Criminal Justice

Shoot and Kill No One, Get Charged with Murder Because Compatriot in Crime is Shot and Killed by Someone Else

"Elkhart Four" case highlights the curiosity of "felony murder" charges.

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Those who think punishments should fit crimes might question the application of "felony murder" charges against people involved in a criminal activity that results in someone shot and killed even though the person charged was neither shooter nor killer.

TinkerBells / Foter / CC BY-NC-SA

Alternet via the Guardian details a case of a dumb kid who committed a dumb crime for which a partner-in-crime was killed by the homeowner they were robbing. He got 55 years for what was essentially an act of breaking and entering.

Details:

The boy was unarmed, had pulled no trigger, killed no one. He was himself shot and injured in the incident while his friend standing beside him was also shot and killed. Yet [Blake] Layman would go on to be found guilty by a jury of his peers and sentenced to 55 years in a maximum-security prison for a shooting that he did not carry out.

How Blake Layman got to be in the Kafkaesque position in which he now finds himself – facing the prospect of spending most of the rest of his life in a prison cell for a murder that he did not commit – is the subject on Thursday of a special hearing of the Indiana supreme court, the state's highest judicial panel. How the judges respond to the case of what has become known as the "Elkhart Four" could have implications for the application of so-called "felony murder" laws in Indiana and states across the union.

Layman and four buddies broke-and-entered Rodney Scott's house, and he opened fire on them, killing one of them, Danzele Johnson, 21. The others were arrested, and Layman:

 recalls that a couple of hours after his arrest, he was told by officials at the county jail in his home town of that he was being charged with "felony murder". "I was shellshocked," he told the Guardian. "Felony murder? That's the first I'd heard of it. How could it be murder when I didn't kill anyone?"…

…..The judges [in this week's hearing] have asked lawyers for Layman and for the prosecution to address that specific question: is it consistent with Indiana law that he and his friends who were all unarmed, who fired not a single shot, and who in fact were themselves fired upon, one fatally, by a third party – the homeowner Rodney Scott – could be put away for decades for murder?

The conundrum is not an arcane one. Some 46 states in the union have some form of felony murder rule on their statute books. Of those, 11 states unambiguously allow for individuals who commit a felony that ends in a death to be charged with murder even when they were the victims, rather than the agents, of the killing.

In Indiana the wording of the felony murder law is more nuanced than those of the other 11 states. It says that a "person who kills another human being while committing or attempting to commit … burglary … commits murder, a felony."

Scott was legally justified in shooting Johnson; just because he can't be justly charged with murder doesn't mean the state should be able to root around to find someone to pin it on, even if that someone was committing another, lesser, crime for which they could be justly punished.

It's a similar principal behind cops in New York City charging an unarmed man who they shot at with assault for the bullet wounds that the cops inflicted on innocent bystanders. 

Elizabeth Nolan Brown last summer blogged a roundup of cases of "felony murder" and similar charges causing people who did not murder anyone to be nonetheless charged with murder.

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  1. Of those, 11 states unambiguously allow for individuals who commit a felony that ends in a death to be charged with murder even when they were the victims, rather than the agents, of the killing.

    If they were victims of the killing, they’re dead… so how are they charged with murder?

    1. Hal tatakelemu al arabiyya?

      Curious.

      1. WHO LET TULPA OUT OF HIS CAGE??? NOW HE’S SHITTING ALL OVER EVERYTHING AGAIN.

        Was it nutrasweet? I bet it was nutrasweet.

    2. Suicide is illegal, right?

  2. Eh, there’s a shitload of issues with governmental authority that I would put ahead of this.

    If you don’t want to get charged with felony murder, don’t gather in a group to commit felonies against innocent people.

    Play stupid games, win stupid prizes.

    1. That sounds shockingly similar to the “if you don’t want to get shot by cops, don’t break the law!” rhetoric, no?

    2. I agree. The whole idea is that people getting killed is a natural and foreseeable consequence of committing felonies (well, real ones), so you better know you’ll be responsible if you join in on that.

    3. If you don’t want to get charged with felony murder, don’t gather in a group to commit felonies against innocent people.

      Justice is justice. The relative injustice of other things doesn’t detract from the injustice here. It is unjust to charge him with anything other burglary or accessory to something other than murder or any other crime he objectively did not commit.

      1. Agreed. This is really stupid. He did not shoot his accomplice. Guilty of a felony? Yes. Murder? No. Next, please.

  3. Snarky title aside, when your participation in committing a crime leads to somebody’s death, then yes, I’d say you’re quite obviously responsible for that death. And given that responsibility, I fail to see how being held legally responsible for it amounts to A Great Injustice.

    1. when your participation in committing a crime leads to somebody’s death, then yes, I’d say you’re quite obviously responsible for that death

      Layman’s participation in the crime did not lead to Johnson’s death. Johnson’s participation in the crime led to Johnson’s death.

      There may be cases where the accused played a particular role that we can view as giving him/her responsibility for the death. For instance, a someone who recruits disposable thugs for a criminal enterprise. Layman does not fit that description.

