Assault: 6 years in prison. Victim dies 9 years later: New charge of murder.

Six (6) years is nuthin. Here in Philly a guy shot a cop back in the 70s. Sadly the cop was paralized from the waist down as a result of the shooting. He was confined to a wheel chair. The shooter served a long sentence I don't recall how long was out and apparently really reformed himself and is now a man in his early 60s.

The Cop passed away recently from a complication that is not uncommon in Paralysis patients. Coronor ruled Manor of Death Homocide. The arrested the guy and are trying him for murder. Trial should be interesting. My guess is they are going to reach some kind of deal.
 
I've got no problem with it. If the woman died from complications due to her injuries, and those injuries would not have happened if she hadn't been shot, then there's direct causality in my opinion between the shooting and the death, regardless of elapsed time.

The woman had to suffer for 9 years. He only had to suffer for 6. Hardly just...
 
Double jeopardy. I thought the govmnt wasn't allow to try people twice for the same crime.
 
Greebo said:
I've got no problem with it. If the woman died from complications due to her injuries, and those injuries would not have happened if she hadn't been shot, then there's direct causality in my opinion between the shooting and the death, regardless of elapsed time.

The woman had to suffer for 9 years. He only had to suffer for 6. Hardly just...
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I do agree, but I just feel like the Solicitor/DA has got to be careful when making decisions like this. If someone commits suicide after being assaulted or raped, does that constitute murder as well? What about victims of DUI?
 
wbarnhill said:
What about victims of DUI?
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Around here, if a driver kills someone while DUI he/she can expect to be charged with, at least, manslaughter.
 
steingar said:
Double jeopardy. I thought the govmnt wasn't allow to try people twice for the same crime.
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He's NOT being tried for the same crime - he was tried for the assault (which is NOT a lesser-included offense to murder, and that's important) for having shot her, and now he's being charged with murder for having KILLED her!

We'll see where it goes... hope one of my attorney's gets this - it would be interesting to work on!
 
If found guilty of the murder charge, what are the odds that they'd apply the time served to the new charge, as opposed to having the sentences run, as it were, consecutively? My guess is that he'd be credited with time served, because I would presume that, had she immediately died, he would only have been charged with the murder, not the assault though, if I understand Tom's point, it would have been an option even had she died immediately.
 
He shot her. One crime. Two charges. At least the way I see it. I'm not a lawyer, but then again neither are you.
 
steingar said:
He shot her. One crime. Two charges. At least the way I see it. I'm not a lawyer, but then again neither are you.
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Nope, but I bet I've had more law classes than you have! :) In ANY case, having folks tried more than once on charges stemming from the same incident happens with some regularity - most often state court then federal court. The important thing to consider is that it isn't the SAME CRIME. It's from the same set of circumstances, but the charges are different, which is what I said when I pointed out that the assault charge was not a "lesser included offense" to murder, with entirely different elements.

Snarkiness notwithstanding.
 
It's not double jeopardy since the "murder" didn't occur until the victim died, making this a new crime under a different statute, and there's no statute of limitations on murder.
 
GaryO said:
Around here, if a driver kills someone while DUI he/she can expect to be charged with, at least, manslaughter.
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Well I meant like further down the line like in this case, someone dying years later from injuries. But don't get me started on the weak sentences for death resulting from DUI here in SC...

http://www.wpde.com/news/news_story.aspx?id=78414 - Eight years for two lives.
 
Ron Levy said:
It's not double jeopardy since the "murder" didn't occur until the victim died, making this a new crime under a different statute, and there's no statute of limitations on murder.
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Going hypothetically... Had they not charged him with "intent to kill" on the original charge, could they have charged him with murder now, or would it have had to have been a lesser charge?
 
It would depend on how the statute is written, William - each state decides what is or is not a lesser included offense to any other crime. I don't have the book here with me, so it beats me - but I'm thinking it is not.
 
etsisk said:
he was tried for the assault (which is NOT a lesser-included offense to murder, and that's important)
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Tom pretty much nailed it there. The theory of double jeopardy, like many other of my pet legal theories such as Fourth Amendment Protections against unreasonable search, and the use/need for Miranda-type warnings, has been overblown and distorted in the public mind by too much TV.
 
alaskaflyer said:
Tom pretty much nailed it there. The theory of double jeopardy, like many other of my pet legal theories such as Fourth Amendment Protections against unreasonable search, and the use/need for Miranda-type warnings, has been overblown and distorted in the public mind by too much TV.
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Very true.

