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Murderers’ ‘duress defense’ applies only to imminent death, Md. court says

Members of violent gangs who kill out of fear they would soon be killed if they disobeyed a deadly order cannot later claim they acted out of duress in order to change a murder charge to voluntary manslaughter, Maryland’s second-highest court ruled Thursday.

In its reported 3-0 decision, the Court of Special Appeals said the “duress defense” to murder applies only when the threat of death is “present, imminent and impending” rather than at some future time. The court added that participation in a violent gang undermines the members’ argument that they committed violence under duress.

The Court of Special Appeals issued its decision in upholding the murder and attempted murder convictions of MS-13 gang member Darwin Madrid. He was convicted for the shooting death of Gamaliel Nerio-Rico and the attempted slaying of another member of the rival 18th Street gang on April 16, 2016, in Prince George’s County.

Madrid testified at trial that he acted under a “green light” kill order from a senior MS-13 member, adding that the “green light would have been for me” had he not obeyed. Madrid said MS-13’s fatal punishment for disobedience would have been carried out no later than the next day.

The presiding Prince George’s County Circuit Court judge denied the request from Madrid’s lawyer that the jury be instructed on the duress defense. The judge said the defense was unavailable to Madrid because he did not say he faced imminent death if he disobeyed.

The Court of Special Appeals agreed.

“Madrid’s fear that he could face some punishment the following day was not enough to satisfy the requirement of an ‘imminent’ threat,” Judge Timothy E. Meredith wrote for the appellate court. “It merely showed that he may indeed have feared that someone might retaliate against him in some way sometime in the future for disobedience if he refused to shoot the enemy gang members, but, as a matter of law, that did not generate the duress instruction.”

Madrid’s involvement in a violent gang also militated against his claim of duress, Meredith added.

“(T)he evidence in this case, even when considered in the light most favorable to Madrid, leads to the conclusion that Madrid bears responsibility for being a regular participant in the activities of MS-13, and was therefore precluded from arguing to the jury that the known consequences of that participation provided a duress defense when he was told to execute another gang member,” wrote Meredith, a recently retired judge sitting by special assignment. “There is no basis for the law to conclude that a gang member chooses ‘the lesser evil’ by shooting an innocent person to avoid possible punishment from his own gang.”

Judges Stuart R. Berger and Douglas R.M. Nazarian joined Meredith’s opinion.

Neither Madrid’s appellate counsel, Assistant Maryland Public Defender Piedad Gomez, nor the state attorney general’s office responded immediately Friday afternoon to requests for comment on the court’s ruling.

The Court of Special Appeals rendered its decision in Darwin Naum Monroy Madrid v. State of Maryland, No. 1937, September Term 2017.

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