Washington Law Review


Pamela Cowan


A Maine jury found Stillman E. Wilbur, Jr., guilty of murder after the prosecution's proof of two elements: (1) that the homicide was unlawful, and (2) that it was intentional. Wilbur offered no evidence on his behalf to negate or otherwise refute the state's case other than his statement that he attacked the deceased in a frenzy provoked by a homosexual advance. The trial judge instructed the jury that if the prosecution established the above two elements, malice aforethought was to be conclusively inferred, unless the defendant proved by a fair preponderance of the evidence that he had acted in the heat of passion on sudden provocation. This instruction was consistent with the Maine homicide statutes which made murder and manslaughter different degrees of the same offense, with the onus on the defendant to present evidence sufficient to reduce the penalty. Unsuccessful in overturning the judgment of conviction in the Supreme Judicial Court of Maine, Wilbur filed a writ of habeas corpus in the United States district court. That court granted the writ, and its decision was affirmed by the Court of Appeals for the First Circuit. Shortly thereafter the Maine supreme judicial court decided another case contrary to the federal holdings, reaffirming its view that murder and manslaughter were merely two different degrees of a single offense. The United States Supreme Court granted certiorari and remanded Wilbur's case to the court of appeals for reconsideration in accordance with the Maine supreme judicial court's construction of the state homicide statutes. After the court of appeals found a denial of due process, the Supreme Court again granted certiorari and unanimously affirmed the decision. Held: Once the heat of passion defense has been properly raised in a homicide case, the due process clause of the fourteenth amendment requires the state to prove beyond a reasonable doubt the absence of such defense. Mullaney v. Wilbur, 421 U.S. 684 (1975).

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