She was doing an autopsy on a 55 year old man who had been shot 30 years ago and was paralyzed from the chest down.
The man who shot him had been charged with assault and had served his time.
The deceased had been confined to a wheel chair and had developed bed sores. He had been admitted to the hospital for treatment but left the hospital against doctors advice. Four days later he went to a clinic fro treatment and died while sitting in the waiting room.
During the autopsy Dr G found exposed bone, wet gangrene, dry gangrene and maggots in the wound.
The man also had heart trouble and the purpose of the autopsy was to determine he he died from heart trouble or the gangrene.
If he died from his heart ailment his death would be ruled natural causes, if his death was caused by the gangrene then the man who shot him 30 years earlier would be charged with murder because the gangrene was caused by the paralysis which was caused by being shot.
The result was that he had died from the gangrene and a warrant was issued for the man who had shot him 30 years earlier. It didn’t amount to anything because the man who shot him was deceased.
I get that there is no statute of limitations on murder, and I get that the shooter caused his eventual death.
However, shouldn’t the victim have some responsibility in this as well? His bedsores didn’t get in that condition overnight, it had to be going on for some time. If he choose not to take care of himself, even going against the advice of doctors, is that really the shooter’s fault?
Doesn’t matter how long it took him to die: he died because of the illegal actions of the shooter. He wouldn’t have been in the position to have to take care of his bedsores, but for the actions of the shooter. A murder charge is perfectly appropriate.
At common law, you had the “year and a day rule”, where if a death occurred more than a year and day after the blow, it was not a murder.
As it is, its been abolished in many juridistion and replaced with a plethora of laws. In some, now a remoteness test is applied, in other prosecutrial discretion holds the day. In mine, as it arose out of the same transaction and the proceedings had attained finality, there would be a bar to further prosecution.
Interesting - what if a victim with a death wish purposefully went out of his or her way to die from a wound, in order to have the shooter charged with homicide?
Let’s say Person A shoots Person B in the hand, in a way that is clearly nonlethal. Under normal conditions, no one would die from such a hand wound. But Person B then purposefully, deliberately contaminates his hand gunshot wound with a particular type of bacteria in order to cause infection, sepsis and eventual death. Is Person A now guilty of homicide?
Edit: I realize we’re surrounded by germs all the time, but for the sake of the hypothetical, let’s say the infection and disease could *only *be caused by willful contamination and could not have happened otherwise.
In the OP, the offender had previously been convicted of assault. Normally, the principles of double jeopardy work together with the concept of “lesser included offenses”, don’t they? So if one is convicted of assault and serves their time, a prosecutor can’t come around again and charge Aggravated Assault or Assault with a Deadly Weapon. Likewise, they couldn’t charge someone with possession of less than an ounce of cocaine and later charge them with possession of more than an ounce of cocaine if it is the same cocaine that the person was originally caught with.
Might the assailant get credit for “time served” if the charge were upgraded?
Let’s say the sentence for the assault was 10 years, and the usual sentence for murder was 15 years. If they arrested and tried the assailant for the murder, I wonder if they’d say “only 5 years in jail”? Since after all, if the person had died immediately, the shooter would only have been liable for 15 years in total, and it doesn’t seem fair to make them serve that PLUS the 10 years for assault.
All hypothetical of course since the shooter is also gone.
Double jeopardy protects you from a subsequent prosecution for the same crime following a conviction.
Two crimes are not “the same” for the purposes of double jeopardy analysis if each contains an element that the other does not.
So your example makes sense: most probably, the crime of “assault with a deadly weapon” contains all of the elements of “assault” plus some additional element(s). Therefore, they are the same same crime for the purposes of double jeopardy, and as you intuit, “assault” is a lesser included offense of “assault with a deadly weapon.”
However, that’s not necessarily true when you look at elements from, say, “assault with a deadly weapon,” and “murder.” It’s likely that each of those charges contains an element that the other doesn’t. If that’s the case, they are different crimes, and the double jeopardy clause does not bar a subsequent prosecution for the second after a conviction for the first.
Note that it might, or might not, bar a subsequent prosecution for murder following an acquittal for assault with a deadly weapon. That’s a fact dependent inquiry; see Ashe v. Swenson for a good discussion on the way collateral estoppel works.
Why was the original conviction for assault anyway? Assault is just the threat of physical violence, right? It seems too small a charge for someone who has not only made the threat, but fired the shot, ruined the victim’s life, and only not committed murder by mere chance. Why not attempted murder?
An under-21 drunk driver hit a state trooper in 2003, leaving her brain damaged and unconscious until her death eight years later. In the meantime, the drunk driver did time, went to college, and started a business. After the trooper died, vehicular homicide charges were bandied about, and he wound up pleading guilty so he could get a sentence of three years probation and 500 hours community service at a brain injury facility. The victim’s daughter and long term boyfriend did not want additional jail time, but the prosecutor did.
To me, the first purpose of jail is rehabilitation, the second is separation, and the third is punishment. The drunk driver went on to become a functioning member of society, so the first and second purposes were satisfied with the original sentence. I don’t think going back to the well to punish him with jail time was appropriate. Some people are just out for blood. I’m OK with the results of the plea bargain, but it still doesn’t seem right to me that people wanted him in jail.
One real problem is that we can keep bodies “alive” for such a long time with life support. It is fundamentally unfair to a person who has done his time that a victim’s family can have such control over whether he will have to go back to jail, by pulling the plug or keeping it going.
I understand that point but even with the lesser charge the victim still had to take care of his wounds.
I feel though that the victim refused to follow doctors orders should be taken into account.
It could also happen that the victim was shot while committing a crime and refuses to get treatment because they are afraid of arrest.
Yes, its the shooters fault for shooting them but where does the victims actions afterwards still to be considered.