One of the problems with killing people is deciding who lives and who dies. We don't want this decision to be entirely arbitrary -- just left to the discretion of a particular 12-person jury -- so we establish rules. But wholly apart from whether those rules are applied consistently across juries, there's also a question about the rules themselves. Do they make sense?
Take this case, for example.
The dispositive issue is whether the murder here occurred during an attempted forcible rape. If it did, Philian Lee gets killed. If not, he lives.
There's little doubt that Lee attempted to rape the victim, Melemanunanilanililinokalani Kekaula ("Mele"). She was drunk, nearly passed out, said no, but Lee wouldn't stop (at least immediately). That's an attempted rape.
But he didn't kill her during the rape. She said no. She pushed him off. He removed himself . Two witnesses in the same car saw everything. But then Lee got out of the car, said he was going to "straighten [Mele] out," walked to the other side of the car where Mele was, pulled her out of the car, and moved her to the rear of the car. The people in the car heard Lee and Mele talking, and heard Lee say something like: "It's like that, huh?" Clearly, Lee's not happy that Mele doesn't want to have sex with him.
So he pulls out a gun and shoots her in the head. Repeatedly. Killing her.
That's a horrific offense. Terrible. Amongst the worst of the worst.
But is it "during" the attempted rape? Or after? That's the difference between life and death for Lee.
It's a somewhat tough call. Not for the California Supreme Court, mind you. Which says, yep, it's during the rape. Without dissent.
But let's ask the even tougher question. Why should it matter?
We know why it does matter. Because California's rules says it does. It's special circumstance if it's during the rape. It's not if it's not.
But why? Extend the one minute time difference here into one day. Imagine that Lee doesn't pull Mele out of the car right after the attempted rape, but instead waits an entire day, and kills her because she's refused his desire for sex. You mean to tell me that's "better" -- less culpable -- than what happens here?
Let's rank order them. Which of the following is worse:
(A) During X's rape of Y, Y struggles, and X kills her.
(B) X tries to rape Y. X fails. One minute later, X kills Y.
(C) X tries to rape Y. X fails. One day later, X kills Y.
(D) X asks Y to have sex. Y says no. X promptly pulls out a gun and kills Y.
Which of these is worse? California says that (A) is death-eligible, the California Supreme Court says that (B) is death-eligible, but neither (C) nor (D) qualify. You agree?
There are always line-drawing problems. What's worth 2 years in prison versus 3? But when the line is life versus death, the consequences of drawing the line in the wrong place multiply exponentially.
