Was Dolores Claiborne guilty? Abandonment of Attempts & Causing the Conditions of Own Defense

The Stephen King novel “Dolores Claiborne” and the movie and opera by the same name raise two interesting and arcane matters of the criminal law of attempts and self defense.

The story revolves around two deaths for both of which Dolores was a suspect. Her hours-long, stenographically recorded, statement for the inquest investigation of the second death, that of Dolores's long time domestic employer and friend Vera, is the entirety of the novel. The film is also set at the time of the second investigation but draws on a mix of current and flashback scenes, including flashbacks, as told to daughter Salena, of the death of Dolores's husband, Joe, found at the bottom of an abandoned well two decades earlier. 

The film is better than the novel, and the film's treatment of the two deaths raises more interesting criminal law issues.  There is an opera too, by Picker, which has been performed in San Francisco and New York. I haven't been able to find enough of the opera, however, to see how it handles the criminal law issues. So except where otherwise indicated, I will concentrate on the film.

I. Vera Donovan's Death: Abandonment of Attempt

From the standpoint of omniscience the facts of Vera's death are these: Dolores, an close friend of Vara's as well as her servant, struggled unsuccessfully to prevent Vera from precipitating herself out of her wheelchair and down the stairs of her home. Vera died from these injuries. So her death was a suicide. Dolores rushed to her aid only to hear Vera plead with her to put her out of her immediate misery and the enduring misery that her life had become. Motivated by her loyalty to Vera, Dolores ransacked the kitchen for a deadly implement, rejected a knife, and seized upon a marble rolling pin. Raising the rolling pin above her head to give a deadly blow, Dolores, as we read from her face, changed her mind, and decided not to strike. Unbeknownst to Dolores, Vera had just before this instant expired. The letter carrier, having heard alarming noises, entered the house and found Dolores with the rolling pin still raised above her head and standing over Vera’s body. Careful attention to the movie makes this a close call, but I am going to assume, again for the benefit of the issues, that Delores had changed her mind before she was aware the letter carrier had entered the house.

I will later add some additional facts that would be significant from a jury’s non-omniscient view in discussing how the trial might have gone, but the above facts will do for the first question: Was Dolores guilty here as a matter of law and sound criminal justice theory?

She clearly was not guilty of murder, as she was not the cause of Vera’s fatal injuries. (Having had no reason to suspect Vera of suicidal intentions, Dolores would also not be liable for any lesser homicide charge, down through criminally negligent homicide.)

But was she guilty of attempted murder?

Do not acquit her by dint of Vera’s death prior to when the rolling pin would have done its work.Yes, Dolores could not have killed Vera. It was a physical impossibility. Impossibility, however, is not, in general, a defense to an attempt charge anywhere, including, by statute, Maine, on an island of which the events took place. There are some exceptions for attempts that are not simply impossible but bizarre (attempts by voodoo pin sticking are ruled out in the texts, if unseen in the courts.) If Dolores had been standing with her rolling pin over a skeleton, no attempt charge could be brought. Vera may have had some of the indicia of death, but they were not nearly obvious enough for the "bizarre impossibility" defense. Before leaving the impossibility issue, let me opine that this defense should be much broader, as a matter of good criminal law theory, although perhaps not as broad as I argued for in “Justice in Criminal Liability: Decriminalizing Harmless Attempts,” 53 Ohio St. L.J. 1057, 1088 (1992).

An attempt requires intent (the “mens rea”) plus a sufficient act (the “actus reas”). For criminal law purposes, there was intent from the time Dolores understood Vera's request and headed for the kitchen to get a deadly implement. Criminal law intent is a binary concept; either you have it or you don't. In this respect it is an uncomfortable fit with contemporary psychology and neuroscience which has revealed that the human psyche is not nearly so unified as folk psychology, and Descartes, would have it. Human action does not arise from the commands of a single-minded central authority. At least, it would be more nearly accurate to say that action arises when a coalition of neurons wins the competition for control of the motor regions.