      1. The perpetration of the crime lead to Johnson’s death. Layman was clearly one of the co-perps. Same concept as trying the driver of the escape vehicle for the bank robbery, despite the fact that sitting in your car waiting for your friends is not in and of itself considered a crime. And while we’re at it, if someone is killed during the commission of that bank robbery, the getaway driver is just as legally responsible as the guy who pulled the trigger.

        1. And I think there’s a difference between an innocent bystander dying in the perpetration of a crime and one of the accomplices dying in the commission of the crime. If you help carry out a crime and some innocent person dies, it’s reasonable that you at least be charged with manslaughter.

          If your accomplice dies, though, he chose to be there and his death was his punishment.

          1. If your accomplice dies, though, he chose to be there and his death was his punishment.

            And you chose to be a participant in the crime that had the foreseeable possible consequence of his death. Why shouldn’t you be held responsible when the foreseeable consequence materializes?

            1. foreseeable possible consequence of his death

              Every part of being alive has the foreseeable possible consequence of death. If I double park and my friend gets out of the car and gets hit by a bus, am I responsible for his death? I’m just not sure where this formulation would end.

            2. Why shouldn’t you be held responsible when the foreseeable consequence materializes?

              Because your accomplice chose to be a part of an enterprise that involved a forseeable chance of him dying. Same reason that if the pretty girl dies in a knife throwing accident at the magic show, the magician doesn’t get charged with murder, but if i shank somebody with a knife, I do get charged.

              Consent to the risk changes everything.

              1. Your anaology falls on it’s face. Getting charged with murder for the death of a criminal colleague is not the same thing a magician’s assistant agreeing to accept liability. That analogy would work if you charged the other magician assistants with murder in the event of her death.

          2. Exactly!

        2. The perpetration of the crime lead to Johnson’s death. Layman was clearly one of the co-perps.

          You have again failed to demonstrate how Layman’s participation caused Johnson’s death. You’re just repeating that they both participated at the same time as if it’s supposed to prove anything.

          Same concept as trying the driver of the escape vehicle for the bank robbery, despite the fact that sitting in your car waiting for your friends is not in and of itself considered a crime.

          It’s not the same concept at all. The driver is charged for conspiracy to commit the robbery because of his/her intent for the robbery to occur. Layman did not intend for Johnson to die.

          1. You have again failed to demonstrate how Layman’s participation caused Johnson’s death.

            And I never attempted to do so. Johnson may have just as well been killed without Layman’s participation. But that’s missing the point. Banks get robbed all the time without my participation. However, that’s hardly an exculpatory fact should I decide to participate in a bank robbery.

            The point is, Layman voluntarily participated in a criminal enterprise that resulted in his partner’s death. You’d have a hard time convincing me that somebody getting killed is an unforeseeable consequence of initiating a home invasion. Whether or not Layman wanted that outcome, it’s certainly a risk, with a relatively good chance of materializing, he voluntarily undertook.

            The driver is charged for conspiracy to commit the robbery because of his/her intent for the robbery to occur.

            Are you saying Layman didn’t intend to commit a robbery?

            The point is this: Layman chose to participate in a criminal enterprise that involved a high risk of somebody getting injured or killed. Therefore he was responsible for the outcomes of that enterprise. The fact that the enterprise didn’t have the outcome Layman desired isn’t germane.

            If you run a red light with no consequences, you get a ticket. If you accidentally run over a kid running a red light, you get charged with negligent homicide or some form of manslaughter, despite the fact you didn’t intend to kill a kid by running a red light.

            1. Are you saying Layman didn’t intend to commit a robbery?

              He didn’t intend to commit a murder.

              Crim Law 101: you generally need actus reus and mens rea to be convicted of a crime. Actus reus – the actions required to commit the crime (satisfied by Layman). Mens rea – the intent to commit the crime (not satisfied).

              Therefore he was responsible for the outcomes of that enterprise.

              Not how it works for any other crime. If I’m a coke mule for a massive drug enterprise, I’m not liable when another coke mule that i’ve never met and never interacted with gets shanked by my boss for skimming off the top.

              f you accidentally run over a kid running a red light, you get charged with negligent homicide or some form of manslaughter, despite the fact you didn’t intend to kill a kid by running a red light.

              But Layman didn’t kill anybody. The homeowner did.

              1. Exactly. Murder is an intentional act. If you were conducting some other business?for instance, doing work on that property?and the resident, in a mistaken but justifiable (I’m sure you can think up circumstances) belief that you were invading criminals, shot one of you dead, would the boss be a murderer?

                If you’re committing a crime, you intend that crime, not some other. It’d be a different story if it were some Machiavellian scheme by one burglar to get the other one killed.

            2. If you accidentally run over a kid running a red light, you get charged with negligent homicide or some form of manslaughter, despite the fact you didn’t intend to kill a kid by running a red light.

              The difference here is that you do get charged with negligent homicide instead of the car next to you who didn’t hit the kid getting charged.

    2. Snarky title aside, when your participation in committing a crime leads to somebody’s death, then yes, I’d say you’re quite obviously responsible for that death.

      Disagree. I think if they’d broken into the house and one of his accomplices had accidentally killed the homeowner, then there might be something to charging all of them with murder.

