If Whittington dies, involuntary manslaughter seems like a slam dunk. At common law, involuntary manslaughter is a criminally negligent killing or a killing by an unlawful act. Negligence is basically a “should have known” standard. And the relevant category of unlawful act manslaughter would invoke the misdemeanor manslaughter rule, which prohibits killings while the defendant is committing a misdemeanor (such as not having the proper hunting permit). These would be easy cases.

But could it be murder? Maybe.

At common law, murder is the unlawful killing of a human being with the mental state of “malice aforethought.” Usually we think of this mental state as being intent to kill or intent to inflict great bodily injury. So, if you shoot someone because you’re trying to kill him, it’s murder. Similarly, if you shoot someone but you’re just trying to blow an arm off, it’s still murder if the victim dies. These categories likely don’t apply.

However, another mental state does qualify as murder and may fit the facts we have. It’s called “depraved heart murder.” It would require showing that Cheney exhibited a reckless indifference to an unjustifiably high risk to human life. A defendant is “reckless” when he consciously disregards a known risk. The classic example of depraved heart murder is firing a gun into a crowd. If you kill someone, you don’t get off by proving that you didn’t have the intent to kill that specific person or that you didn’t have the intent to kill anyone at all. The law says, “Listen, you yahoo, you knew that by firing into a crowd there was a real risk that you’d kill someone, but you did it anyway. You’ve shown a wanton disregard for human life, so you’re a murderer.”

If Cheney tossed back a few brews before hunting at sundown and wheeling around to fire while the setting sun was blinding him – all of which has been suggested – then his behavior may constitute depraved heart murder if Whittington dies.