Her crime, she pushed an Indian immigrant to an incoming train causing his death. Erika Menendez a 31-year-old woman has been arrested and charged with murder as a hate crime after she admitted before law enforcement that she pushed Mr. Sunando Sen, a local NY businessman to his death because she hated Hindus and Muslims. She is now facing a second degree murder charge as a hate crime for the death of the 46-year-old Indian native and expected to be arraigned in Queens Criminal Court. If convicted as charged, she faces a maximum of 25 years to life in prison.

Days after her arrest based on tips, news began to circulate about her mental state before the attack. Her family talked about her being on medications for mental treatment, while her former mental health providers confirmed that she received treatments in the past for mental health issues though, they did not give details about her medical history. What made her to snap suddenly remains unknown. However, it is likely her legal defense is now preparing for what could be the defense of insanity or diminished capacity, nonetheless, the fact she claimed that she had pushed Mr. Sunando, because she “hates Hindus and Muslims.”

As a general rule, criminal defendants may sit passively during trial, since the Prosecution bears the burden of proving the government’s allegation. If Ms. Menendez decides to employ the defense of insanity or diminished capacity, the prosecution will bear the burden of disproving the defense. The burden of proof refers to two burdens, the burden of production and that of persuasion. Because it is not practical to require the Prosecution to prove that every defendant was sane, or that the defendant was not intoxicated, the burden for affirmative defenses, are different from other defenses.

First, Ms. Menendez has the duty of raising all affirmative defenses. This means she must produce all evidence to support her defense, known as the burden of production. She does not have to convince the jury that the defense is valid. She is only required to show enough evidence that would establish the defense. After the burden of production is met, she must now establish the burden of persuasion. This however, depends on the jurisdiction. Some states require the defendant to carry the burden, while others want the prosecution to bear the responsibility.

If the state of New York requires that the defendant bear the burden, Ms. Menendez must convince the fact-finder that the defense is true. She must establish this by preponderance of the evidence. In jurisdictions that require prosecutors to disprove such affirmative defense, some require proof by a preponderance of the evidence and others want proof beyond a reasonable doubt. As an affirmative defense, the defense of insanity has been widely criticized. Some want to ban the defense from usage, others criticized the tests employed to determine a defendant’s sanity. Nonetheless, the critics the defense of insanity is recognized by nearly all U.S. jurisdictions, except three states-Montana, Idaho, and Utah where the defense has been abolished.

A claim by Ms. Menendez that she was insane at the time she pushed Mr. Sunando to his death, would make the required mens rea to commit such crime unfounded. The reason, insanity is a mens rea defense and without the requisite intent to commit the crime, Ms. Menendez may claim her action was a product of insanity. Generally, one who is insane is incapable of forming a rational purpose or intent. In fact, she may put up a defense based on evidence to establish that insanity prevented the requisite intent from being formed. This is the defense of diminished capacity.

Diminished capacity is the rule that a criminal defendant, though not sufficiently mentally impaired to be entitled to the defense of insanity, may have been so reduced in mental capacity…that he or she was incapable of forming the mental state necessary, in law, for the commission of certain crimes. This means she could claim that though, she was not substantially insane, she was briefly impaired at the very moment she pushed the victim to his death. So far, it is unclear what defense Ms. Menendez, will choose either insanity or diminished capacity. There are tests for insanity: the M’Naghten test, the Durham test, and the Model Penal Code test.

Under the M’Naghten rule, an accused is not criminally liable if he or she was laboring under such a defect of reason from disease of the mind that he or she either did not know the nature of his or her act or, if he or she did, that he or she did not know it was wrong. The Durham rule on the other hand requires an acquittal if the defendant would not have committed the crime if he or she had not been suffering from a mental disease or mental defect. Under the Model Penal Code, a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform it to the requirement of the law.

So far, Ms. Menendez has not been charged with first degree murder. The state may have realized that the malice aforethought or premeditation required for such crime is nonexistence. To charge her with first degree murder would be a waste of public fund since her likelihood of being convicted based on such charge is remote. She had never had contact with Mr. Sunando before the attack, meaning she could not have premeditated his death. Evidence may show it was a random attack motivated by unseen circumstances such as, her mental state at the time of push.

A successful insanity or diminished capacity defense does not mean a defendant gets to go free. In most cases such defendants are institutionalized and confined to a mental institution for life or a limited time depending on the danger they pose to the public. In fact, most convicted felons prefer a jail time to a mental institution due to the stigma of being deemed insane.

The followings are possibilities. It is unknown what defense Ms. Menendez would use but irrespective, it will all come down to the fact-finder. If the jury buys whatever defense she puts forward, she is likely to be institutionalized. However, she may have incriminated herself when she said she had pushed Mr. Sunando, because she “hates Hindus and Muslims.” The statement can still be negated with a good defense but if the jury disagrees, she is looking at 25 years to life in prison.

Dr. Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment’ and ‘SAVING LOVE’ a fiction. Follow on Twitter @san0670.

Categories: Criminal act, Criminal Justice, Criminal Law, Homicide Law

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