The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So reports Peter Hermann, here at The Washington Post:
Federal prosecutors said they will not charge John W. Hinckley Jr. with murder in the shooting of President Ronald Reagan's press secretary in a 1981 assassination attempt, even though a medical examiner concluded his August death was caused by the old wounds.
The decision, announced Friday by the U.S. Attorney for the District, comes four months after the coroner decided that James S. Brady's death at the age of 73 was caused by bullets fired 34 years ago outside the Washington Hilton on Connecticut Avenue Northwest. Reagan, just 69 days into his presidency, was severely wounded. Brady was struck first, above the left eye, and the bullet shattered in his head into fragments.
"The decision was made following a review of applicable law, the history of the case, and the circumstances of Mr. Brady's death, including recently finalized autopsy findings," the U.S. attorney's office said in a statement.
Here are my posts from August on why such a federal prosecution would likely have been legally forbidden, and why a Virginia prosecution would likely have been precluded as well:
May the government try John Hinckley for James Brady's murder?
The death of James Brady, President Ronald Reagan's press secretary, at age 73 earlier this week has been ruled a homicide by a medical examiner. Brady was injured during an attempt on Reagan's life in 1981. Let's assume that the government can prove beyond a reasonable doubt that, but for the shooting, Brady would have lived longer (pretty much the legal test for causation in this sort of situation). Could the shooter, John Hinckley Jr., be tried for murdering Brady, even though he has already been tried for attempting to kill Brady, and found not guilty by reason of insanity?
The answer is no, likely for two different reasons.
1. The year-and-a-day rule: At common law, a murder charge required that "the death transpired within a year and a day after the [injury]" (see Ball v. United States (1891), and this apparently remains the federal rule (see United States v. Chase (4th Cir. 1994)). Many states have apparently rejected this rule, given the changes in modern medicine that make it much easier to decide whether an old injury helped cause a death; but though the Supreme Court in Rogers v. Tennessee (2001) held that a court could retroactively reject the rule without violating the Ex Post Facto Clause (which applies only to legislative changes to legal rules) and the Due Process Clause, any such retroactive rejection of the year-and-a-day rule seems unlikely in this case (given that for the rule to be reversed the case would likely need to go up to the Supreme Court, and that in any event the rule had been applied relatively recently, in Chase).
To be sure, D.C.'s highest court rejected the year-and-a-day-rule in United States v. Jackson (1987). Yet Jackson was a 1987 case, decided after the Hinckley shooting. It expressly stated that, as of 1987, the year-and-a-day rule was in effect under D.C. law:
The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified. [Citations omitted throughout. -EV] In 1776, Maryland adopted the common law of England as it then existed. Therefore, we look to early Maryland law to resolve the question whether the year and a day rule is law in the District of Columbia.
The Court of Appeals of Maryland has held [in 1974 and in 1985] that the year and a day rule is part of the common law of Maryland because it was part of the English common law in 1776. A division of this court (in an opinion subsequently vacated for reasons not pertinent here) has unanimously concluded [in 1979] that the rule retains its viability in the District of Columbia. In re J.N., Jr., 406 A.2d 1275, 1283 (D.C. 1979).
We follow this reasoning in concluding that the common law year and a day rule is today the law in the District of Columbia.
And the D.C. court (in Jackson) expressly held (based on the Ex Post Facto Clause) that its abrogation of the rule would thus apply only prospectively, to prosecutions after that decision.
What should the effect of that be? On one hand, as I noted above, the U.S. Supreme Court in Rogers held that Tennessee courts could change the rule without violating the Ex Post Facto Clause, so that might undermines Jackson's prospectivity-only reasoning. This might mean that the prospective-only rule can be retroactively changed to a retroactivity-OK rule.
But on the other hand, Jackson expressly stated—in a discussion of substantive D.C. law, not of the Ex Post Facto Clause—that, as of 1987, the year and a day rule was still the law in D.C. And the U.S. Supreme Court in Rogers stressed that "perhaps [the] most important" part of the reasons for its acceptance of the Tennessee court's retroactive rejection of the rule was that, "at the time of petitioner's crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee." The D.C. Court of Appeals' analysis in Jackson makes clear that "at the time of [Hinckley's crime] the year and a day rule" had much more than a "tenuous foothold" as part of D.C. criminal law.
