MURDER CONVICTION

Latricia Brown murdered her boyfriend, Melvin Wilson, in 1989 and was sentenced to 13 years in prison in a case barely noticed by the press.

Now, after spending more than three years behind bars, Brown, 47, has had her conviction overturned by an appellate court, saying a Maricopa County judge failed to tell the jury about Arizona's little-known but controversial "Make My Day" law (A Law Dirty Harry Would Love," February 26, 1992).

The law gives Arizonans a far-wider latitude to kill than the traditional laws of self-defense. It's a minefield for prosecutors. A person now is presumed to have acted "reasonably" if he or she kills to prevent or halt several specified crimes--sexual assault and kidnaping, in Brown's case.

Arizona is one of the few states to have such a sweeping law to justify deadly force. Brown's conviction appears to be the first one overturned because a judge--in this case Ronald Reinstein, Maricopa County's presiding judge for criminal matters--didn't instruct the jury on the Make My Day law.

The details that led to Wilson's shooting death were sadly typical of such domestic-violence cases:

Prosecutors argued Brown had slain Wilson because she believed he had another girlfriend. Brown countered that Wilson had raped her on the day he died, a few hours after she had self-induced an abortion of Wilson's child.

After the rape, Brown testified, Wilson had told her he wouldn't leave until she stopped crying; nor was she free to leave. That, her attorney argued, had constituted kidnaping.

Brown admitted she had then pulled a gun from beneath the bed and shot at Wilson twice. Passers-by found Wilson's naked body outside the home in the early-morning hours of August 16, 1989. An autopsy revealed he had been shot four times, at least once in the back.

Brown fled in Wilson's car and surrendered to Los Angeles police the following day. Evidence at Brown's trial showed she had been diagnosed before the murder as a manic-depressive with a history of mental illness. Brown's attorney argued she had suffered a "brief reactive psychosis"--a fancy phrase for temporary insanity--as a result of the alleged rape.

The Indiana native and graduate of a theology college took the stand in her own defense during the four-day trial. But the jury didn't buy her story and convicted Brown of second-degree murder after deliberating less than a day.

Adult-probation officer David Wilcox wrote of the Brown case in a presentencing report: "The evidence seems to indicate a cold-blooded killing in which the victim was initially wounded, chased down a flight of stairs and killed while he was lying in a prone position. . . . There was a lack of justification for her actions."

In early 1992, as the Arizona Court of Appeals considered her case, Brown wrote Judge Reinstein from the Arizona State Prison, where she was serving a 13-year sentence without chance of parole. Reinstein responded, "As to your final question of 'Where is justice?', all I can tell you is that you were tried by a jury who made a determination that you were guilty."

But the Arizona Court of Appeals ruled unanimously last April 27 that Reinstein had erred by not including the Make My Day law in his instructions to the jury. Judge Rudy Gerber--who authored a key appellate ruling in December 1991 that widened the parameters of the law--wrote the opinion in the Brown case.

In the 1991 case, Gerber extended his sympathy "to any trial judge who may eventually need to compose a jury instruction" on the Make My Day law. But Judge Gerber showed no such sympathy to trial judge Reinstein for not instructing Brown's trial jury on the law.

"The [Make My Day] law would permit the jury to find the shooting reasonable," Gerber wrote in overturning Latricia Brown's conviction, "regardless of whether Brown fired all or only some of the shots in her bedroom."
It's ironic that a crime-prevention statute honed by conservative law-and-order types in the Arizona State Legislature has brought them into conflict with Arizona's prosecutors.

As Judge Gerber explains in an interview with New Times: "The original intent of the crime-prevention law was to permit very limited use of force to prevent just a few crimes, not the laundry list they have now. As it's written now, it would let almost anyone off the hook--carte blanche killing."

Says Yuma defense attorney Mike Donovan, who had a client who won a still-pending retrial in the landmark 1991 appellate ruling that expanded the Make My Day law: "Why this statute has been so dormant without being demanded by defense lawyers, especially in spousal abuse cases, is a mystery to me."

A spokeswoman at the Maricopa County Attorney's Office says it hasn't been decided yet whether to retry Latricia Brown on the murder charges.

 
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