All seven faces were blank. She had no doubt at all that the subject of provocation for a heat of passion defense had been discussed by the group until each of them had it down pat and could repeat it by rote.
“As I’m sure you all know, if there is time to premeditate, it’s murder and not manslaughter. Murder in general requires malice, and malice usually comes from premeditation in which the killer has thought about the crime. Thus to mitigate the crime down to manslaughter, there must first be provocation and second, delivery of the fatal blow immediately thereafter. The phrase ‘slow trigger’ has arisen in my cases because I’ve managed to stretch out the time period from the provocation to the reaction.”
“How much time have you managed to stretch?” Trent asked.
“Years.”
“My God!”
The exclamation came from Lord Finfall. And Marlowe recognized immediately that it was not astonishment at her amazing feats, but something akin to horror that anyone had perverted a legal theory that probably went back to antiquity.
“Years between the provocation and the killing. For a killing in a sudden heat of passion.” The hair on the back of the neck of Lord Finfall’s fifty years of legal training was standing straight up.
Marlowe smothered a grin. “The killing still remains a sudden event, though I’ve stretched the decision to kill from minutes to hours,” she said smoothly. “What has been stretched out is how long the provocation has existed. To understand why provocation can take place over a period of years, we have to look at the unique relationship between husband and wife, and the differences between men and women.
“Spouses are not feuding neighbors who come into occasional contact with each other, dancing with someone else’s wife at the local bar, a couple guys rubbing each other the wrong way on the street, or a hundred other possible situations. People in a marriage are bound together—and sometimes a marriage can be turned into a prison. I don’t want this to come across as sexist, but in most marriages that have turned into prisons, the man is the jailer and the wife the inmate because the man commonly controls the family finances and has greater physical strength.”
“You will not find that that theory plays as well here as it does across the pond,” Helen Catters, the divorce lawyer, said. “Britain is behind many countries in terms of the advances of women in society. Male jurors are apt to get offended if you start characterizing them as prison wardens. You need to know, too, that the battered-woman theory has not yet been accepted as a separate diagnosis by either our courts or our medical profession.”
Marlowe smiled. Dumb bitch. “The idea isn’t to antagonize male jurors, but to get them on the defendant’s side by showing the bad things other men do, things that they wouldn’t do in their own marriage and would offend them.”
“Do you find male or female jurors more sympathetic to your theories?” McMann, the psychiatrist, asked.
“Generally men are more sympathetic to a woman’s plight, female jurors are more critical. But it’s an issue that will have to be studied when we start considering the unique social and political elements of this case.”
“I’d like to hear more about your theory,” Trent said.
Marlowe nodded. “This may sound like a simplistic model in a society in which so many women work outside the home, but statistics show the aggressive dictators of family life are more likely to be the husbands than the wives. And that a large number of the heat of passion killings by women of their husbands arise out of marriages in which the woman is a financial and physical prisoner. Most of the killings also involve the woman having suffered physical abuse from her boyfriend or husband. Mental abuse can come from either side, but again, the cases turning violent are much more likely to involve physical abuse of the female by the male, if for no other reason than men are physically stronger and more likely to inflict serious injuries on the other person. Thus most killings by women commonly arise out of situations in which the women are trapped in relationships with physically abusive and financially dominant men. It seems to be the nature of human beings that with power comes the abuse of power.”
“So your strategy rather vilifies the male,” McMann said.
“No, my strategy is to get the jurors to understand what the perpetrator went through that caused them to lash out violently. If it’s a wife who was beaten and humiliated, and if it makes the deceased husband look bad, then the man had vilified himself without any help from me.”
“But there is a focus on showing bad acts by the deceased?” Trent asked.
“Yes. Obviously, most heat-of-passion cases arising from marital relationships involve wives who have suffered physical and mental abuse over a period of years, and who are—or feel they are—trapped in a relationship with a physically and financially stronger male. At some point the trapped, beaten animal strikes back.”
Lord Finfall scoffed. “Such tripe.”
Marlowe smiled, but her eyes were stone cold as she turned to the retired jurist. “Perhaps if you were beaten and raped repeatedly by a dominant male in a prison setting, you might have more understanding and empathy for what a battered spouse endures.”
Lord Finfall turned red and Trent hastily interjected, “I’m sure Miss Marlowe is just trying to give us an example. Not necessarily one I would agree with, of course. Perhaps you can enlighten us on how you’ve, uh, slowed down the process, this so-called slow-trigger theory.”
“To lay a little more groundwork, again, as we know, the easy cases are those in which there is a lethal blow delivered during provocation. A blow is struck, one not giving rise to a self-defense plea, when a spouse is discovered in another’s arms. The cases that I’ve handled that give rise to the slow-trigger theory are those in which the killing was planned as opposed to arising in the heat of the moment.”