      However, his accomplice was there of his own free will. You shouldn’t charge a criminal with murder because his accomplice is shot to death by a third party.

      1. Did Layman have any responsibility for creating the circumstances that led to Johnson’s death?

        1. Exactly, but I don’t think you’re taking it far enough. If Layman and Johnson’s parents should’ve done a better job raising their kids and this never would’ve happened. Throw the book at them too!

          1. Bah, edit one thing, create a mismatched sentence in another point. Ignore the word “if” in the second sentence.

  4. Snarky title aside, when your participation in committing a crime leads to somebody’s death, then yes, I’d say you’re quite obviously responsible for that death.

    Why does it make any difference if you’re committing a crime?

    If the death occurs as a result of noncriminal activity how does that prevent my responsibility?

    1. Tulpa, why do you attempt to sneak back into a place, where you are hated, under another name when you’re figured out in just a few minutes?

      Why don’t you use your real handle and take the lumps you deserve for being a piece of shit liar? Or better yet, why don’t you just leave for good?

      A shrink would have a field day with you.

      1. If using a name different from your real name constitutes “sneaking”, then you are sneaking just as much as I. Unless your real name is the same as a Fountainhead character.

        1. Oh man I love it when you go down this particularly retarded road. That it screams that you literally have no comprehension of reputation is also particularly delicious. I don’t think I can count the number of things wrong with you, Tulpa. I’d need some kind of magical counting machine.

        2. I’m actually quite proud of my online persona. But then again, I don’t attempt to deceive the people I’m debating with. I guess I can see how a shitbag cunt, like yourself, who uses deception to get attention might need to sleaze around as someone unknown to avoid getting called the cunt that he is.

          Cunt!

          1. And it’s Atlas Shrugged, asshole!

          2. I understand that it’s hard to deploy ad hominems when you don’t know who is making the argument. Apologies for the inconvenience.

            1. We always know, Tulpa. Because you’re a moron. And I see you still don’t understand what an insult is. Why is that? Oh, right, because you’re a moron.

              1. If you always know, then FDA’s complaints above are invalid.

              2. Tulpa must live a sad life. He comes to a place where he is hated by everyone and pretends to be other people. All so he can at least get a couple posts in before his transparent tulpaness shines through and he is called on who he really is.

                What a fucked up loser.

                1. Pour yourself a drink, Mr. Fission, and ignore his bull. I’m drinking some bourbon (NEAT) as we speak.

                  1. I’m drinking a beer (leftover Bush from the beer can chicken I made earlier this week) and watching Office Space… and it’s Thursday. Life is good.

                    1. Ah, beer can chicken. Delicious, I need to make some again, and the weather in CA is perfect for grilling year round.

                    2. Ah, beer can chicken. Delicious, I need to make some again, and the weather in CA is perfect for grilling year round.

                      I had to make shift do it in the oven because its about 10*F here. Still turned out pretty good though.

                2. Clearly you all enjoy engaging in baseless speculations about my life, so you really should be more appreciative of my giving you the opportunity.

                  1. Not baseless. There are a huge amount of…. social cues…. that are impossible to miss. And they all point to the same thing.

                    1. Then y’all need your social cue receptors checked, because the vast majority of the speculations are completely wrong.

                3. I don’t “pretend to be other people”. You’re describing identity theft, which I have never done.

                  The fact that you guys consistently conflate identity theft and handle-changing is what keeps me from taking seriously your criticisms of my online behavior and astoundingly errant attempts at speculation about my offline life.

                  1. I don’t “pretend to be other people”. You’re describing identity theft, which I have never done.

                    Bahahaha, so I guess my friend’s 4 year old daughter is an identity thief when she pretends to be Cinderella.

                    Come on, we take Tony and the Assplug more seriously than you… troll better!

                  2. You change your handle in hopes that people will think you are a different person and not Tulpa. It is sad. Especially because it is easy to spot. Yet you keep doing it.

            2. ad hominem
              adjective ad ho?mi?nem \(?)ad-?h?-m?-?nem, -n?m\
              Definition of AD HOMINEM

              1: appealing to feelings or prejudices rather than intellect
              2: marked by or being an attack on an opponent’s character rather than by an answer to the contentions made

              insult
              verb in?sult \in-?s?lt\
              : to do or say something that is offensive to (someone) : to do or say something that shows a lack of respect for (someone)

              Tulpa, I’m not calling you names to discredit any argument you’re making. I’m calling you names because you’re a horrible person.

              1. Even if I am a horrible person, basing your argument on that is an ad hominem.

                1. I’m not making an argument. I’m insulting you. You are a cunt.

                  1. Tulpa’s here. Where’s JackandAss?

                    It’s been too long since I had a chance to slap joe around.

        3. Tulpa, you asshat. He said ‘real handle’ not ‘real name’. You lie with every keystroke. Choose a name, defend your position, and take the lumps/accolades that result. Pussy.

          1. I didn’t say he said “real name”. Jumping to conclusions on your part does not constitute a lie on my part.

            1. If using a name different from your real name constitutes “sneaking”, then you are sneaking just as much as I.

              Yes, you did.

              You used to be better at this.

