Second, and more problematic, the use of a sliding-scale test in emotionally-charged counts – where the gravamen of the case appeals to the feelings but distorts the judgment – unfairly introduces, albeit unintentionally, a moral factor into a legal equation. As the Adami court foreshadowed, “Merely soliciting one to do an act is not an attempt to do that act. In a high, moral sense, it may be true that solicitation is attempt; but in a legal sense, it is not.”
By applying the “sliding-scale” test to the same general set of facts that were present in Adami, the Decker court came to an exactly opposite conclusion, to wit: “Decker attempted her murder.” I suggest the “moral factor” explains this different result. For example, most telling are the 2nd District’s own words: “[Decker’s] specific intent to cause her death could not have been more unequivocal or emphatic,” and “[t]here was nothing more for Decker to do to bring about the murder of his sister.”
Without question, Decker – like Adami some 30 years before him– intended for the crime of murder to be committed. Both defendants are morally reprehensible and deserve to be punished for their despicable conduct. However, the issue here is not about their specific intent; rather, the issue here is whether the second element for the count of attempted murder has now been obfuscated through 2nd District’s judicial activism. Ask yourself, what act (other than preparation or solicitation) did Decker commit so that the murder of his sister “[would have been] consummated unless interrupted by circumstances independent of the will of the attempter”?
B. Murder-for-Hire Cases
In murder-for-hire cases, courts in other jurisdictions have uniformly looked at the actions of the agent to determine whether any steps toward perpetrating the crime took place. This is precisely the analysis that the Adami court went through before concluding that such a count could not be maintained under California law. Thus, in situations where, like here, the agent is really an under-cover policeman, an attempted murder charge can never be sustained because the agent lacks any intent whatsoever to carry out the crime. And that is the real rub here because, from a moral standpoint, it goes against our natural instincts to let anyone, who would commit such a heinous crime, get off on a mere technicality.
Convinced of Decker’s specific intent to kill his sister, the 2nd District misused the sliding-scale test to characterize Decker’s acts of preparation and solicitation as acts toward the commission of the crime to commit murder. When I handed my friend the Daily Journal and told him what I believed the 2nd District had done, he suggested that I was getting soft on crime (Me?), that – since Decker clearly possessed the requisite mental state to convict on solicitation and attempted murder – he should be punished for the more severe crime, and that Decker should not benefit from the fact that the would-be assassin was a police officer.
C. The Moral Pitfall
A problem arose, of course, when I asked him to step down off his lofty moral perch and simply explain the distinction between the two separate crimes in this murder-for-hire fact pattern: solicitation for murder and attempted murder. Using the 2nd District’s approach, there is none. That’s what happens when moral values influence legal decisions: waters become muddied and the law becomes less bright. The problem is not a new one. The maxim that “hard cases make bad law” was coined from an opinion by Justice Oliver Wendell Holmes in 1904. Time-tested, the point is equally applicable here.
After all, it doesn’t take a rocket scientist to figure out that neither the California Supreme Court nor the State Legislature have taken any steps in over a quarter of a century to overcome or reverse the result reached in Adami. So I ask: why the change now and why is the 2nd District leading the charge for change? Although Decker makes perfectly clear that the 2nd District didn’t think that solicitation of murder carried a stiff enough sentence, it is the Legislature’s province to determine the scope of punishment. Thus, by punishing defendants who are guilty of solicitation for the crime of attempt, the 2nd District has crossed over this well-known line and exceeded its jurisdictional powers. More to the point, its actions have needlessly created a conflict among the district courts, thereby contributing additional confusion in an area of law that has already seen too much.