Homicide question

[Enola_Straight]

Recently, a former police officer has died from being shot in the line of duty…forty years ago.

http://abclocal.go.com/wpvi/story?section=local&id=5589977

The perpetrator has already done the time for the shooting…can he now do more time for homicide?

[Keeve]

Wow. Very unusual but totally logical.

The article says that the perp was in jail for “aggravated assault with attempt to kill.” That’s a very important point. Without “attempt to kill” being in the original conviction, this would be nothing. But with it, it’s a whole new ball game.

Also very critical is that “The medical examiner determined that the death was a result of complications stemming from him being shot and their subsequent ruling is that his death is a homicide.” So, there you go.

One possible loophole I can think of lies in how the statute of limitations works. Is it measured from the criminal act (the shooting), or from when it was discovered that the act was one which constituted murder (now). That is relevant in many other cases, but there’s usually no statute of limitations for murder, so I’d guess it’s a slam-dunk for the prosecutor, provided that they can convince the jury that the death really was “a result of complications stemming from him being shot.” Hmmm… I suppose the defense could make a distinction between “dying from the gunshot” and “dying from complications of the gunshot”.

IANAL.

[Keeve]

If the OP was about double jeopardy, forget about it. It’s two totally distinct crimes, even though they’re from the same act. No problem charging him with the murder.

[A.R.Cane]

@Keeve

If the OP was about double jeopardy, forget about it. It’s two totally distinct crimes, even though they’re from the same act. No problem charging him with the murder.

You sure about that?
If you’re right then why couldn’t someone charged w/ first degree muder, subsequently aquitted, then be charged w/ negligent homocide.
Doesn’t sound right to me.

[Otto]

I don’t see how this could be anything but double jeopardy. He was tried and convicted of the shooting. Now they want to charge him for a death that resulted from the shooting for which he’s already been tried and convicted. But then I’m not one of them fancy-pants lawyers.

[Mr.Goob]

When I was in the military I heard of a similar story. (True or not go fish.) A guy got arrested for something or another in the civilian world and was sent to jail. When he was released the MP’s were waiting for him. The took him away and he was sent to military prision for being AWOL.

[brazil84]

This may be of interest:

http://en.wikipedia.org/wiki/Year_and_a_day_rule

[Bricker]

@A.R. Cane

You sure about that?
If you’re right then why couldn’t someone charged w/ first degree muder, subsequently aquitted, then be charged w/ negligent homocide.
Doesn’t sound right to me.

Because in your example there’s an acquittal followed by a subsequent prosecution. That doesn’t work, because an acquittal means that the jury determined the elements for the charge were not proved. The state cannot then go back and try to rely on any of those same elements to prove a different crime, when the issue was already resolved against them.

(Nit-pickers: please assume I have covered Ashe v. Swenson in the above example and said that this only applies to elements that a rational jury could have concluded, blah blah blah.)

Now we’re talking about a CONVICTION followed by a subsequent prosecution. Here, the state CAN rely on the facts it already proved once.

Now, double jeopardy does in fact prevent a second punishment for the same offense. And the question of whether two crimes are the “same offense” for purposes of double jeopardy may be resolved by means of a test called the “Blockburger test” from the seminal case US v. Blockburger. Essentially, two crimes are separate if each requires proof of an element that the other does not.

So what’s needed is to analyze the elements of the crime for which Barnes was convicted, and the elements of the crime they propose charging now, and if one includes all the elements of the other, then it’s double J.

There was a common-law rule forbidding a murder charge for injuries after a year from the crime, but I have no idea if Pennsylvania has abolished or modified that rule.

[Otto]

@Bricker

So what’s needed is to analyze the elements of the crime for which Barnes was convicted, and the elements of the crime they propose charging now, and if one includes all the elements of the other, then it’s double J.

And without looking up the specific PA statutes, I find it difficult to believe that the crime of murder doesn’t include all of the elements of a charge of aggravated assault with attempt to kill. It’s been too long since my criminal law class but isn’t there something about inchoate crimes and attempt as it relates to the felony that’s being attempted?

[Hari_Seldon]

A couple comments. I had heard of the “year and a day” rule as part of common law. The fact that GB has abolished doesn’t mean other jurisdictions have. So you have to ask about your specific jurisdiction. Second, AFAIK (and in common law) there is no statue of limitations on murder. As for the double jeopardy, you would need a lawyer (or a judge) to rule on that one. It does not sound to me that it would apply, FWIW.