So I think that, if Hinckley were tried now for murder under D.C. law (which he couldn't be, for the independent reasons below, but let's set those aside for now), he would be tried under D.C. law as it existed in 1981, at the time of the shooting. And, given the D.C. highest court's analysis of D.C. law in Jackson, that as-of-1981 law would include the year-and-a-day rule, which would make Hinckley substantively not guilty of the crime of murder.
2. Double jeopardy and collateral estoppel: But say the year-and-a-day rule didn't apply here—hasn't Hinckley already been tried for the shooting, and doesn't the Double Jeopardy Clause stop him from being retried? The answer is yes, but in a circuitous way.
a. It's okay to try someone for murder, even if he's already been convicted of the attempted murder: If Hinckley had been tried for attempted murder and found guilty when Brady was still alive, he could be tried for murder after Brady died. Indeed, this is pretty much what happened in Diaz v. United States (1912), and this remains the law today, see Garrett v. United States (1985):
In Diaz v. United States, 223 U.S. 442 (1912), the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant's claim of double jeopardy, holding that the two were not the "same offense" ….
For a recent state case applying this rule, see State v. Hutchinson (N.H. 2011), which also cites other cases from other states.
b. It's sometimes okay to try someone for murder, even if he's already been acquitted of the attempted murder: Say someone (not as in the Hinckley case) acted extremely recklessly and injured someone else as a result. If the reckless person were tried for attempted murder, he'd be acquitted, because attempted murder generally requires a conscious purpose to kill, not just reckless endangerment.
But say the injured person then dies. The defendant could then be retried for murder, and convicted, because actual murder (not attempted murder) can happen even if the defendant didn't have a conscious purpose to kill, so long as he was extremely reckless.
c. But the jury's conclusion that Hinckley was insane is now binding on the government, and thus precludes a retrial for murder: Under the "collateral estoppel" doctrine (Ashe v. Swenson (1970), "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." That's most commonly applied in civil cases, but it also applies in criminal cases, against the government (so long as it's the same government involved in both cases).
The jury determined by a valid and final judgment that Hinckley was insane, and thus couldn't be liable for attempted murder. This judgment is binding on the government, and since the insanity defense applies the same way for murder as for attempted murder, it means that Hinckley would now be conclusively presumed to have been insane for purposes of any murder prosecution as well. He would have an ironclad defense to the murder charge, and thus any case against him couldn't proceed. For a similar case, see United States v. Oppenheimer (1916), though there the defense was the statute of limitations rather than insanity.
(Note that the federal insanity defense has been considerably narrowed since the Hinckley trial—indeed, as a result of the Hinckley trial. But this legislative narrowing can't be retroactively applied, given the Ex Post Facto Clause.)
Nor would the "dual sovereignty" doctrine allow Hinckley to be tried in the D.C. court system (starting in the D.C. Superior Court), given that the earlier trial was in the federal court system (the D.C. District Court). The answer is no, because D.C. and the federal government—as opposed to state governments and the federal government—are the same sovereign. Because of this, "successive D.C. and federal prosecutions for the same conduct are subject to the bar on double jeopardy, whereas successive state and federal prosecutions are not." United States v. Mills (D.C. Cir. 1992).
So no retrial for Hinckley, despite the medical examiner's conclusion, and even if that conclusion could be proved beyond a reasonable doubt. Or so it seems to me, based on my general knowledge of the field, and my research this afternoon; please let me know if there are some legal arguments that I've missed here.
President Garfield, President Reagan, murder, and jurisdiction—why Virginia can't prosecute Hinckley, either
Brady was shot in D.C., but he ultimately died in the Virginia retirement community in which he was living. Could Virginia authorities therefore prosecute Hinckley for murder because of that? The Court has held that the Double Jeopardy Clause (which would include the collateral estoppel doctrine) doesn't preclude one sovereign—such as Virginia—from trying someone who has been acquitted in the courts of another sovereign (the United States). And whether Virginia recognizes the year-and-a-day rule (under which an attacker can only be convicted of murder if the death occurs within a year and a day of the attack) is not clear, though Clark v. Commonwealth (Va. 1893) acknowledges the existence of the rule in passing. (A 2009 statute expressly abrogated the year-and-a-day-rule, but statutory changes like that can't be applied retroactively, given the Ex Post Facto Clause, so the question would be whether the year-and-a-day rule would be seen as having still existed in Virginia as of 1981.)