        4. You’re like a cat in heat. Pathetic.

    2. If the death occurs as a result of noncriminal activity how does that prevent my responsibility?

      It doesn’t. And we have entire classes of crimes such as negligent homicide and involuntary manslaughter that hold individuals responsible for actions, which are not in and of themselves criminal, that can be demonstrated to have the foreseeable possible consequence of somebody’s death.

      Somebody getting killed is very much a foreseeable possible consequence of committing a home invasion. And if that consequence materializes, expect to be held responsible.

      1. Congratulations for turning criminal law completely on its head. A death occurring during the course of a felony is not automatically foreseeable simply because of the temporal connection. If during the course of the burglary a Martian spaceship came down and killed the accomplice with a death ray, is that also foreseeable in your mind?

        Generally speaking, the death must have been in furtherance of the underlying felony for it to be felony murder, which is why many states do not include deaths caused by third parties.

        It is also helpful to look at the felony itself. Burglary, unlike say robbery, is generally not a crime of violence; it involves sneaking into an empty building or a house where people are sleeping, and violence is usually avoided. To borrow a concept from tort law, the intervening superseding acts of the homeowner should not trigger felony murder for the accomplices.

  5. I don’t think this is a just law and it should be abolished.

    But on the other hand, it couldn’t have happened to a nicer guy. Guy’s a no shit criminal, initiating force upon another. Fuck him!

    1. Francisco d’Anconia|2.26.15 @ 8:16PM|#
      “I don’t think this is a just law and it should be abolished.
      But on the other hand, it couldn’t have happened to a nicer guy. Guy’s a no shit criminal, initiating force upon another. Fuck him!”

      Yeah, he’s a thug and thugs should get punished, but there is the concept of the punishment bearing some relation to the seriousness of the crime.
      Try the twerp for breaking and entering or whatever he did; he’s already learned it can lead to death.

      1. I don’t disagree with anything you said Sevo. Right is right. But I really don’t feel sorry for him. I guess you could say that his sentence should be reduced to reflect his crime and it would be karma if he gets fucked in the ass in prison. Unless, of course, he enjoys that. NTTAWWT

  6. If you go along with your friend voluntarily to trespass, then you should not be held accountable for his death because you did not force him. He decided himself, and he is the one who is responsible for this own death.

    Individuals are only responsible for their actions, not someone else’s. His own liability would be the breaking and entering, not murder. Think liability not of what the courts or positive law tell you but of it as vectors of force and tracing the path back to its origin.

    1. “Individuals are only responsible for their actions…

      Broadly speaking, that’s valid, but, in the context of a joint criminal enterprise, I don’t think that that statement fairly or logically applies. The culprits here conspired to commit multiple felonies. In a civil context, actors whose conduct combines to inflict an injury upon a party can both be held jointly and severally liable. Why should criminals who act in concert not similarly be held responsible when the victim and/or a culprit is harmed? As another poster noted, bad things inevitably happen when people decide to undertake criminal acts. If a criminal is foolish enough to join a criminal enterprise that results in the death of one of his co-conspirators at the hands of the would-be victim, I am not going to lament his being convicted of felony murder.

      This topic has come up before amongst jurors who can’t reconcile themselves to convicting a getaway driver in an armed robbery that leads to the shooting death of a teller or a store clerk. The jurors’ flawed thinking being that the driver was “only” driving. I support the concept of felony murder because, even though the driver didn’t pull the trigger, he still was a willing participant in the enterprise, lent material support to its accomplishment and facilitated its execution. So, the concept of felony murder doesn’t even make my top ten list of examples of prosecutorial overreach or procedural inequity. It’s a tool that allows prosecutorial flexibility.

      1. Yeah, I agree. This is probably not the best way to handle this but if I’m making a list of my top 100 things to fix with criminal justice system I don’t know if this makes the list.

      2. You’re speaking wholly in terms of current legal positivism, whether something is material or not as determined by current US law jurisprudence, but as I mentioned it’s not objective. It’s all based on decisions other people make about your actions, not the objective liability as determined by what damage of an individual’s acts results in. As I said, the vectors of force/actions are all that you need to look at.

        That’s why I think David Friedman’s proposal of treating all criminal law as tort, changing criminal cases from ” vs defendant” to “victim or victim’s representative (e.g. homeowner) vs defendant”, removing legal positivism out of the picture.

        That was the principle behind the weregild. You shouldn’t use or need to create laws for felony or muder only to have them applied arbirtrarily.

        In your example of the accomplice driver, first it’s not equivalent since the robber was the perpetrator in a killing. In fact it would be quite the opposite. The accurate analogy is the robber BEING killed by the store owner. And because he was killed, at least partial restitution was already made by his death, which is NOT the result of any force by the accomplice.

        Again, you need to look at forces and any general principle of liability i.e. one that is algorithmic, not dependent on laws posited into existence, must then be derived solely from looking at those forces, tracing its path back to initiator.

      3. This topic has come up before amongst jurors who can’t reconcile themselves to convicting a getaway driver in an armed robbery that leads to the shooting death of a teller or a store clerk.

        Except that in this case the perps were unarmed and the victim did the killing.

        Analogy fail.

