In the movie, The Godfather, Marlon Brando, playing Don Vito Corleone, seeks to “persuade” a Hollywood director to cast his godson in a role as a singer in an upcoming film by making his “. . .an offer he can’t refuse”. The line is uttered in a quiet, understated manner without a hint of malice or violence. In fact, when the offer is made, one could believe that Don Corleone intends to make an offer so generous that no reasonable individual would reject it. Viewing the offer in the context of a normal business transaction would be a mistake. “Don” is an honorific title given, in the case of the Italian organized crime, to the leaders of Mafia families. One does not lightly decline an offer from a Mafia don, regardless of the offer.
Don Corleone’s consigliere visits the Hollywood director and attempts to make a generous offer. During the consiglieri’s visit, the director shows the consiglieri his prized racehorse, valued at $600,000. The director also explains to the consiglieri that the unfortunate godson has no talent and will never appear in one of his films. The next morning, when the director wakes up, he finds the head of his prized horse in the bed beside him. Don Corleone’s godson gets the role he sought.
These few scenes from this classic movie elegantly present the defense of duress (from the perspective of the director). Menace is conveyed through the death of an animal without any actual “threat” being uttered. Not only is the horse killed, but its head is severed from the body in an act of unnecessary violence and placed in the director’s bed, demonstrating that his security is inadequate when compared to the fictional Corleone crime family. At this point in the film, any reasonable person would believe that calling the police would be ineffective. The safest decision and maybe the only rational decision is to take Don Corleone’s offer; however, there is no doubt that the director’s choice to hire a second-rate singer for his production was not the result of a voluntary act on his part.
It is the lack of voluntariness in the decision-making process that gives rise to the duress defense. Since time immemorial, crime has required a voluntary action to support a finding of criminal culpability. When an individual is forced to commit criminal activity, no crime has occurred because the individual’s actions are not of his own volition. For example, where an individual purchases a controlled substance from a pharmacy because he had been threatened with severe physical violence, the defense of duress exists. The U.S. Supreme Court has also recognized duress as a defense.
Although there are slight variations from jurisdiction to jurisdiction, there are three essential elements that a defendant needs to prove:
- That he or she faces an imminent threat for death or serious bodily harm;
- That he or she is actually in fear that the threat will be carried out; and,
- There is no reasonable opportunity to go to the authorities.
Although the defense seems tailor-made for organized crime cases, it is rarely raised as a defense and is successful even less often. This lack of success may arise from a failure to adequately present the defense, a failure of a jury to understand the compunction a defendant is placed under or a combination of the two. There is also a psychological element to the defense that is frequently overlooked, and, in that regard, duress may actually blend into or become part of a separate mental disorder or insanity defense. Where one is pressed into the service of an organized crime group, however, the defense should be investigated.
In much of the world, various organized crime groups hold sway over societies and over governments. In Eastern Europe, Russian Organized Crime (ROC), a loose affiliation of a variety of criminal enterprises from the former Soviet Union, engages in a variety of white collar crimes, extortion, human trafficking, etc., and exerts tremendous influence over individuals and even governments and law enforcement officials. In Mexico, Central America, and Northern South America, drug cartels operate almost with impunity in regimes that are weak and corrupt. One thing that these organized crime groups have in common is the complete psychological control over subordinate members of the criminal enterprise. Anyone who crosses the syndicate faces death, usually in a gruesome and barbaric manner. They can expect to be tortured and simply disappear, unless a dismembered corpse is required to send a message. Even worse, if they cross the members of the organization, not only will they die, but their family members and others close to them will die, even if those individuals are completely innocent.
Organized crime operates in the United States. There are even cases of FBI agents providing information to criminal activities that resulted in the murder of informants and the cover-up of those murders. However, most American citizens, and most members of a jury, are going to be far removed from police corruption and will likely assume that anyone who is “in trouble” can go to the police for assistance. Therefore, it will be necessary to educate the jury about the influence and power of the organized crime group at issue in the case. This will include offering evidence to show the group’s presence in the United States, the violence of the group, and the complete control the group has over the defendant’s family in the defendant’s home country. Work will need to be done to document the torture and killing that the group is known for and the inability (or unwillingness) of law enforcement in the defendant’s home country to protect anyone. Some cartels, for example, post videos of tortures and executions online. Family members, members of the press, and former law enforcement officials who fled the area may be able to speak to the severity of the threat and the inability of the police to protect exposed people.
The defendant will normally be a primary witness when presenting the duress defense, but he or she should not be the only witness. Objective testimony describing the actual situation on the ground is much more persuasive than the testimony of an interested defendant. This objective testimony should come from the cross-examination of the government’s witnesses and witnesses called by the defense. The defendant’s testimony is important because it personalizes the trauma that most defendants in organized crime-related cases have experienced. Oftentimes, the trauma experienced can be horrific (seeing people murder, discovering the dismembered corpse of a family member, experiencing rape or sexual assault) and may cause the defendant to suffer from Posttraumatic Stress Disorder (PTSD). PTSD can serve as a basis for a defense based upon mental illness, but it can also support a Duress defense under appropriate circumstances. As with any expert testimony, however, defense counsel should be prepared for a Daubert challenge to any expert opinion.
The Duress defense can be a difficult defense to prove, but it may exist whenever a defendant is subject to the pervasive power of organized crime. A jury may be prone to believe that a defendant crossed the U.S. border to sell drugs to make money. When it hears, however, that the town in Central America where the defendant was raised is completely under the influence of one of the Mexican drug cartels, that he was to he either had to smuggle drugs or he and his family would die, that he could not go to local police because they were corrupt and that he could not go to U.S. authorities because he did not believe they could protect his family, it may very well decide that the defendant’s action were not voluntary and he acted under duress. In other words, the cartel “made him an offer he couldn’t refuse.”