Do you write paranormal or horror? Then today I have a plot bunny for you, courtesy of friends and my daughter. Let me preface this by saying that, like many attorneys, I enjoy considering legal hypotheticals. We can’t help it. Law school ruined us.

So my younger daughter recently sent me this text:

She was at a birthday party. I don’t even want to know how the subject came up. But I posted the text on Facebook, which led a couple of friends to make comments about zombies. And that leads to today’s plot bunny.

Suppose Alex is a zombie. And further suppose Alex  attacks Bob, a living human being, and kills him. And then, maybe after some time has passed and after Bob has begun his own zombification process, Alex eats Bob’s brainnnnns.

Assuming zombies are subject to criminal laws, can Alex be charged with two homicides?

Part of our answer will depend on an interpretation of the law. Homicide is generally defined as the unlawful taking of a human life. So are zombies human? If not, Alex can be charged with only one homicide, plus maybe desecration of a corpse. If zombies are human, another question arises. Does it violate double jeopardy to charge someone with killing a person and then destroying the zombie that person has become?

We could add some other twists as well. What if Alex kills Bob, abandons the corpse, returns before Bob has risen as a zombie, and eats his brainnnnns then? Would that still count?

And what defenses might Alex have? Can a zombie form mens rea?

One of my law profs once gave a lecture about how lawyers are vampires, but I think lawyers and zombies could be fun too. So please. Consider writing a zombie legal procedural novel?

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!


Making a killing

Storytellers (and their audiences) have been fascinated with the topic of homicide since before we started writing our stories down. Consider the Iliad, for instance, which is nearly 3000 years old. There’s a lot of death there, with the killings of Hector and Patroclus forming a central part of that tale. Even our legal concepts of homicide are old. Although specifics vary between jurisdictions (yadda yadda yadda), most US states base their homicide law heavily on English common law dating to the Norman Conquest.

All homicides involve the same action: one human being killing another. The parties do have to be human. No matter how intelligent or well-loved a non-human animal is, its killing cannot be a homicide. If you’re a spec fic author, you have some lovely opportunities to muse on the potential definitions of humanity. Sentient aliens? Artificial intelligence? The walking dead, undead, and reincarnated? Ooh, such possibilities!

What differentiates the different kinds of homicide is the defendant’s mental state and the surrounding circumstances. We can subdivide homicide into three categories, each of which is comprised of subclasses.

Murder is the most serious kind of homicide. It involves unlawful killings–usually intentional killings, although there are a few exceptions to that rule. State definitions differ, but generally first-degree murder involves killing someone intentionally with some degree of premeditation. It doesn’t require a lot of premeditation. In some cases, first degree murder convictions have stood when the killer formulated his intent to kill a very short time before following through. Typically, though, he’s been thinking about it for a while. First degree murder may also include felony murders, in which the offender committed a felony—an armed robbery, maybe—and didn’t plan for anyone to die, but someone did. There are some interesting twists to the felony murder rule; I’ll cover them in a later post. In the US, first-degree murder is almost the only crime that carries a potential death sentence (the other being treason).

Second-degree murder is also intentional, but without preplanning. Cain and Abel get into a bar fight, Cain says “I’m gonna kill you!” and then he pulls out his gun and shoots Abel dead. That’s second degree. Second-degree murder also often includes “depraved heart” killings in which the killer didn’t necessarily want anyone to die, but acted with such extreme indifference to human life that a death was likely. The classic example is shooting a gun at a passenger train.

Manslaughter is a killing involving less culpability on the part of the offender. For voluntary manslaughter, the killer has acted “in the heat of passion.” That is, something provoked him so severely that he lost control of himself and killed. The classic example here is when the offender comes home and finds their spouse in bed with someone else. Involuntary manslaughter means the offender was so careless as to cause someone’s death. Vehicular homicides such as those caused by excessive speeding or drunk driving are often charged as involuntary manslaughter, although in some states they’ll be vehicular manslaughter instead.

Finally, there’s non-criminal homicide. This occurs when the killing is permitted by law (e.g., euthanasia and execution) or is justified under the circumstances, such as self-defense or some killings by police officers. As the name suggests, those who commit non-criminal homicides won’t face punishment. But somebody’s still dead.

Homicide law is complex, full of all kinds of little details that could make lovely plot points. For example, what do we mean by “killing”? Does brain-dead count? How direct does the relationship need to be between the offender’s acts and the victim’s death? What if the death occurs years after the attack, as in this case? How much premeditation is enough? When has someone acted with a depraved heart? (That was the issue in the recent trial of a Baltimore policeman for Freddy Gray’s death.) When is an act careless enough to justify criminal liability?

Even if we set aside the inherent drama of human life and death, it’s no wonder homicides have fascinated us for so long!