Lord Finfall shook his head in disgust. “Madam, it is fundamentally impossible to plan a killing and have it arise in a heat of passion. If you had come before me with your theory when I sat on the bench—”
“You would have found in my favor after you had given careful consideration to the law and facts,” Marlowe said, giving him a smooth smile. “What it comes down to is that judges and juries have to revisit the concept of time. It’s easy for us to understand that some things happen in a flash—an insult is given, a face slapped, a loved one is engaged in sex with another—these are all short-fused situations. There is sudden provocation and instant reaction. But there are situations that are provocative but don’t arise suddenly. Let’s go back to the prison analogy I used a moment ago—it’s one I frequently use so men can get a better idea of what a woman endures in an abusive relationship. If a male prisoner was abused, humiliated, and raped repeatedly over a period of time by a cell mate and one night, while the tormentor was asleep, the battered prisoner stabbed him—or burned him in his bunk—we would probably judge the battered prisoner the same way we would judge a whipped dog who one day bit the master who beat it.
“There are people trapped in marriages that are every bit as abusive as the situation I described and almost as confined as in a prison cell. In cases where people are trapped in a marriage with an abusive spouse, the battering and humiliation are rarely sudden provocations. Instead, they arise over time, getting more and more brutal over the years.
“And that is why the ‘sudden’ heat of passion doesn’t fit the situation. It’s not a sudden event, a fight or observed infidelity, it’s a slow, spiraling, long-term series of many events, in which a person’s dignity is taken from them and they are beaten and degraded like the proverbial whipped dog.”
Lord Finfall made a strangling noise. Obviously, he was having a hard time swallowing her remarks.
“Madam, there are laws of homicide to cover the whipped dog, that is why we have degrees of murder. But it is not a situation to which we can extend the concept of a heat of passion. It is an elementary, centuries-old casebook law that the perpetrator will be judged by the reasonable-man standard, an
d that standard says that the blow must be struck in close proximity to, if not at the same moment, the time the provocation erupts. An insult is delivered, a reasonable man strikes back.”
Marlowe smiled broadly. “I couldn’t agree with you more, Judge. And what is wrong with that theory in regard to the abused woman is precisely how you explained it—the actions of the perpetrator is judged as a reasonable man would have acted.”
“Certainly you are not proposing that we have one set of laws for men and one set for women.” His lordship spoke through clenched teeth. “We all know that the reasonable-man standard refers to the actions of a reasonable person, man or woman.”
“I disagree with you, Judge.” She would give him the respect due his position as a judge, but refused to use the lordship bit with the old fart. “As you pointed out, the law is centuries old. For those centuries, right up to the present, over ninety percent of the violent crimes committed each year are done by men. Women represent half the population but commit only a fraction of the violent crimes. Because men have always dominated the courtroom—until recently almost all judges and lawyers were men and nine out of ten defendants were men—the law developed based upon the emotional response of men, not women.”
Lord Finfall slammed his palm on the table—hard. “Poppycock! The law is applied equally to the sexes. I can guarantee that your ideas will be thrown out of the courtroom before they ever reach a jury. There are no judicial opinions in this country or yours supporting your position.”
Ah, an admission they had researched her. “There are many judges who would agree with you, but my theory is a question of fact for a jury, not one of law for a judge. There aren’t appellate decisions on the slow-trigger concept because a prosecutor can’t appeal a not-guilty verdict. And I’ve had seven juries not find it to be poppycock. Talking to jurors afterwards, what impressed them most was that it appealed to their common sense. And while I have been in your country for less than two hours, I suspect that this case is a hot political potato besides being a criminal case. If your judges plan to arbitrarily take away a jury’s right to decide a case on its facts, it’s not going to play well with the public.”
Trent said, “His lordship is simply giving you a practical consideration. We would not permit the judicial system to deny the princess her right to a fair trial by jury. Can you elaborate a bit on how you deal with the differences between men and women?”
“When it’s pointed out to them, juries readily accept and understand that the two sexes have a different emotional base. The fact that men and women are sexually aroused at different speeds is probably the best-known example. The use of physical violence is another. When women get angry, they’re less likely to resort to physical violence. Men are more aggressive, perhaps because of their traditional role as the hunter, women instinctively more gentle, perhaps because of their role as the caregiver. But the law of manslaughter, the sudden reaction to provocation, is based upon how a man would react, not a woman. Two men bump shoulders on a street, an argument erupts, one hits the other, the victim falls down and hits his head. That’s typical male heat of passion, a physical reaction to provocation. But for most women, you would have to provoke them for a much greater time before they would react physically, months or even years.
“And because they are physically weaker than the male, they may have to plan out their reaction in order to obtain a weapon, rather than just striking back at the moment of provocation.”
“So that is the basis of your slow-trigger defense, that jurors are to judge a woman’s response differently than a man’s?” Trent asked.
“In a nutshell, yes. Men have a different reaction to provocation than women. Women react slower. But the law is based upon the male reaction.”
“Perhaps you can give us an example of how you’ve been successful with your theory. You had a recent case in Savannah, didn’t you?”