Of course, a state generally doesn't have jurisdiction over a crime unless the crime was committed within the state (with some exceptions). But murder involves (1) causing (2) another's death. What happens if the death is caused in one state, but the death happens in another state?
Oddly, this very issue came up with a presidential shooting 100 years before the Reagan shooting: the killing by Charles Guiteau of President James Garfield (the only president to have published a proof of the Pythagorean theorem). But the question was the flip side of the one the commenters asked. Garfield was shot in D.C., but died two and a half months later in New Jersey—and Guiteau argued that this meant he couldn't be tried in D.C.
In a court decision that proved highly influential throughout the U.S., Guiteau's argument was rejected. The murder was seen as being triable in "the place where the blow was struck," and "the place of death" was seen as "immaterial." And the dominant view, as best I can tell, was that the murder could only be prosecuted where the victim was injured, and not where he eventually died. "[I]n such case it is the law of [the state where the mortal blow is given] that is violated, and not the law of the state where death may happen to occur" (Stout v. State (Md. 1892)). "[T]he offence was committed where the mortal wound was inflicted and the crime was complete there so far as the defendant was concerned" (Robertson v. State (Fla. 1900)). "[T]he crime is committed at the place where the act is done which results in the injury or death, and … the prosecution for such act is properly conducted at the place where the act is done, and not where the death may occur." (Commonwealth v. Apkins (Ky. 1912).
"The place where the blow was inflicted is the place where the crime was committed, and it is wholly immaterial to what points the injured man wandered or was removed, or the extent to which he changed his place of residence, or where he died" (Kirkham v. People (Ill. 1897)). "[T]he place where [the defendant gives the fatal blow] is the place where he commits the crime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime" (State v. Bowen (Kan. 1876)). "It is for his acts that defendant is responsible. They constitute his offence. The place where they are committed, must be the place where his offence is committed, and therefore the place where he should be indicted and tried" (State v. Gessert (Minn. 1875)).
Now these were rulings about state law, not about any constitutional constraints, and the courts contemplated that the rule could be changed by state statute (at least when the state has a sufficient connection to the killing, such as when the victim dies in the state). But as I read the relevant Virginia statutes, they don't actually purport to change the rule in a Hinckley-like case.
Va. Code § 19.2-248 ("Venue when mortal wound, etc., inflicted in one county and death ensues in another") provides that, "If a mortal wound, or other violence or injury, be inflicted, or poison administered in one county or city, and death ensues therefrom in another county or city, the offense may be prosecuted in either." That, though, seems to me to be limited to intrastate venue disputes, and doesn't claim Virginia jurisdiction over shootings that take place in D.C.; for a case so holding as to a similar Michigan statute, see People v. Duffield (Mich. 1972). And Va. Code § 18.2-37 ("How and where homicide prosecuted and punished if death occur without the Commonwealth") seems to reaffirm the traditional place-of-fatal-blow rule:
If any person be stricken or poisoned in this Commonwealth, and die by reason thereof out of this Commonwealth, the offender shall be as guilty, and shall be prosecuted and punished, as if the death had occurred in the county or corporation in which the stroke or poison was given or administered.
To be sure, this statute doesn't by itself exclude the possibility that Virginia would punish both those cases in which the attack takes places in Virginia and the death happens elsewhere, and those cases in which the attack takes places elsewhere and the death happens in Virginia. But neither does the statute expressly claim for Virginia jurisdiction over the latter kind of cases. And given the background rule I described above—a rule that Va. Code § 18.2-37 seems to echo—I think the better view is that Virginia would view Hinckley's case as a matter for D.C. authorities, D.C. being the place "in which the stroke … was given." To quote again one of the cases mentioned above,
[T]he place where [the defendant gives the fatal blow] is the place where he commits the crime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime.
To get the Volokh Conspiracy Daily e-mail, please sign up here.