Well, it appears that in Massachusetts, injuries resulting in brain death do consititute murder, from a case called Commonwealth v. Golston, 373 Mass. 249, 355 N.E. 2nd 744, 1977, cert. denied, 434 U.S. 1039, 98 S.Ct. 778, 54 L.Ed.2d 788 (1978). It defines brain death as the “total and irreversible cessation of spontaneous brain functions, in which further attempts of resuscitation or continued supportive maintenance would not be successful in restoring such function.” id. So it would appear that the circumstances are sufficient to support a murder conviction even if she were kept on life support indefintely.
However, as a practical matter I can imagine that it may make it somewhat harder to get that conviction. If he is being tried while she is still on life support, there may be a fact question in front of the jury as to whether she meets the legal criteria for brain death, and everybody has seen how divisive an issue that can be. Even a very carefully selected jury may balk at convicting a man for murder when the victim’s heart is still beating somewhere. The prosecution is going to want to nail this guy hard, and they’ll only have one shot at it. It may make sense for them to wait until the person has gone through somatic death as well, and that her body might not expire until after he does. They would probably try him for murder no matter what, but would prefer to wait until after the court orders that she be removed from life support.
OK, suppose the DA tries the case before the victim’s life support is turned off, he charges the perp with murder and a lesser charge of aggravated assault and battery, or attempted murder, or some such.
The jury doesn’t buy that the victim is dead, and acquits on murder, but finds the defendant guilty of aggravated assault. The perp goes to jail. However, the next day the victim finally dies. Let’s say that the death is within whatever the limit is in this particular state. Can the DA file new murder charges, or is the perp protected by double jeopardy? After all, we have new facts…the victim wasn’t dead before, now they’re dead.
It seems as a practical matter the DA should wait to see if the victim dies/has the plug pulled, right?
First, my guess is that there is no statute of limitation on murder in Massachusetts. Second, even if the conviction has already been handed down on the lesser offense of battery or attempted murder, I still think they would be able to try the guy for murder because it is a new (and greater) crime, with new elements. The Fifth Amendment says: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Murder and battery are different offenses. Now if he was convicted of attempted murder and then tried for murder, I think any conviction on his attempted murder would have to merge into his conviction (assuming they get one) on murder. I’d be interested to see what some of the crim law junkies have to say about this though, 'cause this is just my guess.
It’s common for prosecutors to charge people with various levels of a crime. For instance, they can charge a guy with both assault and aggravated assault. The jury could find that the perp assaulted the victim, but the aggravating factor wasn’t proved, and convict on assault and acquit on aggravated assault.
Prosecutors sometimes don’t like to give the jury this option on the theory that the jury is more likely to convict on the harsher sentence if they think the perp will walk otherwise.
I served on a jury where the defendant was charged with both robbery 2 and robbery 3 and we had the option to convict him of the higher crime if we found that the value of what he stole was over a certain amount. He stole a case of pulltabs…but what was the value of the pulltabs? The payout face value, or the cost the bar paid for the tabs?
If the DA just charged with robbery 2, an element of the crime would be that the value of what he stole was over $1000. And a defense would be that the value of the cards was only $100, what the bar paid. If we on the jury found that the value of the cards was only $100, we’d find the defendant innocent and he’d walk. If there’s a lesser included charge, we can find him guilty of stealing $100, and he’d be convicted of that. However, if the DA doesn’t charge at the same time, he can’t go back and charge the perp with robbery 3 after the jury acquits him of robbery 2.
That’s not really the issue here though. If the jury acquited the subject of the OP of battery, I doubt a murder charge would be consitutional after the girl dies (they couldn’t prove elements 1, 2 and 3 the first time, they can’t have a chance to try and prove 1, 2 and 3 now just because there will also be a 4). The question here though is if they convict him for the lesser offence (1, 2 and 3) can they go back and try him for the greater offence (4).