Thread by @aburkhartlaw

An unfortunate side effect of not televising high profile trials is that traditional media often doesn't cover the instructions conference, because it's boring and they don't really understand it. But it's critical to understand why this instruction is worded the way it is.

https://twitter.com/Blind_Faith1423/status/1865188953877266823

The effect of this instruction is to provide a decision tree on the issue of justification. If the jury, deliberating on manslaughter, unanimously agrees he acted in lawful defense of others,* they don't have to also consider CNH because justification is a defense to it as well.

But, if the jury doesn't think his actions were justified but also doesn't think he knew that death was a substantial risk - e.g., he didn't know the chokehold would trigger a sickle cell crisis - then they should consider if he had the lesser mental state required for CNH.

What the instructions conference would tell us is exactly who wordsmithed this instruction and why they worded it this way. Normally, both parties have input into this instruction because there's a lot at stake with bad wording.

At the same time, when the defense requests that instructions read a certain way, they waive appellate error for giving the instruction the way they asked. This is the "invited error" doctrine that says you don't get to complain about a trial error that you caused.

As I read this instruction, it's possible the State requested confusing instructions to make a manslaughter conviction the easiest option. But it's also possible the defense wanted to make justification the centerpiece of the deliberations to improve the chance of full acquittal.

So without seeing the instructions conference, we don't know who proposed this wording or why. And without that info, we don't know if this instruction is problematic from an appeal standpoint.

If anyone has seen a recounting of the instructions conference, please tag me or post it in the comments because I'd love to see it and saw nothing when I went looking.

*Technically, the issue is whether the State has disproven lawful defense of others beyond a reasonable doubt. I don't want to minimize what the jury has to find to convict of any crime but I also don't want the example to be too confusing by getting into the weeds on this.