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Criminal Law: First Degree Murder

Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales.

A comprehensive definition of first degree murder is “the intentional unlawful killing of one human being by another, with malice aforethought." As any murder must encompass mens rea, the guilty mind, and actus reus, a deliberate act, the mens rea element may be planned over a significant time period.

On the other hand, it can reflect the result of a “slow burn," the response to harassment which has persisted over time. Perhaps one final derogatory aspersion or action causes a rage to erupt which has been vulcanizing for years.

Premeditation can be indicated by such factors as: lying in wait to ambush a particular victim, poisoning, hiring someone else to kill a specific victim, or any other framework demonstrating a plan—this will be likely to result in the finding of malice aforethought.

Motivation is a primary component in this type of verdict. If a suspect can be shown to have borne a festering grudge, or to have had some financial interest in the death of a victim, this factor will be considered. Indeed, a form of blackmail, although due to most poignant of reasons, is at the centre of the first case we discuss.

First degree murder is generally considered to be “the intentional unlawful killing of one human being by another, with malice aforethought."

First degree murder is generally considered to be “the intentional unlawful killing of one human being by another, with malice aforethought."

Literature and Law

A symbiotic relationship exists between these two areas. Some of the most renowned literary works, beginning with those of Shakespeare, have centred on first degree murder.

The thoughts and reasons involved in the plan allow a writer to explore the bases of crimes in a way which fascinates the reader. In addition, such a writer can, in creating his own character, endow him with thought processes which would be rejected in a court of law as pure speculation.

Given this freedom, there will be, inevitably, some degree of authorial bias. Conversely, the continuing fame of a number of cases is based upon their literary exploration, especially when that case is discussed by a significant writer.

A prime example is the 1908 case of: The People of the State of New York v Chester Gillette, upon which Theodore Dreiser based his masterpiece, An American Tragedy. While borne of meticulous research, Dreiser creates his fictional protagonist, Clyde Griffiths, with more compassion than might have been warranted by the actual killer.

Chester Ellsworth Gillette and Grace Brown

Chester Gillette, (hereinafter G.), was allowed, as a somewhat poor relation, to undertake a supervisory position in his uncle’s skirt factory.

At some point, he became enamoured of an employee, Grace Brown, (hereinafter B.) G. and B. entered into a relationship which seems to have developed from infatuation into genuine love. In any event, facts indicate that G. placed intensifying demands upon B. to bring their relationship to an intimate level.

Having acquiesced, she became pregnant.

This pregnancy seems to have coincided with Gillette’s waning affection. While somewhat difficult to cull fact from fiction, this impending paternity seems to have coincided with Gillette’s growing acceptance into his uncle’s upper crust society.

Willing to release this man who she knew craved his freedom; B. did all she could to secure an abortion. When these efforts failed, she began to plead, and then demand that Gillette marry her. Indeed, she had almost no other choice. In the early 1900, to bear a child out of wedlock rendered one a pariah, both mother and child scorned and despised. Conversely, Gillette’s opportunities of expanding upon his social foothold would have been ruined.

Chester Ellsworth Gillette and Grace Brown

Chester Ellsworth Gillette and Grace Brown

Chester Gillette's Solution

Driven further towards desperation by G.’s indecision, B. began threatening to report their involvement to his uncle, if he did not at least marry her for a long enough period to give their child his last name. While this was the best she could offer, it would not, by any means, solve G.’s dilemma.

Thus, G. invited B. on a boat trip, aware that she could not swim and had a fear of water. Evidently her trust in him was such that she agreed to the outing.

On that day, G. deliberately reached their agreed-upon hotel early. Once there, he registered under a false name. Later, he chose a different alias when renting the boat. Both of these false names contained the initials on his set of monogrammed suitcases.

On the other hand, he registered B.’s real name, giving her hometown as her address. Later, when signing for the rental of the fatal boat, he again registered her name, but this time accompanied it by that of another man.

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In time, having steered the boat into a remote area, G. struck B. on both sides of her head with a tennis racket. (The counsel for his defence, while maintaining his innocence, did not explain his reasons for bringing such sports equipment on a sailing excursion.) One of these blows shattered B.’s skull, to the point of penetrating her brain. B. was able to let out one scream, heard by a woman in a cove who could not see the boat.