      4. You say it’s flawed thinking, I say it’s correct thinking.

      5. Because co-conspirators are generally only liable for crimes committed by a fellow conspirator in furtherance of the underlying criminal agreement. Since this killing was neither committed by a co-conspirator nor done in furtherance of the conspiracy, the others shouldn’t be liable.

  7. This law is terrible and I don’t know why people up above seem to be defending this just because the guy was a scumbag criminal.

    This seems like a clear instance of over-criminalization. His only crime was breaking and entering and possibly attempted burglary. His accomplice was there of his own free will and this guy is not responsible because his accomplice was killed.

    1. You break into my house and you’ll be begging for 55 years.

      1. And if you’d shot him as he was breaking into your house, you’re well within your rights.

        After someone is in custody, however, you can’t just send them to prison for any length of time you want. Why not just make every property crime a life sentence? That seems to be essentially what you’re arguing in favor of.

        1. And what do you think those 5 assholes would have done to Scott if he wasn’t armed? If they were not being pieces of shit nobody would have died. There is a big difference in breaking into peoples homes when they are home then stealing car radios or shop lifting. Your putting everyones life in danger.

          1. 5 guys break into an occupied home. They know whats up. Ill sleep fine.

            1. 5 guys break into an occupied home. They know whats up. Ill sleep fine.

              If you click through to the original article, you’ll see that they claim to have targeted the house under the impression that it was unoccupied. Now, to an extent, of course they would say that; however, most burglars try to go after unoccupied homes, so there’s a good chance it’s the truth.

              1. The fact that they were unarmed leads me to believe them.

          2. And what do you think those 5 assholes would have done to Scott if he wasn’t armed?

            Which is why Scott was within his rights to shoot at them. You’re mistaking self-defense of life and property with punishments after someone is already in custody. Scott had the right to shoot them when it was very possible they would have done him harm, but if Scott were to walk up to this guy and shoot him in the head today, he’d be guilty of murder since it is no longer self-defense.

            Similarly, throwing someone in prison for 55 years for the crime of breaking and entering is not a punishment that fits this crime.

            1. Its not a great law but not high on my list of nut punches I get here on a daily basis.

            2. I think the important thing is to look at the crime that the conspirator helped cause.

              In the case of a bank robbery, all conspirators help conduct a bank robbery. If a teller is shot, they all helped a murder. If a cop or armed citizen trying to stop them accidently hit a civilian, the act of wrongful death/manslaughter falls on the conspirators, since they caused the situation where the person was killed.

              But in this case, other than burglary/trespass, what was the crime? The dead guy wasn’t murdered- he was killed in self defense or defense of property. There is no crime on the part of the homeowner that needs to be shifted to the perpetrators because no murder/manslaughter/wrongful death was committed. We are basically escalating a non-crime (self defense) to murder because…uh…because something.

              1. Thank you, Overt. I was going to make this precise point. IANAL, but according to the law, the dead guy was not murdered (a murder being an “unlawful killing”). I don’t think the killing of the other burglar was a crime at all. So throw the book at the surviving burglar, but charging him with murder is too much.

              2. So what? The attendant who pumped gas into the getaway car helped “cause” it too. Unless a specific conspirator intended that death, it’s not a murder, and it’s not a murder by other conspirators who didn’t intend that death. You can’t just conclude that someone participating in a crime (or maybe even other wrongful act) bears responsibility for every knock-on result unless you would also conclude that of someone participating in a non-crime.

          3. And what do you think those 5 assholes would have done to Scott if he wasn’t armed? If they were not being pieces of shit nobody would have died. There is a big difference in breaking into peoples homes when they are home then stealing car radios or shop lifting. Your putting everyones life in danger.

            Yeah, and that should be reflected in the burglary and other crimes they are charged with, along with the sentencing.

            Felony murder rule for an innocent, sure! Felony murder rule for an accomplice leaves a bitter taste in my mouth.

        2. Why not just make every property crime a life sentence?

          Is branding or amputation a life sentence?

          If so, I’m in favor of it.

  8. How many B&Es; he gonna commit in the next 55 years? One less punk the rest of us have to worry about. Stay out of other people shit and you won’t have to worry about it.

    1. And get off my lawn!!

      1. Fuckin A get off my lawn:)

  9. Cases like this aren’t particularly good arguments against the felony murder rule, kind of like cases where a guy rapes and murders a child aren’t particularly good for arguing against the death penalty.

    You either need a sympathetic defendant or a case where the rule has to really stretch to be applied, like the one where some dude was charged with felony murder because a cop 50 miles away was killed in a car accident while he was responding to some dude’s car chase.

    1. Cases like this aren’t particularly good arguments against the felony murder rule, kind of like cases where a guy rapes and murders a child aren’t particularly good for arguing against the death penalty.

      Except that in this case the guy was unarmed and hurt no one, while in your example…

      Analogy fail.

      1. And the death penalty is a hell of a lot of a steeper sentence than 55 years. The situations don’t have to be identical in every aspect for it to be an analogy; that’s why it’s called an analogy.

        Point is that bad defendants make poor poster children for a just cause.

