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What's Up in the 8th

As they say in the movies, the following is based on a true story.  Two gangs get into a fight; A fires into the crowd.  B, a member of that crowd, shoots back, but winds up killing C, also a member of the crowd that A shot into.  Can A be prosecuted for murder?

Hypothetical No. 2, also based etc.  A and B kidnap someone.  The police arrest A.  Several hours later, they find B, who has the victim tied up in a car.  B pulls away, trying to escape, and is killed by the police.  Can A be prosecuted for the policeman's killing of B? 

Welcome to the felony murder rule.

As everyone remembers from their criminal law class, the answer to both is a resounding yes, at least in the second scenario, which the 8th District dealt with last week in State v. Gibson.  Gibson had been the mastermind of a kidnapping, using "mastermind" in the loosest possible sense.  (Tip to would-be kidnappers:  if you wind up negotiating your ransom demand from $150,000 down to $25,000, that's indicative of a lack of planning.)  The felony-murder rule requires that the death be the "proximate result" of the underlying felony, which means that the conduct must have caused the result under a "but for" test, and the result must have been foreseeable.  The first part is a gimme for the State; obviously, a death wouldn't have resulted "but for" the commission of the crime in virtually any case.  As for the second part of the test, I had an appeal on this issue a couple years back, I couldn't find a single Ohio case reversing the conviction for felony murder because the death wasn't sufficiently foreseeable.  The expansive nature of the requirement is probably best indicated by the response to Gibson's argument that he should get off the hook because the police didn't follow protocol in a hostage situation, and it was that failure which resulted in the accomplice's death.  All the court did was point to the 1st District's 1999 decision in State v. Lovelace, where the defendant led the police on a high speed chase, and one of the officers ran a stop sign, striking another car and killing the driver; the fact that the officer's actions violated departmental policy and might even have been a crime didn't matter a whit.

The facts of State v. Robinson, a murder case, read like, well, the facts of just about every other murder case anymore:  a "heated altercation after a night of hanging out and drinking" at the victim's apartment led to a confrontation between two groups of people the next day, shots were fired, and someone wound up dead.  Robinson had a compelling argument that his hadn't been the fatal shot.  According to the medical examiner who performed the autopsy, the victim was shot in the face, and had stippling around the wound, indicating that the shot was fired from about three feet away.  Everybody had the victim running away from Robinson at the time he was shooting, and nobody had him within fifteen feet of the victim; thus, Robinson argues, the fatal bullet was discharged by someone in the victim's crowd, returning Robinson's fire.  The court relies on the felony murder rule in dismissing this claim:  "We find that it is foreseeable that someone in a crowd, gathered for a fight, will shoot back if first fired upon."

As might be gathered from the eighty-one pages that the opinions in Gibson and Robinson consume, there's more than the felony-murder rule in play.   Gibson's chief alternative argument is the imposition of a whopping trial tax:  he wound up with a sentence of 38 to life, while his co-defendants, who all pled, got fourteen-, eight-, and three-year sentences.  For those who are unacquainted with the criminal law, the operative phrase in that last sentence was "who all pled."  Gibson also argues misconduct by the prosecutor, who "personally denigrated defense counsel, alluded to matters not supported by the evidence, infringed on Gibson's right to remain silent, and vouched for the credibility or lack thereof regarding certain witnesses."  By this time, though, the panel is tiring in the home stretch -- we're on page 35 -- and peremptorily dismisses the claim without even telling us what the offending words were. 

Robinson's argument about prosecutorial misconduct seems to have more legs.  The State's worst witness was the medical examiner; her testimony about the stippling on the victim's face would rule out Robinson as the shooter.  So the prosecutor spent some time in closing argument trashing her, telling the jury that she wasn't a ballistics expert, castigating the defense for not asking the person who did testify as a ballistics expert about the stippling, and arguing that an FBI expert's testimony that the Bureau no longer did gunshot residue tests showed that the medical examiner's testimony about stippling was worthless.  The court finds all this "improper," but concludes that it did not deprive Robinson of a fair trial.

That's quite possible, especially given the court's holding that even if someone in the victim's crowd had fired the fatal shot, Robinson would still be on the hook under the felony murder rule; in fact, that would have been the best way to counter the claim of error.  Instead, though, the court sums up the rejection this way:

The trial court specifically instructed the jury that opening statements and closing arguments of counsel were not evidence, and that the jury was to decide the case solely on the evidence presented.  We have no basis to conclude that the jury did not follow this instruction.

The problem, of course, is that there's no way of showing a "basis to conclude that the jury did not follow this instruction."  If you're going to say that the instruction that opening and closing statements aren't evidence raises a presumption that the jury disregarded the prosecutor's misstatements of the testimony, and there's no way to overcome that presumption, you're basically allowing the prosecutor to say anything he wants.

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