How much ascendancy did “accede to Vera's plea” ever have over “don't kill my friend”? Could that ascendancy be projected beyond getting ready to strike the deadly blow? Did “don't kill” stage a last second surprise coup displacing “kill” or was “kill” all along in a life and death struggle with “don’t kill,” only finally resolving not to kill just before Dolores became conscious of the letter carrier? Even if omniscience knows that Dolores really never had the requisite intent, the law of Maine might well require a jury instruction that would eliminate this consideration. The jury may be charged that, if it finds that there was no reason for Dolores to have the rolling pin poised for a deadly blow except the intent to kill, then the intent element is made out. Omniscience may know that this is an injustice, at least a partial injustice, but defense counsel will almost certainly be left to rely only on a specific and special criminal attempts doctrine – the abandonment defense.

Dolores will have no hope of making headway on the actus reas element. For attempt in Maine actus reas is a “substantial step.” This vague language is found in the Model Penal Code, and has been incorporated by many states. Alternative language is often no more precise, for example New York’s “conduct which tends to effect the commission.” There are many debates as to how far an act must go to count as a “substantial step” or “tending to effect.” For many jurisdictions Dolores’s rummaging in the kitchen would be sufficient. All jurisdictions, however, would find a sufficient act by the time Dolores raised the rolling pin above her head. After all, had the letter carrier been a little earlier and grabbed the rolling pin at the instant she raised it above her head, an attempted murder charge would surely be good.

What is the law to make of the fact, however, that at the next instant we know, with omniscience remember, that Dolores absolutely changed her mind, as reflected by a subtle change of her facial expression. (At least it was an absolute change if we adopt the law’s binary view of such matters.) Does Dolores’s utterly voluntary abandonment of her criminal plan absolve her of criminal liability? (The "utterly voluntary" here depends upon our perception that she changed her mind an instant before becoming aware of the letter carrier.)

There are two different lines of thought on this. The first, represented in some theory and in a good deal of judicial language in cases not at all similar to Dolores’s, is that abandonment to be effective must take place before the crime was complete. It sounds right, at least in the abstract, that a crime once committed cannot be uncommitted. Here, of course, that would mean that Dolores is guilty of the attempt because there was mens rea and sufficient actus reas to constitute attempt in that instant before her rejection of her prior plan.

The alternative view is that abandonment is a good defense so long as it is still in the control of the defendant to prevent the harm from occurring, and so long as the change in intention is not the result of the anticipation of being caught, the recognition of some unforeseen obstacle, or anything else more “external” than a wholly voluntary change of heart. This latter view has a moral theory advantage in that it respects the autonomy of the subject and her free will. Having come to her own decision to do the right thing, and having caused no harm, it would be morally repugnant to punish her.

Looking to consequences, society has an interest in giving intending evildoers an incentive to abandon their criminal enterprises. Although we would prefer earlier abandonment, we want people to decide at the last instant not to pull the trigger if it comes to that. 

There is a countervailing undesirable incentive in permitting late abandonment as a defense. It might make it easier for miscreants to start on a criminal project, and pursue it through several stages knowing that they can abandon it with impunity at nearly any point.

 

The view towards which we are pushed watching the movie is that Dolores’s abandonment, late as it was, should absolve her of criminal liability. I think this is correct as a matter of the morality that ought to underlie the criminal law.

You may still feel some attraction to the principle that once a crime exists, it cannot be made to unexist, short of a retroactive change of law. Crimes are irreducibly historical, and are not subject to later change any more than the fact that Caesar crossed the Rubicon. (What is in the history books may change, of course, but not what actually happened, whether in the books or not.) However, we have good reasons in moral theory and in policy to conclude that at one moment Dolores had committed a crime and yet at the next moment that crime no longer existed. Here, as in not a few other cases in the free will and determinism complex, it is not metaphysics that should control morality and law but morality and law that should control metaphysics.

On the novel's version, Dolores never raised the rolling pin into position to strike. When she came out of the kitchen with it, she discovered that Vera was already dead. Knowing that she could no longer kill, there is no abandonment.  Was getting the rolling pin by itself a "substantial step?  The Maine courts have it that such a step goes "beyond mere preparation and is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime." There is obviously room here for some argument, and case law is not entirely consistent in this area.

