No, the charges of assisting a suicide and murder are NOT contradictory
The Malta Independent on Sunday carries an article today in which Edward Gatt, a lawyer, and Eddie Attard, who researches the history of crime in Malta, both say that the crimes of assisting a suicide and of murder, with which Erin Tanti has been charged, appear to be contradictory.
Gatt says that the only way he could be found guilty of both is if he helped Lisa Zahra jump, then climbed down to find she was still alive and killed her.
Well, hardly – I’m not a specialist in criminal law, but even I can work out that the crime of assisting a suicide is not predicated on whether the suicide attempt is successful or not. Your victim does not have to die for you to be charged with attempted murder.
If Erin Tanti talked Lisa Zahra into killing herself, harangued her into writing a suicide note and told her to ‘leave it where it will be found’, bought her the pills and provided the whisky, then took her in his car to Dingli Cliffs at night when the pills failed to work – that’s the crime of assisting a suicide, regardless of whether she died or not.
If that plan of his failed on the second count, with Lisa Zahra refusing to jump and Tanti pushing her off the edge, then there’s your charge of murder.
In charging him with both assisting her suicide and her murder, the police obviously think that this is exactly what happened: that he first tried to get her to kill herself by providing her with the means and talking her into it, and when the pills failed to kill her, he tried again by driving her to the cliffs and trying to persuade her to jump, and she refused, so he pushed her off.
Edward Gatt also said that a decision on the prison sentence he should serve will depend on various factors, including whether the other person “played a part in the crime”.
Surely he is not serious. A child can never be considered to be a party to crimes committed against him or her, but rather the opposite: the crime is greater if it is committed against a child, and greater still if it is committed against that child by a person in whose care the child is (a teacher, for instance).
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http://www.independent.com.mt/articles/2014-04-13/news/tanti-could-still-face-up-to-23-years-if-murder-charge-is-dropped-4607442946/
Would you completely discount the possibility that Erin assisted her suicide, but that she performed the physical jump unaided, rather than he having pushed her?
[Daphne – Yes. I think she flung his jacket off the cliff when she discovered his passport, the cash and/or the love letter, and in a knee-jerk reaction he pushed her after it, because it was what he planned to do anyway, then realised he was screwed.]
He never explained the jacket.
Capable of a vivid version of events, but not how his jacket was found next to her.
Daphne, that explanation would have been plausible if the car was NOT locked and/or the car keys were not in the jacket, i.e., if she discovered the passport, etc, while in the car, and ran off in anger.
If they were ‘looking for a spot from where to jump’, she would not have rifled through his pockets. I still believe she grabbed onto the jacket instinctively on being taken by surprise at the cliff edge. And I will not believe she jumped intentionally.
[Daphne – Jackets don’t come off in a struggle, let alone by merely clutching at them as you fall. This is because of the arms and sleeves. He would have been wearing his jacket when he got out of the car and locked it, which is why the keys were in the jacket pocket rather than his trouser pocket. If men are wearing a jacket they will put their keys in it. If they are not wearing a jacket, the keys will go in their trouser pocket. And at some point, for whatever reason, he took it off.]
I disagree on the assertion that a jacket wouldn’t come off in a struggle.
I’ve seen jumpers and t-shirts pulled over peoples’ heads in real altercations.
However, in these situations, the person doing the pulling doesn’t want the item of clothing to clear the head (this gives you an advantage because the person’s view is obscured and it entangles the arms), whereas the other person’s instinctive reaction is to lower their head and torso and pull back, removing the item of clothing over their head inside out.
This is a plausible scenario if they struggled on the cliff edge, but the jacket would have come off inside out. Definitely possible.
[Daphne – It really isn’t possible to get a jacket off somebody in a struggle. Try it. You can’t even get one off a toddler who doesn’t want it off. The arms lock it into place. Jumpers and T-shirts get tugged off because they stretch, so even if the wearer ‘locks’ his arms by crossing them, the other person can still tug it off by raising the back,]
The actual crime is to prevail on someone to commit suicide or give any assistance to commit suicide. So the police are covering 3 bases here: (a) wilful homicide (pushed her or otherwise did something or omitted to do something with the intention of killing her or putting her life in manifest jeopardy), (b) compelled or convinced her to commit suicide and/or (c) helped her commit suicide. They are not contradictory but represent the three likely scenarios with (c) being the minimum expected by the prosecution.
That is precisely what I thought after I read that article. I also do not know anything about laws, but I tried to reason it out. Well done Daphne and keep up the good work.
The same article states that the act of suicide isn’t considered a crime in Malta.
