It’s murder

I’m giving you a gift today. It’s a lovely little plot opportunity, courtesy of an important but rarely understood aspect of US law. That gift? The felony murder rule.

Here’s a succinct version of the law:

If a defendant causes a death while committing a felony, the defendant is liable for murder—regardless of whether he intended to kill anyone.

It’s a vital twist on homicide law because usually murder requires intent to kill. But under the felony murder doctrine, if our defendant causes a death in the course of committing a felony, he can be charged with murder instead of manslaughter. The prosecutor won’t have to prove intent to kill, and the defendant will face a harsher sentence. In fact, historically those convicted under the doctrine could be sentenced to death.

But wait! There’s more!

The felony murder doctrine also makes a person liable for deaths caused by his colleagues. So if Alice and Betty rob a liquor store, and Alice shoots the clerk and kills him, they can both be charged with felony murder. Even if Betty wasn’t aware the gun was loaded or had begged Alice not to kill anyone. And of course a savvy prosecutor might use this to his advantage, especially if he has it in for Betty. He can make a deal with Alice: she pleads out to a lesser charge and, in return, testifies against Betty in a first-degree murder case. Result? Alice spends a few years in prison while poor Betty’s locked up forever. Fair? Maybe not. But perfectly legal and not uncommon. Think of the plot possibilities.

It gets even better. Suppose Alice is soft-hearted and carries a realistic toy gun rather than a real one. But when she pulls the gun out, the clerk takes one look and drops dead from a heart attack. Still felony murder. Alice and Betty spend the rest of their lives in prison.

Oh, but I can do you one better. Now suppose Alice and Betty walk into the liquor store with the toy gun, but this time the clerk pulls out a very real gun and blows Alice away. Due to the self-defense doctrine, the clerk’s very unlikely to be convicted of anything. But Betty? You guessed it: felony murder. Same goes if it’s a cop who shoots Alice. The cop has probably exercised appropriate use of force, but Betty’s out of luck.

The Supreme Court held that people can’t be sentenced to death if they were only minor participants in the crime. But that doesn’t mean they have to actually pull the trigger. If they were major participants and indifferent to human life, they may still be eligible for the death penalty. And in any case, they can still get life or life without parole, depending on the jurisdiction.

Some states also limit the crimes for which the doctrine appliesgenerally to inherently violent or dangerous ones. And most say that the death must be reasonably foreseeable.  But the doctrine can be applied pretty broadly. Consider, for example, a recent case in which a shoplifting suspect was chased by a motorcycle officer; the bike crashed and the officer died. The suspect is facing life in prison. Or another recent case in which a group of armed young men allegedly chased a couple. The victims ran onto a busy road and were struck by a pickup truck, injuring the man and killing the woman.

Suspects rarely know about felony murder—a circumstance police can use to their advantage. If the cops are interrogating Betty, who doesn’t know about the doctrine and has been unwise enough not to lawyer up, they might easily get her to admit to the robbery. She thinks she’s getting herself off the hook for murder by making statements to the effect that all she intended to do was rob the store. But in doing so, she’s implicating herself for felony murder.

There. It’s a good gift. Use it well!


Wouldn’t it be grand?

Like much else that’s weird and complicated about American criminal justice, we can blame the English for our jury system. Thanks, guys. Among many other things, we inherited two kinds of juries: petit (pronounced petty) and grand. And no, that doesn’t indicate that one kind is only interested in stupid things while the other wears diamonds and lives in a mansion. The names are French—small and large—because back when they were invented, members of the English nobility were speaking French. Which tells us how old the practice is; it dates all the way back to the Norman Conquest. And the names simply refer to the fact that grand juries are bigger than petit (traditionally, 23 members instead of 12).

Here’s what happened back in 1166. As part of his attempt to unify England, King Henry II created royal courts that rode around, hearing cases in various jurisdictions (shires). These were called circuit courts, a name that carries over into our own federal judiciary today. Circuit courts helped solidify Hank’s rule as well as bringing more uniformity to English law (creating, in fact, a common law). But the process created problems. One of those was that a period of time passed between court sessions in a particular place, and the judge who eventually showed up had no clue what had gone down in his absence.