OTOH, it might be very hard to assemble a case forty years later. Witnesses have died, police records and especially evidence disappear and so on. I predict that a prosecution would be very difficult.

[Gfactor]

@Bricker

There was a common-law rule forbidding a murder charge for injuries after a year from the crime, but I have no idea if Pennsylvania has abolished or modified that rule.

Abolished:

At common law, a defendant could not be prosecuted for murder unless his victim died within a year and a day of the act inflicting injury. See Commonwealth v. Lewis, 381 Mass. 411, 413-414 (1980), cert. denied sub nom. Phillips v. Massachusetts, 450 U.S. 929 (1981); 4 W. Blackstone, Commentaries *197-198, *310-311; 4 H. Broom, Commentaries on the Laws of England 235-236 (1869) (“no person shall be adjudged by any act whatever to have killed another, if that other does not die within a year and a day after the stroke received, or cause of death administered”). Otherwise, the loss of life would be attributed to natural causes rather than the distant act inflicting injury. R.M. Perkins & R.N. Boyce, Criminal Law 46 (3d ed. 1982). This requirement envisioned that the death must be shown to be “sufficiently connected with the act.” 3 W. Holdsworth, A History of English Law 315 (3d ed. 1923). See 1 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 3.12(i), at 421 (1986) ("[t]he difficulty in proving that the blow caused the death after so long an interval was obviously the basis of the rule"); 3 E. Coke, Third Institute *53 (if the person alleged to have been murdered died after a year and a day “it cannot be discerned, as the law presumes, whether he died of a stroke or poison, &c, or of a natural death; and in the case of life, the rule of law ought to be certain”).(1) In 1980, after a complete review of the history, rationale, and current status of the rule, we abolished it, deeming it “anachronistic upon a consideration of the advances of medical and related science in solving etiological problems as well as in sustaining or prolonging life in the face of trauma or disease.” Lewis, supra at 414-415.

The defendant contends that this court should replace the year and a day rule with a some other limiting rule. He contends that to have a potential prosecution hanging over his head indefinitely deprives him of due process and that, when death occurs so long after the injury, the trial would turn into a costly, time consuming, and confusing battle of the experts. In support of the need for a definite time period beyond which prosecution for murder is barred, the defendant cites our statement in Lewis that such “a task of adjustment is characteristically for the Legislature, but if not undertaken by that branch, may fall to the courts” (footnote omitted). Id. at 419. The Legislature has not acted to alter our conclusion and we have not been convinced that any new knowledge or fresh arguments require our further intervention.

Our research indicates that in no jurisdiction has a court abrogated the year and a day rule and subsequently imposed a new time limit on murder prosecutions. Eighteen other States do not follow the year and a day rule.(2) In four of these States, California, Maryland, Missouri, and Washington, it was the Legislature that replaced the year and a day rule. See Cal. Penal Code § 194 (West 1988 & Supp. 1999); Md. Ann. Code art. 27, § 415 (1996); Mo. Ann. Stat. § 565.003 (Vernon 1979 & Supp. 1999); Wash. Rev. Code Ann. § 9A.32.010 (West 1988 & Supp. 1999). Georgia, Illinois, New York, and Oregon held that failure to include the rule as part of the comprehensive criminal code adopted by the Legislatures in their States effected its abrogation. See State v. Cross, 260 Ga. 845, 845-846 (1991); People v. Carrillo, 164 Ill. 2d 144, 149-150, cert. denied, 515 U.S. 1146 (1995); People v. Brengard, 265 N.Y. 100, 107-108 (1934); State v. Hudson, 56 Or. App. 462, 465 (1982). And Connecticut determined that it is doubtful that the year and a day rule ever was a part of its common law. Valeriano v. Bronson, 209 Conn. 75, 90 (1988).

