High court asked to take tex­ting, sui­cide case Ex­perts say jus­tices un­likely to agree to hear Mas­sachusetts woman’s ap­peal

The Washington Times Weekly - - National - BY ALEX SWOYER

Words can hurt, but the Supreme Court now has been asked to de­cide whether they can kill.

Michelle Carter, who was con­victed of in­vol­un­tary man­slaugh­ter in Mas­sachusetts after en­cour­ag­ing her boyfriend over the phone to take his own life in 2014, has asked the jus­tices to take up her case and over­turn the con­vic­tion.

Court watch­ers doubt the jus­tices will take the case, but the le­gal con­flict has sparked de­bates on so­cial me­dia and at wa­ter cool­ers across the coun­try.

Stephen Morse, a law pro­fes­sor at the Univer­sity of Penn­syl­va­nia, says he doesn’t un­der­stand how the trial court con­victed her or why the Mas­sachusetts Supreme Ju­di­cial Court up­held the guilty find­ing.

“The Mas­sachusetts court went much too far,” Mr. Morse told The Wash­ing­ton Times. “Few pros­e­cu­tors would have brought that case.”

The death in ques­tion was that of Con­rad Roy III, who at age 18, took his life by poi­son­ing him­self with car­bon monoxide in his truck in a park­ing lot in Fairhaven.

Roy and Carter, then 17 years old, had built a long-dis­tance re­la­tion­ship since meet­ing two years ear­lier, and spoke reg­u­larly — in­clud­ing about sui­cide.

In the days lead­ing up to Roy’s death, they strate­gized about it, trad­ing ideas about for how to pro­duce car­bon monoxide.

“Por­ta­ble gen­er­a­tor,” Carter sug­gested, ac­cord­ing to one text mes­sage used as ev­i­dence in the case.

In an­other ex­change, when Roy ex­pressed re­luc­tance, Carter replied: “I thought you wanted to do this. The time is right and you’re ready, you just need to do it! You can’t keep liv­ing this way.”

As he sat in his truck he spoke again with Carter, who was 50 miles away. At one point he got out of the truck to get fresh air, but Carter told Roy to “get back in,” ac­cord­ing to court records.

The trial judge found that Carter knew the truck had be­come a “toxic” en­vi­ron­ment when she told Roy to get back in, and could hear him cough­ing as he in­haled the ex­haust emis­sions.

Be­cause she did not call for help or tell Roy to stop, she had en­gaged in wan­ton and reck­less con­duct that caused the vic­tim’s death, amount­ing to in­vol­un­tary man­slaugh­ter, the judge ruled. Carter was sen­tenced to serve 15 months.

Her lawyers, in their ap­peal to the Supreme Court last month, said Carter’s words were pro­tected by the First Amend­ment and weren’t “speech in­te­gral to crim­i­nal con­duct,” as the trial judge had found.

The lawyers said the rul­ing broke new ground in con­vict­ing some­one who wasn’t present at a death, based on words alone.

They pointed to an­other case in Min­nesota in which a man’s con­vic­tion was in­val­i­dated in part for en­cour­ag­ing the sui­cides of peo­ple he had met on­line.

Min­nesota’s law pro­hibits an in­di­vid­ual from ad­vis­ing or en­cour­ag­ing some­one else to take their life. The state’s Supreme Court ruled it vi­o­lated the First Amend­ment to pros­e­cute some­one for “en­cour­ag­ing or ad­vis­ing an­other to com­mit sui­cide.”

Mr. Morse said Carter, now 22, isn’t a sym­pa­thetic de­fen­dant, but he said he First Amend­ment claims in this case are “per­sua­sive.”

Eu­gene Volokh, a law pro­fes­sor at the Univer­sity of Cal­i­for­nia, Los An­ge­les, also ques­tioned the Mas­sachusetts courts’ de­ci­sions, but doubted the Supreme Court will take the case.

“The jus­tices tend to look for ques­tions on which there is a dis­agree­ment be­tween lower courts, or for ques­tions of real na­tional im­por­tance. This par­tic­u­lar ques­tion (thank­fully) comes up pretty rarely,” Mr. Volokh said.

Mas­sachusetts does not have an as­sisted sui­cide law; Carter was charged and con­victed un­der its man­slaugh­ter statute. The state’s high court, in up­hold­ing the con­vic­tion, re­jected the First Amend­ment de­fense, say­ing there are many other crimes that oc­cur through speech.

“The only ver­bal con­duct pun­ished as in­vol­un­tary man­slaugh­ter has been the wan­ton or reck­less pres­sur­ing of a vul­ner­a­ble per­son to com­mit sui­cide,” Jus­tice Scott L. Kafker wrote in the opin­ion for Mas­sachusetts’ top court.

Roy’s mother joined state law­mak­ers to an­nounce a leg­is­la­tion that would re­move all doubt about crim­i­nal­ity by cre­at­ing a new of­fense for pres­sur­ing some­one to take their own life. The pun­ish­ment would in­clude up to five years in prison.

Carter

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