“The Savannah wife had suffered years of mental abuse by a husband who played the most vicious kind of tricks on her. He never hit her, but he humiliated her and degraded her in front of their children and friends for years. He was the physically and financially dominant spouse. The wife was a frightened submissive person who tried to protect their two children.”
“I sometimes find myself lacking sympathy toward women who have more than one child in an abusive relationship,” Helen Catters, the family-law lawyer, said. “I give them the benefit of the doubt for the first one, but the second child? And so often you hear about a third and fourth child in a bad marriage.”
“I agree,” Marlowe said, “but if these women were strong personalities, they would not have gotten into the relationship in the first place. And once in, they are stuck—especially if there are children in the picture. Some women run away from the relationship like scared rabbits, by themselves or taking the children with them, but others, like my Savannah client, didn’t know how to run and hide. To make matters worse, her husband joined a religious group that had attitudes toward women similar to those found in the Middle East and Africa.”
“Women are work animals,” Lawrence Dewey said, “that sort of thing?”
“And sex objects,” McMann, the psychiatrist, threw in. “I don’t suppose he instituted the purdah in Savannah.”
“As a matter of fact, he did. Not to the point of her wearing veils, but in the way she was to treat him and address him. She was to obey his commands without question. He even demanded she call him ‘sir.’”
Lord Finfall guffawed. “Nothing wrong with that.”
“But he didn’t earn his knighthood, Your Lordship,” Trent said.
“What did your client do to this … ah, abusive spouse?” Helen Catters asked.
“She sat in her car in the parking lot where he worked. When he got off work and started walking to his car, she ran him down. Then she backed up and drove over him again. And again.”
“Sounds like he drove her insane,” Trent said.
“An insanity defense, even one of temporary insanity, really didn’t fit the situation. She didn’t have a developmental or other mental defect. She knew the difference between right and wrong, she had freedom of choice and the ability to decide on a course of action that led to the homicide.”
“Doesn’t sound like a strong case for a heat of passion defense in Britain. Your Savannah jury must have had their brains a little dulled by the humidity,” Dr. McMann said.
“The jury no doubt had its emotions aroused by the facts,” Marlowe said. “Not many women have had to endure the type of mental torture this woman did. The final humiliation came when he told her that unless she was willing to fully accept the rites of his religion, he was forcing her out of the house and would see to it that she didn’t have any contact with the children.”
McMann sneered. “I imagine his rites were one of those group sex things.”
Marlowe’s cheeks reddened. She did not like the psychiatrist at all. And she didn’t like doctors—or lawyers—who jumped to conclusions before they had heard all of the evidence.
“Not at all. As a matter of fact, the religious sect the husband belonged to tended to be puritanical. What they required from their women, in addition to being baby factories and work animals, is that they be mutilated.”
“Mutilated?” Lawrence Dewey asked.
“She was circumcised.”
9
Marlowe left the meeting with Philip Hall. They were in the backseat of the Rolls before Marlowe spoke.
“I’m glad none of your team was on any of my juries,” Marlowe told him. “They’re a hanging jury, for sure.”
Hall smiled. “I believe you held your own. There are a great many complications with this case.”
“If it wasn’t a tough case, the princess wouldn’t be reaching around the world for more help. Honestly, what do you think? About selling a battered woman theory to a London jury?”
“Has the princess told you she was abused by her husband?”
“We haven’t
gone into the specifics because we both feared the police would listen in to our telephone conversation, but she inferred it, she said she needed to hire me because of my success in defending abused women. How did she describe her relationship with the prince to you?”
“I have not spoken to her about it. Trent and Sir Fredic are the only ones who have been privy.”
“They don’t share the information with the other members of the defense team?”
“This is a very sensitive case.”
That didn’t answer my question, Marlowe thought. She suspected Hall knew the princess’s version.
He pursed his lips. “I don’t believe I know enough about your theory to stand in judgment. You’ve explained it, you have been successful at it. But your success has come in American courtrooms, where you sold facts to a jury rather than legal theory to a judge. Our legal system is not as sensitive to women’s issues as yours. Political correctness isn’t as adhered to here. Our judiciary has been accused of being an old boys’ club and there’s reasons for it. How long would a judge last in America who states that a wife contributed to the rape of her fourteen-year-old daughter by her husband, the girl’s stepfather, because she denied him sex?”
“It would have made headlines and been the subject of talk shows. The judge would be hounded off the bench.”
“It caused a flap, but not the sensation that it would have caused in America. People may be just as offended about the remark, may seek to have the judge redressed for stating it, but the judge wouldn’t be electronically lynched by a massive media campaign.”
Marlowe said, “The cases I’ve won were achieved in the courtroom, not in the media. And the way I succeeded with them is no different than the way most attorneys try to handle criminal cases. I humanize the defendant until the jurors can stand in the defendant’s shoes and understand the pain and suffering, the feeling of being trapped and terrified, with no way out except to strike back.”
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