Saul Goodman - Don't Go to Jail! - Saul Goodman's Guide to Keeping the Cuffs Off

First thing’s first: murder is also homicide, yes. Next, one of my old refrains about the vagaries of the American legal system: wherever you live, what constitutes the act of murder will be a little different, according to the law. States have various degrees of murder charges available for purchase.

Old-fashioned common law—which is kind of like an oral history of judges’ decisions going way, way back to the English way—framed up the varieties of murder pretty well. In common law, homicide becomes murder when the magic spell-like phrase “malice aforethought” enters the picture. If someone cuts you off on the highway and you think, “I’m going to kill that guy with my bare hands,” then pull him over and do it, you had malice aforethought. It’s deciding to do something you know is totally illegal, with no just cause. And no, “road rage” rarely works as a valid insanity defense.

Current, modern law breaks down the varieties of murder with malice aforethought something like this:

• Taking a life on purpose, and having clear knowledge as to what you’ve done.A planned, purposeful homicide equals first-degree murder. Some states even dub this “malice murder” just so it’s clear that first degree equals “malice aforethought.” A tangled lasso indeed.

• Killing from reckless intent.If a cowgirl riding through town wildly shooting her Colt Single Action in all directions accidentally breaks a heart with one of her bullets, that little lady was behaving recklessly. Common law quaintly called this “depraved-heart” murder. Murder in the second degree can fall under this heading, because reckless intent doesn’t equal premeditated, planned homicide.

• Especially heinous murder.Poisoning, setting someone on fire, pretty much anything that involves killing-by-torture. Murders committed with unusual nastiness. Really vicious crimes like this are usually first-degree murder, though if you kept your victim alive for a bit so that they could watch you dine on their gallbladder, your attorney may want to consider having you plead that tricky insanity defense.

• Felony murder.That may seem redundant, but this subcategory is about murders that happen while the killer is committing another crime. Robber kills a guard while ripping off a bank? Felony murder. Sometimes you don’t even have to pull the trigger in a situation like that. Some states have laws that say that if there are two robbers fleecing a joint, but only one pulls the trigger that offs a guard, the other robber can be held liable.

We’re not hiking too far into the weeds. If you find yourself accused of killing with malice aforethought, my goal is pretty simple, even though murder itself isn’t always all that straightforward. You are the Triangle Shirtwaist Factory, and this charge is the spark, the smoke, and every locked stairwell on the way down. If you follow these instructions closely, we might be able to wedge open a window for you.

Shut up. Lips zipped. ¡Cállate! Don’t say a word. Yes, that’s a pretty common refrain. Sing it in the shower like your favorite Britney Spears song. If you just can’t bring yourself to heed that advice regarding a prostitution rap, or a drug charge, or whatever other misadventure you can dream up, listen now. The moment there’s a dead body to be examined and an officer of the law in your face asking questions, shut up.

I know, I know, the impulse in this case, more than about anywhere else, will be to assume that by invoking your right to an attorney you must be somehow guilty. Cops rely on this, big time. They know it’s a perfectly reasonable human instinct. And it is! But sometimes your gut is wrong. Give your attorney a call!

Anyway, take comfort, not many people get gored by the horns of a homicide allegation. It’s unlikely you’ll ever need to deal with all this rigmarole. But it’s worth me repeating a point here, because it doesn’t get more serious than homicide, and most of the time people accused of it, innocent or not, suck at dealing with the traumatic accusation. Silence, in this instance, is the first step in your imaginary folder marked “Contingency Plan for Murder Charges I’ll Probably Never Face, But Let’s Be Safe, Just in Case.” Or something a little punchier than that.

So: keep quiet and call your lawyer. If you take those two steps as gospel, then coping with the first steps of a murder allegation is pretty simple. As an innocent, wrongly accused party, your main enemy will be the impulse to protest.

The sworn peace officers with a solemn duty to get murderers off the street as soon as humanly possible really want you to speak freely and lawyerlessly. They would love to hear you object to your little heart’s content. Cops—particularly those who’ve risen to detective—are masters of interrogation and selective interpreters of the answers they receive. And it is a no-win for you to engage this way, trust me on that. Why? Because even an innocent person will end up telling the same story in different ways. Especially if that innocent person is completely flustered by the idea that they might be a murder suspect. The understanding, compassionate officer on the other side of the interrogation table will interpret this as evidence of guilt and throw your ass in a holding cell quicker than the Zodiac Killer could lick a stamp.

So shhhh . And get a lawyer. Or gladly accept whomever the judge appoints for you. Now is the worst time imaginable to consider pro se.

A lot of what we’ve been discussing prior to wading into the murder pond didn’t necessarily involve actually ending up behind bars. Many charges that demand you get legal representation can come with an affordable bail. This sure as hell can change once murder enters the picture.

If the charge is murder in the first, bail will be too high to manage for all but the heirs and heiresses. And sometimes a judge won’t even set bail, just to make sure you stay inside. The state believes you thought about it, maybe even planned it out, meant to do it, and to the state, that makes you a seriously dangerous dawg.

If you’re innocently enjoying Panda Express with your grandma and a mall rat won’t stop disrespecting sweet Nana until you toss that mouthy punk off the food court balcony and right into a pretzel fryer, that doesn’t mean you can skip off to the gumball machine with your quarters; you’re gonna need every penny. For a second-degree murder—usually thought to be an unplanned, spontaneous homicide—there will still be a pretty high bail. Same for a felony murder. Say you’re a simple, humble car thief, but you run someone over as you make your getaway? That’s felony murder, and you might as well be driving that pimped-out Porsche straight to Sing Sing.

I think you get the picture now. It does change a bit if the charge is manslaughter, where the level of perceived negligence becomes a factor. A drunk driver killing a pedestrian certainly had no intention of killing anyone, but being drunk at the wheel was one crime, and it involved seriously negligent behavior. Chances are the bail will be high, but possibly doable if, again, you’ve got even semi-deep pockets. And this isn’t like the, “Oh, oopsie daisy,” of breaking Pop-Pop’s antique cookie jar—you’d better be ready to prove to the court with words and tears (and more) that your drunk ass is legitimately sorry.

I’ve got my biggest, widest brush out now, since until you’re actually faced with a murder case, specifics might be meaningless.

Let’s start with obtaining your lawyer. You might start with a legal aid attorney if you are financially challenged or even middle class. While these guys and gals might be pure gold when arguing to get you out of a solicitation charge, murder is a big level up, and in many jurisdictions, the pay for either case is going to be the same. So legal aid is a gamble.