Further Signs of Premeditation

G offloaded B.’s dying body into the lake where she drowned. Then, he placed his straw hat, apparently bought for a picnic, in the same area, first removing any identifying tags. Having reached the shore, he changed into a set of dry clothes. Later, reaching another hotel for the night, he stopped at a nearby inn to ask if a drowning had been reported.

Traced to the killing, G claimed that, during their boat trip, the deceased took her own life by smashing her head against the side of the boat. Clearly, the jury viewed this explanation as specious.

Perhaps the most damning evidence was the broken tennis racket, damaged to a degree beyond that possible in the fiercest tennis match. In addition, B.’s letters were read aloud in court, conveying her sense of terror and ultimate desperation.

Thus, Gillette was convicted of murder in the first degree and sentenced to death. Despite appeals, this sentence was upheld, resulting in his execution, on March 30 1908, by means of the electric chair.

The length of our discussion here reflects the detail through which a jury must sift before reaching a verdict. This case, adjudicated over a century ago, may serve to remind us of the struggles confronted by a jury today, presented with an often overwhelming amount of forensic evidence.

Richard Albert Loeb & Nathan Freudenthal Leopold

Richard Albert Loeb & Nathan Freudenthal Leopold

Nathan Freudenthal Leopold Jr. and Nathan Albert Loeb

In the Gillette case, the killing, despicable as were its roots, was, to some extent, within the scope of human understanding. Evolutionary progress urges each of us to pursue the optimal form of life available. The boundary lies in the lengths to which each of us is willing to venture in this primal quest.

Whatever remnant of empathy we might feel for Gillette is lost in the 1925 case of Leopold and Loeb. Here, two young men, both geniuses, used their joint intellects in order to engineer what they believed would prove an unsolvable murder.

Caught up in the works of Friedrich Nietzsche, they convinced themselves of their joint ability to rise above both those moral and legal codes applicable to the rest of society.

In truth, their plan came close to fruition, its one small but definitive error committed by Leopold. Despite the fact that both young men sprang from affluent families, their plan was two-dimensional.

It entailed the pretended kidnapping of a child. Having killed their victim, they would then send ransom notes to the parents, offering to return their child after the demanded sum had been paid.

Putting Their Plan Into Practice

Having perfected their method, these two conspirators then drove about their town at the time most children would be returning from school. Robert Franks, age 14, was their chosen victim. Urging Franks into their car, one of this pair, sitting in the backseat, hit him with a chisel, while the other forced a cloth into his mouth.

Which of the perpetrators committed each aspect of the crime proved ambiguous, and was, in the true sense, irrelevant. Once certain young Franks had died, Leopold and Loeb rid themselves of his corpse, and then drove off, feeling carefree.

Their nonchalance continued until a pair of glasses, dropped by Leopold, in the area where the boy’s body was discovered. A hinge, used in only a few pairs of glasses issued at that time comprised the initial clue. When traced to Leopold, he claimed that, having fallen during a bird watching hike, the spectacles must have fallen out of his breast pocket.

Still, asked to demonstrate how this had occurred, he could not reconstruct it. In addition, members of Leopold’s university’s study group, when questioned, provided samples of his work which matched perfectly with that of the typewriter used in producing the ransom notes.

This link rendered the remaining chain of evidence relatively straightforward.

Once apprised of the judicial danger facing these two young men, their families, doubtless believing in their innocence, joined together to ensure the services of the penultimate attorney to represent them. This was Clarence Darrow, a lawyer who had prevailed in a number of the day’s most controversial cases.

By then, Darrow at 67 had to some degree, retired from the practice of law. Still, frantic with worry, four members of both families rang Darrow’s doorbell late one night. When Darrows' wife answered the door, they strode past her into the Darrows' bedroom, where they begged, offering anything in their power to persuade him to take on the case.

