Author

The controlling purpose of this piece is to identify and correct a snag in the way courts distinguish discrete modes of criminality: helping, doing, and trying. To that end, I analyze two representative cases: one from the New York Court of Appeals, the other from the California Supreme Court. Both cases fall into an avoidable linguistic trap which twists the way we think and talk about group criminality. In each, two persons are bent on committing murder, but neither intends to divide the labor up between two parties: the actual killer and the killer’s helper. Instead, both parties are trying to commit the murder by their own hand. My concern here is how we fix the parties’ responsibilities, whether or not we know which of the two delivered the coup mortel. In the New York case (People v. Dlugash), we do not know whose shots proved fatal; in the California case (People v. McCoy), we do. Both cases, undisturbed by precedent, labeled both shooters murderers, the theory being that each must be the killer, killer’s helper, or both.

It is my thesis that to hold as much makes only misleading sense. Courts commit this error by veering from the reality that helping gestures are by definition outside the elements of the crime being helped; anyone who fulfills an element of the crime is committing the crime, not helping it. Yet Dlugash and McCoy take the position that trying but failing to commit murder by one’s hand can, without more, somehow constitute helping someone else murder that same intended victim. My proposed fix is to elevate the function of elemental analysis in complicity, in part by reviving an esoteric English doctrine, “joint principality,” which holds that in some instances of group criminality, there is no helping; there is only doing (or trying to do). To absorb this teaching is to better understand not just the relationship between language and the world, but the stakes in mistaking attempted murder for murder. Precisely, because in no jurisdiction is attempted murder punished as severely as murder, differentiating between helping, doing, and trying involves making moral—not just semantical—judgments both about what has been done and what to do about it.