Murder

Several different offences can apply to a death, and the sentences are not comparable:

• Article 105 — murder. Intention to cause death. Six to fifteen years, or more under part 2.
• Article 111 part 4 — grievous harm intended, death caused by negligence. Up to fifteen years.
• Article 107 — killing in a state of sudden strong emotional disturbance caused by the victim's own conduct. Up to three years.
• Article 108 — exceeding the limits of necessary defence, or the measures needed to detain an offender. Up to two years.
• Article 109 — causing death by negligence. Up to two years, or up to four in aggravated forms.

The same facts can be presented under several of these. Which one an investigator selects at the outset is not binding on the court, and moving a case from Article 105 to one of the others is the largest single result available in this area of practice.

Part 2 of Article 105 lists the features that raise a murder charge to eight to twenty years or life: two or more victims, a victim performing a public duty, particular cruelty, a generally dangerous method, a group acting in concert, motives of gain or hire, to conceal another offence, motives of hatred, and others.

Several of these are evaluative rather than factual and are attached too readily. "Particular cruelty" in the Supreme Court's guidance requires an intention that the victim suffer especially, not merely a large number of injuries — a distinction routinely blurred in indictments. "A group acting in concert" requires a prior agreement to cause death, not merely joint presence at a fight. Removing a single feature from part 2 can move the case to part 1 and take years off the sentence.

Forensic medical evidence on the cause and time of death and the mechanism of the injuries. Trace evidence — biological, fingerprint, ballistic. Witness testimony, usually about events before and after rather than the act itself. Phone location and correspondence data. And very often a confession given in the first hours.

The confession is where a great deal of the defence work goes. A statement taken from a detained foreign national without a lawyer of their choosing and without an adequate interpreter, then later retracted, is a recurring feature of these cases. Article 75 of the Criminal Procedure Code makes evidence obtained in breach inadmissible, and a confession made in the absence of a defence lawyer and not confirmed in court falls squarely within it.

Pre-trial detention, without realistic alternative. An investigation of six months to a year or longer. A trial that may be before a panel of three judges, or before a jury if the defendant elects it — an election that deserves serious analysis, because jury acquittal rates are substantially higher than judge-alone rates and because a jury's finding of leniency triggers a mandatory sentencing reduction under Article 65.

Expect also that this will be a long relationship with the lawyer, and that the honest answer to "can you get him out" is no. What can be argued is the article, the part, the number of episodes and the sentence — and in a case with a range from six years to life, that is not a small thing.