Darrow Agreed

Having accepted the case, as always, he gave it his utmost. Unfortunately, he found his two most lethal enemies to be his two clients. According to the reports of the defence psychiatrists, Leopold, devoid of remorse, states he has no sense of any moral wrongdoing.

As, viewed from his perspective, there is no legitimate moral system. The fact of his gaining pleasure from any activity justifies his participation in it. Loeb, summarising their motive a bit more succinctly, said, “I did it because I wanted to.”

All but sabotaged by their complete lack of even a sham of contrition, Darrow told the press, “If these boys were poor, I feel confident I could get an acquittal. Their wealth is a tremendous handicap.

Aware it was his best option, to the amazement of both the defendants, their families, and the press, he advised his clients to plead guilty. Had they not done so, they would, given the evidence combined with societal pressure, been, almost certainly, sentenced to death. For similar reasons, in his closing argument before the court, Darrow stated:

“We want to state frankly here that no-one in this case believes that these defendants should be released. We believe they should be permanently isolated from society. … After long reflection and thorough discussion, we have decided to make a motion in this court to withdraw our plea of “not guilty” and enter a plea of guilty.”

Having shocked the court into some degree of submission, Darrow then offered mitigating circumstances such as his clients’ youth and implicit lack of understanding of society’s ethical framework.

By pleading for the comparative mercy of the judicial system, he, in a sense, bought a sentence of life plus 99 years. While hardly lenient, this was the best he could hope for in such a case of the blatant premeditation of the murder of a young boy, merely as an exercise of intellectual prowess.


What impels some lawyers to accept cases which they know they have a minimal chance of winning? Arguably, in the two above-mentioned cases, both were high profile, with legal fees underwritten by affluent families.

Still, the motives are, in all likelihood, far less straightforward. Indeed, Clarence Darrow, having defended Leopold and Loeb when approaching age 70, kept in regular touch with Leopold until his own death. (Loeb was killed in a prison brawl several years after imprisonment).

In the words of a professor and defense attorney who specializes in death penalty cases for the poor and disenfranchised:

“My students investigate, write motions, develop mitigating evidence, discuss the politics as well as the law behind court decisions, and learn with me about the humanity of the people we represent. The better we tell our clients’ stories, the less likely juries are to decide that death is the answer.”

This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.

© 2013 Colleen Swan


Colleen Swan (author) from County Durham on March 07, 2014:

Thank you Deborah for looking in. I try to to find captivating cases. Glad you enjoyed the content.

Deborah-Diane from Orange County, California on March 07, 2014:

Fascinating article about First Degree Murder, including discussing some high profile cases. I learned a lot from your article!

Colleen Swan (author) from County Durham on March 04, 2014:

Thank you Shyron. I appreciate your looking in again. Yes men and wombs are a conversation killer.

Shyron E Shenko from Texas on March 04, 2014:

Colleen, this is a fascinating hub, I came back to re-read. It would be funny if roles were reversed and men became pregnant.

Voted-up, Useful and Interesting and shared.


Arun Ramchandramurthy on December 08, 2013:

Although, a very nicely written hub, I'm disturbed by the the facts in the case-studies presented therein. Especially, the case of Loeb and Leopold shows us how irresponsible tampering with the moral fabrics of the society invite heinous transgressions. Philosophers should take some responsibility of how the society suffers or gains from their philosophy.

Thanks for the writeup Colleen


Shyron E Shenko from Texas on November 03, 2013:

Colleen, this is a fascinating hub, I like mysteries.

Voted-up, Useful and Interesting and shared.

Thank you for the following.


Surabhi Kaura on October 13, 2013:


I relished reading it. I am spell-bounded with your style of writing as well! I liked how you mentioned about the case to articulate about first degree murder. Keep it up!


Devika Primić from Dubrovnik, Croatia on October 11, 2013:

Criminal Law - First Degree Murder, another thought provoking hub and you approached this topic very well.

Colleen Swan (author) from County Durham on September 29, 2013:


Thank you for your comment which I am happy you found of interest . Kind regards Colleen

Ann Carr from SW England on September 27, 2013:

Interesting hub and interesting cases; you've obviously done much research. Amazing how some act and how others react! Up and interesting.

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