This Gatt puts Lisa Maria Zahra as party, by default an adult, which she isn’t, to the ‘crime’, which it isn’t, of killing herself.
Some lawyer.
Your theory sounds a reasonable explanation. However it is based on a change of heart by the victim literally at the last minute on the edge of the cliff which is certainly possible but not very likely.
I therefore still think it unlikely that Mr Tanti will be found guilty of both murder and assisting suicide. In doubt a jury would probably only find guilt for the latter crime.
I agree that consent or complicity by a victim to a crime should not be considered as some defence except in some crimes as rape.
The criminal code (article 213), on assisted suicide, states that the suicide must have occured. Therefore the theory of both crimes seems to be debunked.
It reads as follows:
” Whosoever shall prevail on any person to commit suicide
or shall give him any assistance, shall, if the suicide takes place, be liable, on conviction, to imprisonment for a term not exceeding twelve years.”
On the other hand, I understand the police, especially in case of suspicion of serious crimes, throwing the law book at the person accused, especially when the facts are unclear.
Lawyer Gatt and ‘historian’ Attard, should get real, the creep killed her.
Suicide-aiding is a crime in other countries.
http://www.cbc.ca/news/canada/ottawa/nadia-kajouji-suicide-aiding-conviction-sent-back-to-lower-court-1.2578805
Let’s be realistic here: how would a 15 year old girl choose to commit suicide? I would say by emptying her parents’ medicine chest.
[Daphne – Yes, that is in fact the most common way with women generally, and especially with girls. They raid the medicine cupboard and begin swallowing things indiscriminately. And they stay home to do it.]
She would not get herself to a pharmacy and buy pills with the express intention of using them for her suicide later. It involves too much time, too much determination and the pharmacist might refuse to sell her any if he/she is able to read the girl’s age correctly.
This is where Erin Tanti comes in. This is definitely a case of assisted suicide.
As to jumping off a cliff, the method is too aggressive for a girl to choose. Of course, everything boils down to character but studies show that jumping off/ shooting a gun/ hanging are preferred by men.
Initially I thought she did jump (she seemed like a fiery and spirited girl), but then how do you explain his jacket lying next to her and Tanti landing a good stone’s throw away?
I didn’t like the position of that jacket from the very beginning but didn’t want to believe that he actually killed her until Daphne pointed it out.
I think Lisa Zahra realised she was going down and pulled at his jacket which may have been held in his arms.
Exactly. She would not have needed to wait for Tanti to purchase the medicine or alcohol. Homes like the one she grew up in have a fully stocked drinks cabinet.
I don’t think he can be convicted of both murder and assisting her to commit suicide.
Suicide is the taking of one’s life so there must be volition on the part of the suicidee. If Tanti pressured or cajoled her into jumping that is murder not simply assisting.
Just trying to think this through. The crime is ‘to assist a suicide’. If the suicide failed is there still a crime?
That is, is the ‘attempt at assisting one to commit suicide’ a crime too?
I’m not sure but I think it is as there would still be the two essential elements for a crime to be committed – the intention and the action (even if it failed).
If this is the case then should the police have included it as a third charge? Then he could be convicted of both murder and the attempt to assist a suicide.
In any event the reason why I think the police charged him with both is that If they only charged him with murder and he gets off, they would not then be able to charge him with assisting her to commit suicide at a later stage.
It is possible to assist in a suicide attempt and then to commit murder. Someone could help you try to hang yourself and then finish you off with a gun.
Yes of course and the first would be an attempt whilst the second would be outright murder.
My question is whether the crime is the assistance to commit suicide whether that suicide is successful or not? To my mind the intention and the action are still there (ie the mens rea) of the person doing the assisting, so it should still be considered a crime. But without looking up the criminal code I don’t know the answer.
Have the toxicology test results been released for the accused?
Until reading this article I had assumed that they had both drank the alcohol and took the pills together.
Other than the jacket being near her body and the interesting but unsubstantiated claim that Zahra flung it off the cliff in a rage before the accused shoved her off after it – there is no evidence of murder.
Am I missing some crucial piece of evidence that will allow for a successful murder prosecution?
[Daphne – It’s circumstantial, but it’s there: his intention to flee the country immediately afterwards – passport, Eur2,500 in stolen cash, items of sentimental value. And his own admission in the immediate aftermath that this is what he planned to do: leave the country.]
It was also stated in court that there was a Virtu Ferries ticket.
The prosecution is home and dry on the assisting suicide prosecution and the facts are beyond disturbing in and of themselves.
