Wisconsin defines first degree intentional homicide as follows:
(1) Offenses.
(a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.
(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:
(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.
(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).
(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).
In order to find Jesus guilty of first degree homicide (regardless of self-defense) for each of the "victims," the jury must believe that there is no reasonable doubt that Jesus intended to kill each victim. Given that Jesus immediately returned to his apartment and contacted the police -- without putting extra bullets into the victims -- Jesus' attorney can convincingly argue that there is a reasonable doubt that Jesus intended to kill the victims. This is a viable strategy. This is where a good defense attorney could win the case. If Jesus intended to kill Jered Corn, why did he immediately summon emergency services? By limiting the charges to 1st degree homicide, the prosecution has to convince the jury that it would be unreasonable to believe that Jesus did not intend to kill the victims.
In addition, the evidence introduced by the prosecution's witnesses will have included that Jesus told the police he acted in self-defense. Accordingly, there is evidence of mitigating factors. It now becomes the prosecution's burden to prove beyond a reasonable doubt that there were no facts that would justify self-defense. This is a very heavy burden, and the only evidence that the police will have on this issue is the testimony of Jered Corn. If the jury does not believe Mr. Corn's testimony, then the prosecution will have failed in this heightened burden. If the defense got into evidence Mr. Corn's criminal record and his unruly behavior earlier in the night, then Jered's credibility will be at issue.
However, the jury will wonder why Jared did not testify.
