The prosecution is free to charge multiple theories of the crime. In other words, they may say, “The evidence shows that Ms. Kolb intentionally killed Ms. Reynolds. But even if you don’t believe that, the evidence shows that Ms. Kolb’s actions had a ‘strong probability’ of a result of death.” If the jury believes the first premise, that’s first degree murder. If the jury believes the second premise, that’s ALSO first degree murder.
Contrast this with a case in which the prosecutors say, “The evidence shows that Ms. Smith intentionally killed Ms. Jones. But even if you don’t believe that, the evidence show that Ms. Smith acted criminally recklessly, and Ms. Jones’ death was a direct and foreseeable result.” In that case, you’d have a lesser-included coount of manslaughter as an option as well as the first scenario’s first degree murder.
Nor is it only the prosecutors. The defense has the right to say to the jury, “Ms. Smith is completely innocent. But even if you believe the prosecution’s witness, the evidence shows only criminal recklessness, not murder.” In order for the jury to get a lesser-included instruction, however, some evidence MUST show the possibility.
For example, let’s imagine a convenience store robbery in which the cashier is killed. The prosecution argues that the man seen in blurry form on the store video and caught two blocks away with the murder weapon is the killer. The defense says no, that the man on trial is not the man on the video, and he had the gun in his hand because the real robber threw it away as he was fleeing, and the unlucky defendant picked it up and was looking at it when the police surrounded him.
The jury can believe either theory. But neither the defense or the prosecution can ask for a manslaughter charge – there is simply no evidence in front of the jury that would let them conclude that the death resulted from a reckless act, not during the course of a robbery.
Now let’s imagine a case in which a cop becomes convinced his wife is having an affair. Shortly thereafter, the wife and her paramour are found shot to death in a sleazy motel. The prosecution’s theory is that the off-duty cop followed them there, burst into the room, and killed them. The defense might deny that the husband was there at all, but point out that if the prosecution’s theory is correct, maybe the cop had no intention whatsoever of drawing his gun, but upon seeing his wife in the arms of another, became so enraged that he killed them both.
That would entitle the jury to hear about manslaughter as an option, because the evidence permits that inference just as well as it permits the inference of a planned murder.
Unusually heinous crime, lots of press attention, a re-election year for a prosectuor that wants to be “tough on crime,” … these are some of the reasons that a decision may be made to seek the death penalty if the crime qualifies. Not every murder qualifies under the law. In Virginia, the death must fit certain fact patterns, like being part of a multiple murder, being a child, lying in wait, use of poison, being a law enforcement officer in the line of duty, and the like.