        1. Only if you are a slave to the feelz.

  10. I would say pass a special statute to enhance the sentence for burglary, robbery, etc., if one of your companions in crime gets killed. Not as much of a sentencing enhancer as if you killed an innocent person.

    Suppose he tried to rob a store, brought a gun, and while he was waving the gun around he killed his accomplice. That would certainly be a crime, and one could argue this case is similar.

    1. Except for the bit where he had a gun. Or waved it around. Or that he killed someone.

      But yeah, except for those bits it’s quite a similar case!

    2. I don’t like the idea of punishing people for things they did not choose to do. Defeats the purpose, no?

      1. That all depends on the purpose.

        1. The three legitimate purposes of criminal punishment are deterrence, retribution, and rehabilitation. (This is excluding the direct consequences of the chosen punishment, i.e. restitution of stolen money via fines, making it impossible to commit crimes by imprisonment or execution, etc)

          None of the three are advanced by punishing an unchosen act.

          1. If you allow for the “legitimate” cause of deterrence, then you don’t really need the other two, or individual rights. Anything can be deterred with enough violence.

            1. Anything can be deterred with enough violence.

              Only if the person knows what’s coming to them. In this case the guy didn’t know he could be charged for his friend’s death. No deterrence there.

              1. I was speaking more broadly. Zimbabwe for example did a great job of deterring property ownership and sound capital management by murdering or driving out anybody who owned property and managed it well.

                The violence employed in this case was justified but has little to do with the criminal justice system holistically.

                1. Scratch that second sentence, it makes no sense in context and doesn’t convey what I meant anyway.

              2. True. And even someone with thorough knowledge of felony murder laws can’t always foresee when it will come into play.

                For example, the guy who set his empty house on fire and wound up charged for felony murder because a responding cop crashed his car into a telephone pole a mile away.

      2. I don’t like the idea of punishing people for things they did not choose to do.

        So it would be fair to punish you for attempting to deceive those you were debating? What say, Rollo?

  11. It’s a basic failure of proportionality. The severe punishment does not fit the questionable crime. Now, if he had colluded with the shooter to arrange the death of his unfortunate partner…

    1. “And put one in me, to make it look good.”

  12. Penalties like this have an emotional appeal, since the guy was committing a crime and obviously not a model citizen. But they don’t work logically to me.

    Did the guy kill his friend?

    No.

    So he should not be held responsible.

    One might argue that such laws have a deterring effect, but that’s bunk since most people don’t even know they exist. I mean, this guy didn’t.

    As far as someone being charged with a crime for the cops’ bad aim, that just encourages cops to shoot wildly since they know they won’t be held responsible for not caring what is beyond their target.

    1. +1 split second decision

    2. This.

      His friend made the decision to be part of the burglary.

      The homeowner made the decision to open fire.

      Making a third party responsible for both of those decisions seems far-fetched at best.

      1. Third party in this case is not exactly some random innocent bystander.

        1. Third party was unarmed and hurt no one. Why should he be held responsible for his cohort’s death?

          1. Hurt no one? So breaking into peoples homes is fine? You make it sound like the dude was sitting at home minding his own business when the police came and arrrested him because his friend got shot. I’m not saying that he should be charged with murder but lets not act like hes just innocent kid in the wrong place at the wrong time.

            1. 5 pu ks breaking into an occupied home. They should be going away for a long long time just for that. Maybe not 55 years. But between that a slap on the wrist not sure I’m picking the slap on the wrist.

            2. I never said he was innocent. Just that he shouldn’t be held responsible for the victim’s killing of his buddy. He didn’t harm his friend, nor did he attack the victim. Should he be held accountable for the B&E? Obviously yes. Homicide? No. He didn’t kill anyone.

              1. As I noted above, the big problem is that NO WRONGFUL HOMICIDE OCCURRED. Someone died in a self defense shooting. We wouldn’t send the homeowner away for that because it isn’t a crime. We are basically holding this conspirator responsible for a self defense shooting and calling it a crime.

                I have no problems holding criminals accountable when actions cause a wrongful death from a third party. A crime in that case was committed (say, property damage or death in a car chase). But a non-crime (self defense) shouldn’t suddenly become a crime just because another person happened to be there to take the wrap.

            3. Don’t be that guy. You know full well what he meant by “hurt”; it’s completely conventional and appropriate usage.

        2. Innocent in the general case? No. No, he is not an innocent.

          Innocent in the specific case? Yes. Yes, he bears no culpability for the decisions of others.

          I’m down with punishing people for the crimes they actually/I commit.

      2. Um, in this case the third party chose to be a participant as well. It’s not exactly like he was an innocent bystander. Given that the third party was a co-equal partner in initiating the circumstances which lead to his parter’s death, I fail to see why he shouldn’t be held responsible for their outcome.

        1. I’m jaywalking and a driver has to swerve to avoid me and hits an old man standing on a street corner…

          Did I kill the old man?

          1. That example is a little dicier than this one, I think. Was the driver able to stop in time rather than swerving? Was he speeding? How far were you from a marked crosswalk or intersection?

            There’s a lot of variables, there.

            1. Eh, I’m just spitballing ridiculous scenarios wherever TBCM shows up. He seems to think this is a sound and veritably self-evident legal principle but I don’t really see what the limits would be.

