Homicide question

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?

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.

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.

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.

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.

This may be of interest:

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

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.

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?

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.

Abolished:

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

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.

:smiley:

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:

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.