On the murder case evidence is largely circumstantial as you say – wonder if the jurors (see Times of Malta comment board for sampling) will see this as overkill allowing defense to confuse the jurors with the elements necessary to prove the two different counts securing acquittal on both.
They are contradictory, and he can never be found guilty of both, since under Maltese law a conviction for instigating or assisted suicide necessarily requires that the suicide be successful. This is article 213 of the Criminal Code, which is the only offence related to suicide.
If the aspirin pills he bought and supplied her with were intended to have her bleed to death on a fall that he drove her to then even without a final push, it would still be murder.
How come the word intention is so lacking? That was his intention. If it was hers and not his, he wouldn’t have driven her there to the cliff edge at any hour, he wouldn’t have bought and supplied the pills and the whiskey, he would have reported this to her father, her brother, the school, the police. If he loved her and his intentions held any good to them, he would have done this despite the charge he knew was being brought against him. He would have thought of her well-being first, not his own escape from the scene and her annihilation.
This is like administration of poison. When the inner workings of the body fail to overcome the effects, the poison that led to the death was administered by someone and that someone is guilty of murder.
The fact that the poison consisted of tangibles and intangibles has people confused here. Poisoning of the mind – of a minor in his charge and whom he had abducted – is a grave scenario.
When people calculate how much of their devastating actions remain within the law and how much without, the accent needs to revert to intention and result. To the moral balance. If true justice is to be served.
That’s without proof of the final push, say, if he had given her the jacket as a guarantee that he would jump, all the while thinking that it would be easy to retrieve later without actually jumping. That guarantee is also just as effective as a push.
If then she grabbed the jacket and he pushed her or did not push her in a final game play – in my experience a psychopath has a game for every scenario – the final detail is almost irrelevant. The mind control would have been so total and compliant that the energy of the intention was only working in the one direction of securing her death, never his.
An normal adult commits emotion to a relationship and to trust. A child has not yet had the opportunity to explore the full gamut of emotions that an adult may have.
She would have been fresh untried putty to a psychopath’s dark scheming.
A psychopath has not one iota of love invested. Indeed no emotion that is not thrill driven. Where was the next thrill to be had? The current thrill was sated.
A psychopath will ensure the reputation of his victim is sullied so that in the pull-out process of a worst case scenario he comes out unscathed and his victim, from which the benefit has already been extracted, left covered in the same pigsty odour of blame.
A psychopath has practice in covering his tracks from the start of the “game.” A physically disadvantaged psychopath will have sussed out that preparation is where any advantages to be gained lie.
A child has absolutely no protection against a psychopath.
An adult in the grips of a psychopath has only a narrow margin of an advantage over a child, if that includes some freedom of movement.
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Consider the case of Joseph Fritzl’s cellar abduction of his daughter in Austria: did his daughter, by virtue of becoming pregnant 8 times, want to be raped by the father?
What some are saying in effect and comparison, is that yes, she became pregnant and had 7 children with him so she played a part. And she is guilty for having played that part.
Utterly ridiculous insane reasoning.
Psychological manipulation is no less an abduction. The psychological to actual physical abduction was the final development to the long twist and turn of events.
Intention was not pure. The intention was not to “cause bodily harm” but to have her end up dead.
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Instead of facing the music, he grabbed her – during school hours? from the school premises? – and ran to save his skin. The “suicide plan” had already been formed and the pebbles laid as back-tracks: a final act where the cover of night, and timing, was essential.
A normal person isn’t capable of any of this because the first elements in the check equation would have prevented it.
A psychopath wouldn’t blink. In his frame of mind he is never wrong, never guilty. It is the world that has plotted against him. Any action he chooses is the best arrangement at the time.
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Was there only one other female on the side? When did it narrow down to the one Danish woman? Was she older than him? Younger? Independent? Had he met her? Was it virtual? Were there others chatted with? When did this begin? What were the hooks? Was the intention to secure a safe haven once the final act played out? How far ahead were the plans laid and how far geographically did the field of possibility stretch? What would he have done in such a scenario? Could the male easily take on the surname of the female if a relationship was formalised there? What sort of identity would he have assumed?
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How about that book full of poems about suicide and the fact that he kept making her life more miserable when she was already vulnerable… isn’t that inciting suicide?
Can it be that on the tragic day he spiked her drinks and when she refused to jump maybe pushed her, lost his balance and fell close to the cliff and that’s why he did not die but only suffered “minor injuries”?
I think a lot hinges on whether they both took the pills or just she did. If it was just him, then it’s most likely murder. If it was both, then it points more to a situation of assisted suicide, I believe.