II. Vera Donavan's Death: The Trial

Let us renounce omniscience for a moment, and think about a fictional trial that does not exist even in fiction. In it Dolores is prosecuted by a fallible district attorney and tried before twelve fallible peers. The investigating detective in the case of Vera's death was grinding an ax acquired from his failure to put a case together against Dolores in her husband's death. He is now convinced that Dolores pushed Vera down the stairs. At the inquest, upon hearing Dolores's  statement, and the confirmatory testimony of the local constable that Dolores was surprised by Vera's will, the investigator reluctantly throws in the towel. Had he not, there would have been a good possibility that the district attorney would have pursued an indictment for attempted murder, or even for murder.

A murder charge might have been brought even if the prosecutor tended privately to credit Dolores's account of Vera's suicide. Overcharging is perhaps the most common of prosecutorial abuses. Its chief attraction lies in the leverage it gives in plea bargaining. Here the prosecutor might think charging the murder would have the additional advantage of forcing the defendant to waive her Fifth Amendment rights and testify if the case went to trial. With a murder charge in the mix, the jury might also be inclined to agree to compromise on attempted murder. Some prosecutors will rationalize: “Well, I think Dolores is guilty of attempted murder. She has pleaded to (or been convicted at trial of) attempted murder. So charging murder ended up with the right result. No harm no foul.” In addition to its duplicity, overcharging, as so rationalized, results in many guilty pleas by innocent persons and sometimes to the compromise jury conviction of the innocent – as might possibly have occurred had Dolores been indicted for murder.

The trial would feature a witness who heard Dolores and Vera arguing heatedly and reviling each other on various occasions. Dolores at least once said that she would kill Vera, or words to a similar effect. Dolores was the sole testamentary beneficiary of Vera's substantial fortune, which the prosecution would argue as motive. 

The defense would establish through cross examination as well as its own witnesses that both Vera and Dolores had angry exchanges with nearly everyone whose paths they crossed and that their own shouting matches, filled with recriminations and threats, had gone on for decades, without ever advancing beyond the verbal. Dolores had worked for several years since Vera's will was made for very little pay and long and demanding hours. The local constable would testify that Dolores seemed surprised and a little angry when she was told that she was Vera's beneficiary. The very existence of the will would be argued to show that, despite their loud name calling, there was an underlying affection between the two.

Cross examination of the crime scene witness would have shown that nothing about the scene was inconsistent with Vera's having committed suicide by launching herself from her wheelchair at the top of the stairs, and her doctor could have testified that Vera was physically capable of doing this.

It would not, however, have been a case in which the lawyer could afford to indulge the defense preference for keeping the client off the stand. The presumption of innocence and proof beyond a reasonable doubt would not be enough here. A full defense theory would have been needed to give the jurors a real alternative to the prosecution theory.

Dolores would have testified that Vera was her only friend as well as her employer and that she had known nothing about the will. She would recount her unsuccessful attempt to reach Vera in time to stop her from precipitating herself down the steps. Dolores would describe Vera's emotionally compelling plea for death, and would make it clear to the jury that other than for that plea, and her loyalty to Vera, she would never have entertained any thought of hastening the end of Vera's life. For years Dolores had been essentially alone in sustaining that life, at a great sacrifice to herself.

The direct would have been organized to suggest that, acting in extreme emotional stress, Dolores did not even confront the question of whether she was really going to kill Vera until she raised the rolling pin and found, conclusively, that she could not. The defense will want to lead the jurors to believe in their hearts that Dolores never really intended to kill Vera, even if the judge, in instructing them, seeks to compel the opposite conclusion. Certainly Dolores would give detailed, and we anticipate heartfelt, testimony on the complete and irrevocable nature of her realization that she would not and could not hit Vera with the rolling pin.

Defense counsel must work on  mens rea anticipating the possibility that the judge will not even explain the defense of abandonment to the jury, deeming it inapplicable, or will explain it in a manner that the jury would be compelled to reach the conclusion that the defense did not apply. Even anticipating an unfavorable charge on abandonment, however, defense counsel will emphasize the completeness with which Dolores had rejected any thought of harming Vera.