But Hank had a solution for that too. When the judge appeared, a group of the most prominent local men would appear in front of the sheriff and report—under oath—all the crimes that had occurred in the interim. Jury comes from the French word meaning to swear. So from the beginning, the grand jury’s job was to consider evidence and initiate criminal proceedings.

Jury roles evolved over the centuries, but grand juries made their way into the Magna Carta in 1215 and the English Bill of Rights in 1689, and then hopped the pond and settled into the 5th Amendment to the US Constitution. Settled pretty firmly, in fact, because while the UK has pretty much abolished them and the rest of the world either dumped them or never adopted them to begin with, the US still uses grand juries. (So does Liberia. That’s it.)

How they’re used varies by jurisdiction, as does the size of the grand jury and the manner in which it’s chosen. One thing is universal, however: unlike petit juries, grand juries do not decide guilt.

So what do they do? Thanks to the 5th Amendment, the prosecutor must present evidence before a grand jury in all federal cases. The grand jury then decides whether there’s sufficient evidence to constitute probable cause. If so, it issues an indictment  (yes, more French there) containing the formal charges, and the case proceeds. If not, the initial charges are dropped. The prosecutor can either give up or try again (with the same or different charges; double jeopardy protections don’t apply).

Now, for various complicated reasons, the grand jury clause of the 5th Amendment doesn’t apply in state proceedings. A few states, like New York, require them anyway. Most others keep it as an option. The prosecutor can choose to go before a grand jury or can instead go in front of the judge, a proceeding called a preliminary hearing (or prelim). The latter course of action is much more common, but for strategic or political reasons DAs do occasionally choose the grand jury route.

Grand juries are usually big—23 is a common size. They have the power to order (subpoena) people to appear before them for hearings and, to some extent, the power to conduct investigations.

A few jurisdictions such as California also use civil grand juries. These generally investigate potential government misconduct.

For hundreds of years, people have referred to criminal grand juries as the Sword and the Shield. Shield because they can protect citizens from malicious prosecutions; sword because they have the power to bring justice against wrongdoers. It’s debatable how well they serve either of these functions, especially today. But they’re still interesting creatures and—this is where you come in—serve as wonderful potential plot points.

I fall to pieces….

Today’s subject may seem a bit esoteric, yet it’s vital to understanding the US criminal justice system. The subject is fragmentation.

Most countries have a national system of criminal justice. A single set of laws, police, courts, and corrections, all administered at the federal level. Oh, but not us. We can blame the English, who brought with them a complicated system built from their history as many tiny and diverse kingdoms unwillingly united under the Norman Conquest. We can blame our own history too—separate colonies, a long and shifting frontier, and varying views of the role of federalism. What we ended up with was a tangle.

Let’s look at law enforcement, for example.

Suppose the police were called to the street outside my home here in California. Those police might be my local city police. Because I live near a university campus, they might also be campus police (a state agency). They might be sheriff’s deputies—a county agency. They might work for any one of a variety of specialized state agencies, including highway patrol, fish and wildlife, park service, firearms, gambling patrol, department of motor vehicles, and many more. They might work for one of many federal law enforcement agencies. FBI. ATF. DEA. Customs. US Marshals. FAA. Secret Service. And lots, lots more. Under very specific circumstances, that cop outside my door may even work for the international agency, INTERPOL.

There are currently over 17,000 separate police agencies in the United States, with roughly two-thirds of them being municipal (city) police departments.

And that’s just the police! We also have courts at the federal and state (and sometimes local) level. We have laws at varying levels too. And corrections may be local, state, or federal. And you know what? Each agency has different rules and policies.

This is the reason behind my frequent warning to check with your relevant jurisdiction before writing. Just because one agency does things a certain way or you’ve seen it done a particular way on TV doesn’t mean that’s how it’s done in your setting. I’ve seen authors mess this up many times. It throws me out of the story and indicates sloppy research.

Such a complex situation has bad points and good. On the downside, it leads to inconsistencies and misunderstandings. It sometimes causes friction between members of different agencies. Sometimes agencies may even have trouble communicating with one another due to different technology or policies or resources. Or plain old stubbornness.