[Daphne – It would be murder in any case, because of the adult-minor context. That is the point we are overlooking. If a 15-year-old came to me and asked for help in killing herself, and I gave her a huge quantity of pills then drove her to the cliffs, that would technically be murder, not suicide. The context does not change because Erin Tanti is 23 and I am 49. We are both adults in the eyes of the law. And that is why I really cannot understand why he has been charged with assisting a suicide rather than with outright murder.]
I see. Fair enough.
Having said that, of course, they are both heinous crimes
I am not at all sure your reasoning is legally correct here. First of all, if the crime of assisting a person to commit suicide results in a successful suicide, then it is the crime of assisting a person to commit suicide and not murder (more precisely, wilful homicide).
For wilful homicide to subsist, there must be the intention (mens rea) of committing wilful homicide. One may have intended to assist in a suicide and then changed one’s mind at the last moment and decided to commit wilful homicide but, in that case, the necessary intention of wilful homicide will be present.
In my opinion the police and the Attorney General agreed to include both the charge of assisting to commit suicide and the charge of wilful homicide in the indictment because they were not sure which of the two contradictory charges would work.
I think they were in a dilemma and chose what seemed to them a way out to obtain a conviction on either one of the two charges: had they included only one of the two and that one did not work out, then it would have been impossible to charge the accused with the other crime because of the rule of double jeopardy.
Had they charged the accused with wilful homicide only and this charge failed, the rule of double jeopardy would have become operative because they could not have charged him with another crime arising from the same circumstances. On the basis of the same circumstances, a person can only be charged once even if the crime is not exactly the same one.
I am pretty sure this is the one possible explanation for the two contradictory charges.
Further to what I wrote, the two charges are contradictory only in the sense that the accused can only be found guilty of one of the two since they are mutually exclusive.
It does not mean that he cannot be charged with both, one being an alternative to the other.
As I said earlier, had the accused to be charged with only one of the two crimes and he is not convicted, the rule of double jeopardy would forbid another trial on a charge of another crime arising out of the same circumstances.
Daphne you may not be so familiar with criminal law, its theory, its philosophy or practice. But I must say you made one very clear distinction: “your victim does not have to die to be charged with attempted murder”.
Researching the history of crime is in no way connected to the application and practice of criminal law. It is a narration of events as derived from material, like court judgments and media of the day.
From personal experience I can say fluently, assertively that such reporting can at times be as misleading as quoting the sun for being the moon.
In modern jurisprudence there has been admitted the fact that one can have a conviction for murder without having the corpse of the murdered person. This has been adopted in our courts and in history we have a case in question.
For a criminal charge to subsist there are three elements that have to be proven: 1. the mens rea, the “mind” the thought of the crime, 2. the actus reus, that is the criminal act itself, and 3. the corpus delicti, that is the victim of the crime.
All three elements together constitute the duty of proof of the offence, though as stated earlier in certain particular circumstances murder could be proven without having the corpus delicti.
Let us assume they both considered suicide. They were consonant on the intent, the execution of the attempt of suicide by the lethal mix of whiskey and pills, and the final outcome. At one point in time they decide they wanted a swifter exit and decide to leap off the cliff.
At the edge one of them is pushed off. This is where an attempt and abetting of suicide is accompanied by the murder of the other. Easier said than proven. There is no doubt that up to and including a certain point in time there was an attempt on suicide and one of the two was actively assisting and abetting in the suicide of the other. The fact that he was intent to commit his suicide does not in any way exculpate him.
What happened at the edge of the cliff is a vital clue as what charge should prevail. Up to the edge of the cliff there is prima facie the offence of assisting in suicide. If at the edge of the cliff one of the two was pushed over, then we have murder only because the one thrown off the cliff died. Otherwise had she survived it would have been attempted murder.
This is where forensic evidence comes into play. This is one of the tough nuts to crack in this process.
As I see it: there’s a difference between assisting attempted suicide, in which case the victim remains alive, and assisting suicide in which case the victim dies.
In both cases, suicide and homicide, the victim must be dead.
The thing is that if he is found guilty of having assisted a suicide, in which case the victim died by committing suicide, then he cannot also be found guilty of wilful homicide (‘murder’ is not a term used under Maltese criminal law) because the victim cannot have been killed twice.
The more they write, the more warped their interpretations are.
Daphne, your analysis, so far, seems to be the most reliable. I only hope that the investigators out there are following.
Suggestion: Police should trace his whereabouts through phone records as far back as possible to enquire whether he was in the vecinity of Dingli Cliffs beforehand – to ensure his plot goes as planned (since the name Cliff Dingli was mentioned)