The reason that the defense will put the best possible face on Dolores's intent throughout and on the completeness of her abandonment of any intent to harm Vera is that the judge's instructions to the jury, if scrupulously followed, might require conviction. In this eventuality, the defense will have nothing left but the possibility of jury nullification – a judgment of acquittal contrary to the law as charged by the judge. Defense counsel cannot, in summing up, explain to the jury that it has an unreviewable power to do this. Even for defense counsel to hint at it is grounds for disciplinary action as well as a mistrial. Counsel can, however, in making permissible arguments on the elements of the offense, emphasize those facts that might lead an enterprising jury to see the appeal of bringing in a verdict contrary to the facts and the law as it was given them by the judge.

In cross examining Dolores, the prosecution would get admissions that she knew what she was doing when she searched the kitchen, rejected a knife, choose the rolling pin, returned to Vera, whom she thought was still alive, and raised the rolling pin over her head to strike a more powerful blow. The prosecutor might also ask Dolores to elaborate what she went through in tending Vera, who was slowly deteriorating in body and, episodically, also in mind. The jury cannot help but wonder if Dolores, with her mercurial temperament, had not reached the end of her endurance.

The letter carrier will be an important witness for both sides. Can the defense bring out through him the look of anguish on Dolores's face, or will the prosecution leave juror's with the impression that it was anger or hatred? Was that rolling pin poised for a blow, or had it dropped just a bit into a more neutral position? Was Dolores close enough easily to strike a deadly blow or, consistent with her testimony, a step away from such a position. If these important details are a little vague in the letter carrier's memory, the defense can make better use of such questions as “So it is possible that Ms Claiborne was a full step away from Vera Donovan's body, isn't it.” At least some effect of the proof beyond a reasonable doubt standard should survive Dolores's taking the stand. (Criminal practitioners generally think that when the defendant testifies the proof beyond a reasonable doubt standard goes out the window, and the question becomes, "Do we believe her?")

As already suggested, the judge might well cut the legs out from under the defense case by instructing the jury that if they found beyond a reasonable doubt that Dolores intended to kill Vera when she raised the rolling pin, then they must convict. If the judge followed the metaphysical theory of attempt abandonment, she would not even instruct on that doctrine, it not being applicable on any reasonable view of the evidence in the case. If, however, the judge gave a jury charge on abandonment that would permit an acquittal if the jury found a voluntary, complete, and timely change of heart, then the jury would have something on which to deliberate. Otherwise Dolores's only hope would be jury nullification.

As in all cases where the defendant testifies, Dolores's credibility would be crucial and it would probably be pretty good. Unfortunately for Dolores here, and I think for justice, her likeability would also be important, and, if it comes to jury nullification, not just important, but essential. That could be a problem.

III. Joe St. Clair's Death: Causing the Conditions of One's Defense

Let us go back two decades. Dolores had long been emotionally tortured and beaten by her husband, Joe, and had just found out that Joe was sexually abusing their teenage daughter. Regaining our omniscience, we know that Dolores formed a plan to kill Joe. She had discovered an old well on their property, covered by rotting boards and brush. She improved the brush cover to make it less visible. Buying a fifth of Scotch for Joe was enough to ensure that he would become drunk. Once he reached that state, Dolores confronted him first with his appropriation of their daughter's college fund at the bank.

As she anticipated Joe became enraged. As she may not have anticipated, he succeeded in grabbing her and nearly in strangling her to death. Breaking away, Dolores, back on her plan, or perhaps also out of anger, confronted Joe with his sexual abuse of their daughter supplemented by crude aspersions on his masculinity. Then she ran straight for the well. Joe pursued, catching her once with apparently murderous intent. She broke away, running a short distance through the brush, and executing an elegant long jump over the well. Joe, innocent of its existence plunged in. Clinging to a timber across the top, he pleaded for Dolores to rescue him, a plea she to which she did not respond even as incompletely as she later responded to Vera's opposite entreaty. The timber gave way, and Joe, reported missing by Dolores, was found by a search team days later.