              1. And they are indeed ridiculous. For one, under a number of circumstances, you could justifiably be held legally responsible for the old man’s death.

                Secondly, jaywalking, unlike home invasion, is not an act of aggression against another party with a high probability of becoming violent.

                1. Pedestrian-vehicle crashes are a major problem in the United States. In 2003, the National Highway Traffic Safety Administration reported that approximately 4,700 pedestrians were killed and another 70,000 injured due to pedestrian-vehicle crashes. 1 On average, a pedestrian is killed in a traffic collision every 113 minutes and injured every eight minutes. 2 Although only 8.6 percent of all trips are made on foot, 11.4 percent of all traffic deaths are pedestrians.

                  I’d say getting hit by a car is violent.

                2. Secondly, jaywalking, unlike home invasion, is not an act of aggression against another party with a high probability of becoming violent.

                  2 guys break into a skyscraper construction site and climb to the top of the crane.(They’re B&E at this point) They’re both climbing onto the crane when the construction foreman tries to grab one of them and call the police. The climber slips and falls to his death. Is the other climber liable? They’re aggressing against another party, and there is a high probability of somebody slipping and falling to their death.

          2. To make it a better analogy, the old man who was hit would’ve been jaywalking too.

  13. Oh my god I love when Tulpa resorts to this particular whine. It always means he’s about to abandon his current handle and go away for a while.

    As for felony murder – it’s hard to work up much sympathy for lowlife burglar scum, but this is clearly unjust.

    1. it’s hard to work up much sympathy for lowlife burglar scum

      Yes. Emotionally it works.

      but this is clearly unjust.

      Logically it does not.

    2. WW upthread already said it and I agree. It’s unjust but there will have to be a more sympathetic guilty party than a B&E dummy.

    3. In the land of the blind, the one eyed man can walk around naked and unshaven.

  14. Somewhat OT:

    Senior citizen couple terrorized by Nevada Highway Patrol

    A Washington couple says they were falsely arrested by the Nevada Highway Patrol for stealing a collector car they actually owned. The highway patrol admitted two errors that led to Robin and Beverly Bruins being removed from their car at gunpoint. And, now, the highway patrol is facing a lawsuit.

    1. They should be grateful they weren’t charged in Johnson’s death.

      The system works!

  15. Has anybody defending this sentence bothered to think through the implications of this?

    If the difference between doing 5 years for B&E and 55 for murder is entirely dependent upon whether or not the guy you burglarize is defending himself, it’s going to create a political cause against self-defense. Why should innocent little Johnny Robber get extra time just because the mean old law-abiding citizen shot his friend?

    Lest you think it crazy, people have been sued because they failed to safety-proof their entranceways (designated and otherwise) for the benefit of robbers.

  16. applying it to death of an accomplice doesn’t seem to fit the spirit of the law. it was meant to apply to death of a felony victim. I don’t think there was a murder at all in this case.

    1. He could claim that the whole thing was an abortion.

    2. In this case it doesn’t seem to fit the letter of the law either”

      FTA:

      The conundrum is not an arcane one. Some 46 states in the union have some form of felony murder rule on their statute books. Of those, 11 states unambiguously allow for individuals who commit a felony that ends in a death to be charged with murder even when they were the victims, rather than the agents, of the killing.

      In Indiana the wording of the felony murder law is more nuanced than those of the other 11 states. It says that a “person who kills another human being while committing or attempting to commit ? burglary ? commits murder, a felony.”

      1. agreed. the Indiana law seems designed to eliminate defenses like accidental or self defense for the actual killer. accomplices are left out entirely.

        who was murdered in this justifiable homicide?

  17. Gasp! Felony murder is a thing?

    I only heard about that in underfuckinggrad.

    1. You know, you’re kind of an incessant twat to begin with, but that doesn’t mean you have to go full Bo.

    2. Acosmist Esq.

    3. You must be great at parties.

  18. Alternet via the Guardian details a case of a dumb kid who committed a dumb crime for which a partner-in-crime was killed by the homeowner they were robbing. He got 55 years for what was essentially an act of breaking and entering.

    By the way, these laws were generally passed for the benefit of the police. They’re designed to absolve police for horrific or pure boneheaded behavior during the apprehension of the criminals. If the police:

    o Kill someone accidentally.
    o Crash their car.
    o Run an innocent bystander over.

    Accountability is removed from the police and placed on the heads of the involved criminals.

    Because higher standards.

  19. 55 years seems a little excessive given the facts of this particular case, but I will shed no tears on my way to my nightly glass of wine. People who break into homes are dirtbags. Play stupid games, win stupid prizes.

    It’s interesting to read the comments on Alternet. 90% of them are aghast at this sentence, and a good 25% of them think that the homeowner who shot the burglars is a murderer.

    1. If certain other facts are known to them, maybe they have good reason to think the homeowner was a murderer. Don’t you read detective novels?

  20. At best this sort of thing (“felony murder”) is just logically inconsistent. At worst it is intellectually dishonest and absolutely insane.