I should note, though, that contrary to what you’ve seen in movies, agencies generally cooperate with each other. The other day, a morning car wreck happened along a busy street near the university, junior high, high school, and elementary school. And it happened right when everyone was dropping kids off or going to work. My city police responded, but so did campus police and the highway patrol (which has jurisdiction on all public byways), and they worked together to deal with the problem. Similarly, many of the small towns in my area have limited resources for dealing with homicides, which are rare. So when one does occur, they have an agreement that allows them to call in homicide detectives from our county’s largest city.

Fragmentation has a major upside, which is probably the main reason it has continued so long here. That’s the possibility of local control. Washington, DC, doesn’t know what’s going on in my small city and mostly doesn’t care. Solutions and policies crafted in Washington may not be very effective in California’s Central Valley. But our local police can be very responsive to our particular concerns. They know, for instance, that traffic becomes problematic during the first couple weeks of the school year, and they increase patrols near schools (One particular motorcycle cop must write dozens of tickets daily. I always see him pulling people over.).

Now, some could argue that federal systems could also understand local issues if they had local administrative offices. But if my community is unhappy with our police, we can talk to our city council members and have them put pressure on the chief to fix things—or be fired. That couldn’t happen as easily with a national system. Of course, local control can be a serious problem too, depending on who’s doing the controlling. Historically, for example, some local police departments not only didn’t interfere with violence and intimidation of African American residents but may even have encouraged and participated in those acts. This has sometimes resulted in federal agencies stepping in.

Fragmentation can also be a challenge or a boon to writers. As I’ve said (many, many times!) it requires careful, specific research. Yet it can also be a source of wonderful plot points. You know…. Jaded federal agent from the Big City comes to the Small Town to investigate a crime. Romance (or dastardly deeds, or humor) ensues. Or hapless hero assumes what’s legal back home is also legal on vacation, but it’s not. Romance or dastardly deeds or humor ensue.


Bail me out

If you drive past your local jail or courthouse, chances are you’ll find a cluster of similar businesses nearby: bail bondsmen. Some of the ones in my county have rather fanciful names: Bad Moon. Bad Boys. Aladdin. Redemption. Underdogg. And my personal favorite, ABBA. I’m wondering whether the last one assists people who snapped after overdosing on 1970s Swedish pop music, and I’m hoping they perform their services with an appropriate soundtrack.

Last week I wrote about bail in general; this week, let’s talk about bail bondsmen.

I’m going to begin with a warning to—as usual—be aware of the rules in your jurisdiction. A few states have banned bail bondsmen altogether because the practice discriminates against poorer defendants.

The basic operations of bail bondsmen are fairly simple. Let’s suppose Wanda has been charged with arson of an inhabited structure. She’s facing some serious prison time, so to make sure Wanda doesn’t wander—and fail to show up for trial—her bail amount will probably be high. In California, the presumptive amount may be $250,000. Now, few of us have a quarter million dollars sitting around, and Wanda’s no exception. So what can she do to keep from languishing in jail while waiting for trial? Go to a bail bondsman, of course.

What’s going to happen is Wanda (or her friends or family members) will pay the bondsman 10% of her bail amount (this percentage varies, but 10% is most common). In return, the bondsman will post a bond with the court, ensuring Wanda’s appearance at trial. If Wanda shows up, great, although she’s still going to be out that $25,000 because that’s the bondsman’s fee for services. That’s true even if she’s eventually found not guilty. If Wanda flees, the bondsman will have to pay the court the full $250,000. Naturally, he’s not going to be happy about that. He’ll either hunt down Wanda himself or hire a bounty hunter to do so, and if they eventually capture Wanda and drag her back to jail, the bondsman will get his money back.

In theory, bail bondsmen are a good idea because they help lower income people stay out of jail while awaiting trial. In practice, though, the process means poor people—even innocent ones—are going to have to pay to remain free, while wealthier defendants who can afford their own bail won’t pay anything in the long run because they’ll eventually get the full amount of their bail back. For this reason, a few states have banned bail bondsmen and instead permit defendants to post 10% of their bail directly to the court. If those defendants show up, they’ll get all the money back. If they abscond, they lose the 10% and become liable for the full amount of their bail.

Who can become a bail bondsman? Many states have no training requirements. Generally, the primary requirement is that the bondsman be licensed as a small business. Other states have rules about criminal history, education, and other criteria.

I think the bail bondsmen’s potential as plot fodder is underappreciated. If you want to watch a movie that made good use of this idea, consider Midnight Run.