Dolores's defense here would be self defense. She used a deadly condition, the hidden well, against an imminent deadly threat – her husband, who had just nearly killed her and was in enraged pursuit. So far as she knew there was no other way to save her life, and we, omnisciently concur.

The potential problem with the defense is the doctrine of “causing the conditions of one's defense.” It is the law's way of precluding one sort of perfect crime. Suppose that Oscar would love to spend a night in the luxury mountain cabin of the van Plush family. With no van Plush in residence, Oscar watches the weather reports and hikes off towards the cabin on a morning with a blizzard predicted later in the day. Reaching the cabin with the storm howling around him, Oscar has no survival alternative other than breaking into the cabin. He eats and drinks only what is necessary to sustain him, but then, survival on the van Plush larder is no hardship. In the morning, after enjoying the view from the breakfast room, Oscar makes his way back to civilization on a pair of the cabin’s touring skis. He subsequently returns the skis to the van Plushes, along with a check covering what he ate and the repair cost for the window lock he forced.(These repayments Oscar makes as a matter of potential civil liability and to avoid a conceivable larceny charge. They have no bearing on the validity of his defense to unlawful entry.)

Had Oscar been innocent of the weather report and only happened to find himself near the cabin when the storm hit, he would have had a good defense of necessity or “lesser evil” against a charge of breaking and entering. Here he does not because he intentionally put himself in the necessity of gaining entry to the house. This is the doctrine of causing the conditions of one's defense.

Does it doom Dolores? Dolores was not planning to rely upon self defense, but instead intended that the coroner would conclude that his death was accidental. Wandering about in a, not unusual, state of intoxication, Joe had stumbled into an unknown and nearly invisible well. 

Except for Dolores's plan to rely upon accidental death rather than self defense, however, Joe's death is a standard case for applying the doctrine of causing the conditions of one’s defense. Dolores planned to use the well to kill him, prepared the well, intoxicated Joe, provoked him into pursuing her, and led him directly over the well. Nearly everything went exactly according to plan. In that respect, it is like Oscar and the cabin. I see no good reason why one who culpably undertakes a plan of this sort should be able to avoid the doctrine of causing the conditions just because she was planning to avoid criminal liability in a different way.

There are three possible ways, however, in which Dolores might argue that she can take advantage of the defense of self defense after all: legally insufficient provocation, victim escalation, and her status as an abused wife.

    1. Legally Insufficient Provocation (Privilege)

Dolores's case on its surface is an instance of what is probably the most common kind of causing the conditions of one's defense. The criminal defense in point is self defense, and the causing the condition is provoking the victim into a physical confrontation, of which the defendant then takes advantage to injure or kill. For example, the defendant tosses a drink in the victim's face; the victim throws a punch, and the defendant proceeds to beat the victim brutally. The defendant, having started the fight, albeit with an assault probably too minor to count as criminal, will find his self defense claim cut off by the causing conditions doctrine.

Less confrontational provocations than drink throwing can start fights. What if the provocation is only words? The law is pretty clear that words alone, even extremely insulting or abusive words, are not enough to found a justification of self defense. So I cannot claim self defense if I punch someone for calling me a vile name. It might seem to follow that mere words in provocation should not count as undermining the provoker's right to self defense when the provokee punches the provoker.

There is a good deal of general language, however, to the effect that self defense is only available to the innocent, where innocence requires more than non-criminality. It is even said that one cannot claim self defense if he knowingly entered a volatile situation that he could have avoided. Ben is perfectly within his legal rights to run into a mob that is chanting “Kill Ben,” but he may not be able to claim self defense if the member of such a mob punches Ben, and Ben then beats the tar out of him.

My impression, without any very deep research, is that the cases will show a good deal of inconsistency on how clean the hands of a self defender must be where causing the conditions of own defense becomes an issue. In any event, hands that are not too dirty remain important for the self defender. Law's mythical “reasonable person” is never provoked to violence by words alone, but the criminal law will take cognizance of the fact that some words are so vile or injurious that they will provoke ordinary people – people who deserve the protection of the law from assailants who would seek to cloak their pre-planned violence in self defense. So  had Dolores confronted Joe only with words, and not with any sort of physical menace, is a good fact for her. The one small push she gave him during the confrontation is probably too inconsequential to mention.  But, that push aside, the merely verbal character of her provocation would probably not be enough to get her free of the “causing the conditions” doctrine.

