Half good. Half bad.
Good part first. Michael J. Loveless decides to rob a house in 1986 because he thinks there's a ton of money in it. He and a confederate go in, tie up the father and his 14-year old son, and put a gun to the father's head. A while later, while the gun is at the father's head, it goes off, killing him. Loveless immediately apologizes, saying it was an accident. After searching the house, Loveless's confederate tells Loveless to kill the boy since he's a witness, but Loveless refuses to do so. They leave the house with $110 in cash, and Loveless is eventually caught, convicted, and sentenced to 15 years to life.
Fast forward 22 years later. Loveless has no criminal record, was drinking heavily (and using drugs) at the time of the offense, has an extremely good disciplinary record in prision, and has lots of support for parole. But the Board denies him. The trial court, however, reverses. The case goes up to the Court of Appeal.
The good part about Justice Nicholson's opinion is that it reverses the trial court. There was indeed "some evidence" that supported the Board's decision. Loveless had stopped attending AA and NA, had basically done everything that the Board told him to do but no more, hadn't really done any self-help efforts, and was overly agitated during the parole hearing, constantly interrupting the Board, which concluded that they were "listening to a con, and not necessarily a rehabilitated one."
Now, some of this is perhaps understandable. If you've been in prison for two decades based upon a robbery that went horribly wrong, and finally have a chance to be free, when you're faced with a hostile Board (either objectively or in your own mind), I can see how one might be frustrated. Nonetheless, you have to be calm, and your inability to do so doesn't bode well for your future success. So I agree with the Court of Appeal that, based on the totality of the Board's findings, there was some evidence that supported their decision to deny parole. So that's good.
Here's the bad part. The Court of Appeal also holds that the Board was correct to deny parole because the crime was committed "in an especially heinous, atrocious or cruel manner." What?! Yeah, Loveless only got $110 from it, which I guess is a "trivial" reason, but all murders for money are inherently for trivial reasons -- the two (a human life and money) are incommensurate. You're telling me you should grant parole to a guy who killed and stole for $110,000, but not $110? Really?
More importantly, the shooting was clearly an accident. Yes, that's still second degree murder. But every murder is "especially heinous" if even an accidental murder counts as well -- hardly a basis for distinguishing the parole-worthy from those who should be denied. Loveless immediately said it was an accident. He refused to kill the son -- even at potential risk to himself from his confederate -- even though it meant leaving a live witness. What Loveless did is simply flatly inconsistent with a view that he deliberately shot and killed the father for a mere $110. The fact that the robbery was planned, and that it was a calculated risk to put a gun to someone's head, definitely makes it second degree murder. But that doesn't make it an especially heinous one.
I've read a ton of second degree murder cases in my time. To say that this one falls on the extreme end of the "especially heinous" scale is simply uncredible. Yes, a person died, and yes, he died in front of his 14-year old son. Deliberately imposing those costs or $110 would have been one thing, and maybe I'd be on board if Loveless indeed engaged in such a calculated act (or shot the son as well). But that not only didn't happen here, but what actually transpired was in fact the total opposite.
So there's a good result here, I think, and for more than an adequate reason. But part of the basis for the Court of Appeal's holding seems both demonstrably wrong as well as extremely pernicious -- for Loveless (who has to face that same holding in future parole appeals) and for everyone else who will now have to face this same precedent in deciding whether their (much worse) murder was also "especially heinous."
So some good. But some definite bad.
