Andrew Dys

Experts say killing alleged rapist still could be murder

adys@heraldonline.com

The gut feeling for some – probably many – is that an alleged Chester County rapist got what was coming to him when somebody shot him in the head July 29.

Michael Jermaine Terry, 39, had been in and out of jail his whole adult life for drugs and guns and violence and stealing.

On the day he was killed, police say, he took a 16-year-old girl he knew into the woods and attacked her.

When police came to investigate, they found Terry dead in the road a half-mile from where the alleged rape occurred.

Some are cheering for whomever killed Terry.

But soon the person who killed him might be facing a charge as serious as murder, say legal experts – even if Terry did commit a heinous crime just minutes before he was shot in what looks like revenge.

Emotion, the parent in anybody, is cheering for Charles Bronson as he sweeps up criminals with bullets in the old “Death Wish” movies that reach back to the 1970s.

Real life is that cops and prosecutors are required to investigate and solve killings – even if the person killed is the worst kind of offender.

Legal experts say the law is clear: “Taking the law into your own hands” is not legal.

Someone enraged by a previous crime cannot legally act with revenge violence, retribution violence or vigilante justice, said Miller Shealy, a professor at the Charleston School of Law and former prosecutor.

Law enforcement is required to investigate the death of even an alleged predator and if warranted, file charges up to murder, Shealy said.

“There is no room, under the law, for a revenge killing,” Shealy said. “There is no law that allows open season on anyone – even someone accused of a terrible crime.”

Police have not said who might be a suspect in Terry’s death or if anybody who knew the victim in the alleged rape is a suspect. Investigators are waiting for evidence to come back in both the assault and killing.

However, police and prosecutors and the courts must be able to work through criminal acts and accusations before a “rush to justice” by the public, a victim or a victim’s family, said Shealy and Debra Gammons, a former judge who also is a law professor at the Charleston school.

The law allows someone who walks in on a crime or sees a crime such as sexual assault to stop the attack, Gammons said, but does not allow retribution afterward.

“The law requires we let the justice system work,” she said. “Our society depends on letting the system run its course.”

Terry, accused of a terrible crime, was dead and could not be questioned by police about the allegations. He had no chance to defend himself, whether he was guilty of the alleged rape or not.

If someone is charged with murder in this case and a trial ensued, a jury could make a decision not to convict. It is possible that no way could 12 people on a jury who are parents, regular people, convict someone for killing a monster.

Jury nullification – the acquittal of someone even if the facts are against him, as in the movie “A Time to Kill” – can happen. It does happen. But it does not happen often.

And real life is not movies.

The person who killed Terry would be rolling the dice with his or her life by going to trial on murder or voluntary manslaughter – the so-called “heat of passion” killing, Shealy said, because prosecutors would argue that Terry was, in this killing case, a victim no matter how bad he was.

As understandable to regular people – to a jury even – as the idea that “somebody got what they deserved,” that is not the law, said state Rep. Tommy Pope, R-York, the former prosecutor for York County. Police investigate crimes and prosecutors convict criminals.

“You just can’t have people gunning other people down,” Pope said.

The law requires that even a person with an awful past gets a chance to defend himself in a courtroom, the legal experts say.

Even if it hurts our guts as parents to watch.

The public emotion against a convicted criminal accused of a heinous crime has no bearing though on charges against whoever shot him, the experts said.

In December 2003, a lady from York County, a good and decent person, a mother and grandmother named Janice Clark Smith, ended decades of abuse of herself and others by pouring her father a glass of wine – then shooting him dead.

Not a single person then or since has ever called George Manley Clark, the dead man, anything but a horrible, evil drunken monster. Not a single person came to his defense.

His daughter had killed the man who had been convicted of sexually abusing a family member, and who had beaten others for years, who had held guns at his children’s heads, who executed pets to scare his family.

If anybody ever deserved to be killed, so many said, it was George Manley Clark.

But his daughter was charged with murder, because the killing did not happen during the abuse. She chose to kill her father, and admitted that every time she was in court.

Her lawyer, bringing in dozens of people who corroborated the abuse, the horrors of this awful, evil man, always admitted the facts showed murder. The prosecutor who worked for Tommy Pope said murder.

Howard King, the judge, was so upset by the evils of what George Manley Clark did that he accepted a plea to the reduced charge of voluntary manslaughter, but still sentenced Smith to seven years in prison.

That judge, while acknowledging the terror that George Clark’s family had lived through, said in court in 2004 words everybody knew were coming, even when the dead man was possibly the worst person in York County: “Nobody can take the law into their own hands.”

After that story was reported in The Herald, the Smith’s family, her lawyer and others, were on “Larry King Live” and “The Oprah Winfrey Show.” A country and the world were appalled at what she had endured and many were upset that this lady had to spend even an hour in jail.

King, the sage interviewer without peer, said at the end of one show after shaking his head, that it sure seemed George Manley Clark deserved to be killed.

But the law does not allow even monsters to be killed after terrible crimes.

In 2002 in York, a Gastonia, N.C., man named Thurman O’Neill Smith Jr. was charged with murder after shooting his mother’s husband after allegations surfaced earlier in the day that the man had molested the man’s daughter when the daughter was 8.

The man accused of the shooting had another daughter who was abducted and killed in a 1981 case that was never solved.

Even though Thurman Smith was a father dealing with his children’s being hurt, police still charged him with murder.

A jury found Smith, who claimed the shooting was an accident, guilty of voluntary manslaughter. The conviction was later overturned, and Smith eventually pleaded guilty to involuntary manslaughter.

Something similar might happen all over again in Chester County.

“The courts sometimes seem miserably slow, and sometimes there is frustration,” said Shealy, the law professor. “But the law does not allow anyone to act as judge, jury and executioner.”

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