    Either, simply being a participant (P) in activity X and someone dies (V), but P‘s only involvement in V‘s death is simple participation in X, confers criminal culpability as if P directly and intentionally killed V regardless of what X is; or it does not. The nature of X is irrelevant. There is absolutely no way to argue, with any degree of logical consistency or intellectual honesty, otherwise.

    In the case specified in the article, it is the homeowner that is ultimately responsible for the intruder’s death. He is the one that fired the fatal shot. However, it is not criminal responsibility as it was justifiable self-defense. (Though strict Rothbardians would argue “proportionality”…) There is no just, rational, or proper reason to charge the other perpetrators of the crime of burglary for the death of their compatriot.

  21. Since the argument is that by committing a crime it was foreseeable that one of them would get killed therefore murder, why draw the line here?

    If the kids were honor students and their trespass had been crossing a railroad bridge for the purpose of taking a shortcut rather than entering a home for committing a burglary would you feel differently? The law says that if someone dies as the result of a crime, all of the participants are guilty of murder. So when a train comes along and one of them gets knocked off the bridge and dies, is it murder for all? Or is that just a tragic accident?

    The law produces edge cases like “two kids agree to shoplift some candy, when they get caught one of them produces a gun and shoots the shopkeeper” earning the non-shooter a murder wrap even though he had no prior knowledge of the weapon. This case is even further removed from any base concept of holding people responsible for their actions. It is clearly just a case of using the law to pile on as much time as possible to “get the bad guys”. This is not justice in any meaningful way.

    1. Yeah, did the other candy thief’s presence increase the likelihood of the shooting? What if it was 100 shoplifters, & only 1 knew s/he had a gun? Are they all “murderers”? What if one of the employees also happened to have his hand in the till? What if someone else, seeing the commotion after the shooting, takes advantage by going in & looting? What if a partner of the dead shopkeeper commits insurance fraud by claiming a much greater loss? (I actually dreamt about that last night as a plot of a TV show.) Is the bogus claimant also a murderer?

  22. And I don’t understand why people here get so het up about someone formerly posting as Tulpa. Just read what’s written. Most of the time I don’t pay att’n to who’s writing what. (I have trouble keeping people straight IRL too.) They could all be bots for all I care. Something about the pattern of someone’s writings here gets your dander up? Fuck it, just treat it as if every single comment here is written by an entity that existed for just long enough to write that comment, and then you can actually pay att’n to the contents.

    1. I like to pretend I died the night before and am reborn every morning.

    2. It’s not that at all.

      The same people overflowing with righteous indignation about me having a different name now, were trying to poison the well against me back when I was Tulpa.

      People just don’t like their cherished beliefs being called into question. They chased off nearly everybody who disagrees with them on a certain set of Reason’s cherished issues (cops, food trucks, red light cameras, etc), and when I didn’t leave something had to be done.

      1. Fuck off liar. You lied and got caught Rolla/Tulpa/whatever the fuck you’re calling yourself.

  23. “Of those, 11 states unambiguously allow for individuals who commit a felony that ends in a death to be charged with murder even when they were the victims, rather than the agents, of the killing.”

    Describing a group of people who initiated actions with the express purpose of violating someone’s rights as a “victim” when that someone defends himself seems morally obtuse spin doctoring whatever you think of their legal situation.

  24. A few points:

    First, there was a homicide here. The shooter just happens to have a good affirmative defense: self-defense. That doesn’t mean that nobody is at fault.

    Second, this is collective punishment, of a sort: everyone involved in the crime is held responsible for all the results of their criminal activity. And that’s OK, because they voluntarily entered into the collective that is being punished.

    A hypothetical: Five guys break into a house, and on the way out one of them accidentally knocks over a candle and burn the house down and kill a family of four and their dogs. There’s no way to know which one knocked over the candle. Does that mean no one can or should be charged?

    Another hypothetical: Three guys attack a woman. One guy holds her arms while the other two rape her. He never did anything sexual. Should he not be charged with rape?

    Collective responsibility for collective crimes doesn’t bother me. Neither does holding the group responsible for all the harm that they do.

    This is only interesting because it goes from what they actually did, to something that was a foreseeable result of what they did. There’s a legal tangle (and always has been) around “criminal intent” that can get interesting, but to me that’s the only real interesting question here.

    1. As to the candle incident, the only thing that should be charged is whatever you think liability should be for knocking over a candle, which somebody left burning where it could be knocked over so easily. It’s not murder, it’s an accident.

      3 guys attacking a woman, each of them intended the same outcome. So each of them should bear 1/3 of the total blame. One of the many, many things that bothers me about criminal law is where the harm somehow multiplies so it’s like each of them committed a rape, when only 1 rape was committed. It should be the same as in tort law, where you’d apportion the harm over the people contributing to it, so each should get 1/3 of whatever a solo practitioner of the crime would have coming to him.

    2. Collective responsibility for collective crimes doesn’t bother me. Neither does holding the group responsible for all the harm that they do.

      There is a distinct difference in the case (and cases like) the article mentioned. The group of criminals did not commit the “harm” (re: thee death of their compatriot). The homeowner did.

      There is no logically consistent argument for holding the intruders criminally liable for the actions of the homeowner.

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