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Duress defense applies only to imminent death, Maryland high 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 top court unanimously ruled Friday.

In its 7-0 decision, the Court of 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 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 Delincuente’s order. 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 intermediate Court of Special Appeals and the Court of Appeals agreed.

“The problem is not that Delincuente did not expressly threaten to kill Madrid if he did not comply with the order to kill rival gang members,” Judge Shirley M. Watts wrote for the high court.

“Instead, the problem is that, by Madrid’s own account, the threat to him was not immediate – to the contrary, he might have expected punishment for noncompliance ‘the following day,’” Watts added. “Although we have no reason to doubt the genuineness of this threat of future punishment, our case law unequivocally provides that the defense of duress ‘cannot be raised if the apprehended harm is only that of … future but not present personal injury.’”

Madrid’s involvement in a violent gang also militated against his claim of duress, the Court of Appeals held.

“Based on caselaw of this court and the Court of Special Appeals, we determine that the defense of distress is unavailable as a matter of law to a defendant who voluntarily or recklessly placed himself in a situation in which it was reasonably foreseeable that the defendant could be subject to the coercive circumstances that the defendant contends constitute duress,” Watts wrote.

“In this case, Madrid voluntarily associated himself with MS-13 and participated in the activities of MS-13, even though he was aware that he would be subject to ‘punishment’ for the failure to follow orders, i.e., coercion, and that an order could involve the commission of violent crimes,” Watts added. “By participating in MS-13 gang activities, Madrid put himself in a situation in which it was reasonably foreseeable that he might be ordered to commit a crime and face punishment if he did not comply.”

The Maryland attorney general’s office declined to comment on the court’s decision.

Madrid’s appellate counsel, Assistant Maryland Public Defender Piedad Gomez, did not immediately respond Monday to a request for comment on the court’s ruling.

The Court of Appeals rendered its decision in Darwin Naum Monroy Madrid v. State of Maryland, No. 50, September Term 2020.


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