Dolores's provoking words were not merely insults, however. My speculation is that if a defendant can cite some other good reason for uttering provoking words, he may be able to avoid the doctrine and benefit from self defense. Consider an extreme case. A legislator who knows that her enemy, Senator Holiday, will be provoked to violence when she rises to speak against Holiday's bill. She arms herself with pistol and quick draw holster and practices her marksmanship. She rises in the Assembly, and begins to excoriate the bill. Holiday fumbles with his own pistol, and she shoots him before he can get off a shot. (They are in one of those jurisdictions that recently decided open carry is a fine thing for legislative chambers.) Even if she would not have spoken on the bill but for her plan to kill Holiday, her defense of self defense should still succeed. Words with this sort of high privilege will not count as provocation for the purposes of the causing the conditions doctrine even when they do in fact provoke according to plan.

Dolores can make a good case that confronting a husband with his sexual abuse of their child is morally privileged and deserves strong protection from the law. Even though she has an ulterior motive, she could cite a reason for confronting Joe, the protection of their daughter, that society would endorse. See my “Justification and Bad Motives,” http://moritzlaw.osu.edu/osjcl/Articles/Volume6_1/Crocker-PDF.pdf

Consider the following variations:

1. “I am going to confront Joe, for the sake of my daughter, and hope I can handle the consequences.”

2. “I am going to confront Joe, for the sake of my daughter, and if it comes to that, I will use the hidden well to escape from his wrath.”

3. “I am going to confront Joe, for the sake of my daughter, and I hope he will come after me with intent to kill or cause serious physical injury. Then I will use the hidden well, and be rid of him forever.”

4. “I am going to confront Joe, knowing that is in my daughter’s interest, but for the purpose of provoking him to come after me with intent to kill or cause serious physical injury. Then I will use the hidden well, and be rid of him forever.”

(1) and (2) are uncontroversially OK. The causing the conditions doctrine would not apply, and Dolores could take advantage of the law of self defense. I would argue, essentially as I did in “Bad Motives” that Dolores is also entitled to the defense in (3), and even in (4). Dolores can still give an excellent justification in protection of her daughter for confronting Joe, even if that was not her motivating reason.In defending the Dolores of (4), I may be in the minority, and  (4) is the Dolores of the film. 

There is, however, one other crucially significant fact. Dolores got Joe drunk to increase the probability that he would be provoked into assaulting her and so into a chasing after her. She cannot, unfortunately, give a good justification for intoxicating plus confronting. The intoxicating adds nothing to, and presumably detracts from, any of what is socially commendable about the abuse confrontation. It is as if the situation is reduced to one of pure provocation. It is for this reason that Dolores cannot make use of a “privileged provocation” gambit to avoid being said to have caused the conditions of her own defense, and losing her self defense claim.

    2. Victim Escalation

Can Dolores make anything out of the extreme escalation in the conflict when Joe nearly strangled her to death. Isn’t anyone who has just escaped from a deadly attack entitled to defend herself? Could she be indicted if she had picked up a baseball bat and broken Joe’s leg, and so kept out of his clutches? Not having a bat on hand, can we fault her for using the only means at her disposal for saving her life – the hidden well? It has always been my view that the defense of self defense exists because neither morality nor law can demand too much of us. Is it not asking too much of Dolores essentially to submit to her own death rather than using an available, if deadly, weapon?

It is too much to ask Dolores not to save herself by using necessary deadly force. The problem is that the deadly force was only necessary after she put her plan into operation. The law does not ask too much of Dolores in forbidding her from intoxicating and provoking Joe and then using deadly force against his deadly attack.

If Dolores’s plan had been to provoke Joe into a mere fight in which she, being sober, would give him some injuries, then his escalation to the deadly violence level would, I think, have revived her right to self defense, and even deadly self defense if that alone was available. Intending to kill Joe all along, his use of deadly force is not an escalation that frees her from the doctrine of causing the conditions of her own defense.