**The nine remaining jurisdictions that have abrogated the rule have done so at the initiative of the judiciary. Four of those nine, Michigan, Ohio, Pennsylvania, and Rhode Island, have expressly or impliedly stated that the rule would not be replaced by a similarly definite time period. ** See People v. Stevenson, 416 Mich. 383, 393 (1982) (“Fears about murder convictions for death 5, 10, or even 20 years after the injury are therefore unfounded where proximate cause is proven beyond a reasonable doubt. If such proof is available, the conviction is justified”); State v. Beaver, 119 Ohio App. 3d 385, 395 (1997) (“Today, the length of time between the act and the result is only one consideration in assessing the prosecution’s showing of proximate cause”); Commonwealth v. Ladd, 402 Pa. 164, 173-174 (1960) (“Society is free to prosecute murderers without a statutory limitation . . . *t is therefore not a strange idea to put no restriction of time upon the death of the victim and to require only proof of causation of conventional quality at the trial”); State v. Pine, 524 A.2d 1104, 1107 (R.I. 1987) (“We think this standard [proof beyond a reasonable doubt] is a sufficient safeguard for the criminal defendant. We do not find, therefore, that our abrogation of the year-and-a-day rule requires us to replace it with some other time period within which death must occur”). The remaining five jurisdictions that have judicially abrogated the rule, the District of Columbia, Florida, New Jersey, New Mexico, and North Carolina, have not committed themselves to a definite or indefinite time allowance. United States v. Jackson, 528 A.2d 1211, 1218 (D.C. 1987); Jones v. Dugger, 518 So. 2d 295, 298 (Fla. Dist. Ct. App. 1987); State v. Young, 77 N.J. 245, 252 (1978); State v. Gabehart, 114 N.M. 183, 186 (Ct. App. 1992); State v. Vance, 328 N.C. 613, 619-620 (1991).

As we explained in Lewis, a primary factor making the year and a day rule obsolete is the advance of medical knowledge and techniques. Lewis, supra at 414-415. Medicine can now sustain the critically afflicted for months and even years beyond what might have been imagined only decades ago. Parallel progress has also been made in the development of diagnostic skills, so that problems of medical causation are more readily resolved. Modern pathologists are able to determine the cause of death with greater accuracy than was possible in earlier times and thus causation, even in complex cases, is a less difficult problem in modern day prosecutions. Although the defendant objects to the likely necessity of reliance on expert testimony in instances where death does not closely follow the act, neither this reliance on experts nor the presence of difficult issues of causation present unfamiliar problems for modern day courts. See Jackson, supra at 1216. Accordingly, the abrogation of the rule does not make the determination of guilt so inherently unreliable or undeterminable as to deprive a defendant of procedural due process.

(Emphasis added). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/7906&invol=1

[pravnik]

Another question, that raises, though: typically, when we have cold murder cases prosecuted here, the prosecutors have to dig ut the old code books from the date of the offense and prosecute him under those. I always joke with the DA’s that they should do an NFL “throwback uniforms” thing for the trial and wear sideburns and 70’s suits with flared pants and wide lapels.

Anyway, my point being: even putting former jeopardy issues aside for a moment, is the date of offense the date of the shooting or the date or the death, and if the former, don’t they have to prosecute him under the “year and a day” law as it was then? I have to confess that I don’t know off the top of my head. Obviously, it’s not an issue one sees every day.

[Gfactor]

@pravnik

Another question, that raises, though: typically, when we have cold murder cases prosecuted here, the prosecutors have to dig ut the old code books from the date of the offense and prosecute him under those. I always joke with the DA’s that they should do an NFL “throwback uniforms” thing for the trial and wear sideburns and 70’s suits with flared pants and wide lapels.

don’t they have to prosecute him under the “year and a day” law as it was then? I have to confess that I don’t know off the top of my head. Obviously, it’s not an issue one sees every day.

I think to some extent it would depend on whether the year and a day rule was codified. If it was, for example, part of the definition of homicide, it’d be a better case for applying it to crimes committed before the amendment.

I don’t think it got codified in many places. In places where it wasn’t, I would argue that it was a rule of the law of causation–not part of the law of offenses.

Wait, there’s a case:

Accordingly, we conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.”

---

 There is, in short, nothing to indicate that the Tennessee court's abolition of the rule in petitioner's case represented an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect. Far from a marked and unpredictable departure from prior precedent, the court's decision was a routine exercise of common law decisionmaking in which the court brought the law into conformity with reason and common sense. It did so by laying to rest an archaic and outdated rule that had never been relied upon as a ground of decision in any reported Tennessee case.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-6218

The case suggests it might also depend how well-established the rule was in a given state.