    3. Abused Wife Defense

If Dolores had a winner on either privileged provocation or the victim escalation front, she would be well advised to steer clear of the abused wife defense. Emphasizing abuse may suggest to the jury that the defense itself does not believe in the soundness of its self defense claims. However, as neither the privilege nor escalation lines seem adequate to defeat the causing the conditions doctrine and revive the availability of self defense, it would be good lawyering to bring the facts of Dolores’s abuse at the hands of her husband to the attention of the jury and the judge. Jury nullification is a real possibility where there is such a long history of abuse, especially when combined with sexual abuse of a twelve year old daughter. Were there judicial discretion in sentencing, which there would be if Dolores were convicted of second degree homicide in Maine, the judge would surely take the abuse into account.

A wife who underestimates available non-violent options to free herself from an abusive situation or who overestimates the degree of force necessary to stop an attack should, as a matter of sound criminal law theory, benefit from an adjusted measure of what is “reasonable,” when she uses force against her abuser in self defense. See my post of 8/28/14. Here, although as defense counsel I would want to interview my client in detail on these matters, it does not appear that Joe’s abuse had so severely undermined her judgment that she was incapable of assessing what was reasonable – at least to such a degree as to make the causing the conditions doctrine inapplicable to her. The germ of the idea to kill Joe came from Vera, who told Delores that an accident could be an unhappy wife’s best friend. Dolores developed and executed her plan with exacting rationality. Her abuse on the facts we believe them to be, terrible as that abuse was, would not overcome the causing conditions doctrine to give Dolores a good defense of self defense.

In the novel, hours after luring him into the well, Dolores returned to the well to find Joe about to succeed in climbing out. She clobbered him with a rock which left him dead at the bottom of the well.  Even though he (pretty miraculously) managed to climb the walls of the well, we know that he was far too injured to chase Dolores had he succeeded in getting out of the well. So self defense for the stoning would seem impossible because of the imminence requirement on these facts alone. 

There is more, however. This is a Stephen King novel. Joe grabbed Dolores's ankle when she approached the well. She could not get free without using physical force, indeed, at least arguably in these circumstances, deadly physical force. Dolores would, then, have a good self defense claim were it not for the history of the prior few hours.  The final incident at the well, even though hours later and involving circumstances quite unforeseen by Dolores, should, I think be seen as consequences of her original plan. If that is right the doctrine of causing the conditions of one's own defense would still bar self defense for the novel's late night ankle grab. 

IV. Conclusions and the Tension Between the Conclusions

So, in the end, I think we have to conclude that self defense would not be available to Dolores, and that the account she gave on tape to her daughter (or was in the stenographic record in the novel) could well have led to her successful prosecution for murdering Joe all those years earlier, there being no statute of limitations on murder in Maine or any other jurisdiction of which I am aware. 

There is, I confess, some slight tension between my conclusions in the two different Dolores Claiborne cases. It is brought out by the following question. What if Dolores had  abandoned her plan to kill Joe, say after her final verbal provocation? She decided that she would not run to the well, but would just outrun through the brush the thoroughly marinated Joe? When he caught her once, she realized that she could not, in fact, safely outrun him, and that the well was the only way she could preserve her life. Had she, at any post-provocation time, run in any direction other than towards the well, that might well give rise to a good defense. She could then truly say that she only finally headed for the well after again having once been caught in flight.  In the real fictional world, of course, she always ran straight towards the will, and, with our omniscience, we know that she never abandoned her plan to kill Joe. 

In an intermediate case Dolores decides, while running towards the well, that she really only wants to survive and will redirect her course if Joe falls unconscious or starts to stumble so badly that successful escape is guaranteed. It is not clear to me that so provisional an abandonment ought to preclude application of the "causing the conditions doctrine," but it is also not clear to me that it shouldn't.

For crimnal trial issues in the movies see Conjectures & Arguments, Philosophy & Law: Were the 12 Angry Men Right? (lawrencecrocker.blogspot.com)