DJ is a VERY limited concept. All it does is prevent you from being retried for the same charge stemming from a particular instance after a jury has been seated. It doesn't prevent you from being tried for a different charge from the same instance (note that multiple crimes can result from a single event), so long as the later-tried charge is not a "lesser included offense" of the charge originally tried.
 
etsisk said:
He's NOT being tried for the same crime - he was tried for the assault (which is NOT a lesser-included offense to murder, and that's important) for having shot her, and now he's being charged with murder for having KILLED her!

We'll see where it goes... hope one of my attorney's gets this - it would be interesting to work on!
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alaskaflyer said:
Tom pretty much nailed it there. The theory of double jeopardy, like many other of my pet legal theories such as Fourth Amendment Protections against unreasonable search, and the use/need for Miranda-type warnings, has been overblown and distorted in the public mind by too much TV.
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Obi Heed Kenobi said:
Very true.

DJ is a VERY limited concept. All it does is prevent you from being retried for the same charge stemming from a particular instance after a jury has been seated. It doesn't prevent you from being tried for a different charge from the same instance (note that multiple crimes can result from a single event), so long as the later-tried charge is not a "lesser included offense" of the charge originally tried.
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2jam3us.jpg


Thanks all for clearing that up :D
 
Greebo said:
I've got no problem with it. If the woman died from complications due to her injuries, and those injuries would not have happened if she hadn't been shot, then there's direct causality in my opinion between the shooting and the death, regardless of elapsed time.

The woman had to suffer for 9 years. He only had to suffer for 6. Hardly just...
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Agree totally. Those types of people should be made to suffer more than their victims if at all possible, in every way pertinent to every separate crime they committed. And that goes double for repeat offenders.
 
Obi Heed Kenobi said:
DJ is a VERY limited concept. All it does is prevent you from being retried for the same charge stemming from a particular instance after a jury has been seated. It doesn't prevent you from being tried for a different charge from the same instance (note that multiple crimes can result from a single event), so long as the later-tried charge is not a "lesser included offense" of the charge originally tried.
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Right -- just ask the cops acquitted in state court by the local Simi Valley jury of the state assault charges in the Rodney King incident who were later convicted in Federal court by another jury on Federal civil rights violations charges for the same event.
 
This is so unfair.

What I think would be more fair is that the shooter is lined up against a wall - the Judge pumps a couple shots into him - and we see if he lives. If so, we let him go after he's done his time.

Sorry - that's just me. I'm not in to crime.
 
Put it this way, had she died right away, they'd have charged him with Assault with a Deadly Weapon (one charge), and then Murder (2nd charge).

This is the same thing, just spread out. Let him rot in jail.
 
I think the crime is that he only got 6 years for shooting someone.

I can't understand the logic that someone who attempts to murder someone (and every shooting is an attempted murder in my book), but fails because he is a bad shot, gets a pitifully short sentence. If he is successful, then he may get life - or more commonly an equally pitiful short sentence.

If the sentences truly fit the crimes, there would be fewer recidivistic felons out committing violent crimes.
 
Double Jeopardy Question, was:Re: Assault: 6 years in prison

alaskaflyer said:
Tom pretty much nailed it there. The theory of double jeopardy, like many other of my pet legal theories such as Fourth Amendment Protections against unreasonable search, and the use/need for Miranda-type warnings, has been overblown and distorted in the public mind by too much TV.
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Something I've wondered about regarding double jeopardy and murder is whether the situation that's been portrayed in movies where a person is charged with murdering someone and then that someone turns out to still be alive after the accused gets off by virtue of fantastic legal talent and/or a technicality or insufficient evidence etc. The wrongly convicted "murderer" then supposedly can kill the "murder victim" without fear of new criminal charges because they were already acquitted of the crime of murdering the "victim" and double jeopardy would apply.

Seems to me that being acquitted of murdering someone once and then being tried for murdering the same person on a different date wouldn't be double jeopardy because there were two different crimes (never mind that the first murder wasn't actually a murder) that happened to involve the same victim and criminal code violation but at different times.

Certainly if a person was tried for assaulting someone and acquitted, they wouldn't get a bye on a future assault so why would that be true for murdering the same person "twice"?
 
Re: Double Jeopardy Question, was:Re: Assault: 6 years in prison

lancefisher said:
Something I've wondered about regarding double jeopardy and murder is whether the situation that's been portrayed in movies where a person is charged with murdering someone and then that someone turns out to still be alive after the accused gets off by virtue of fantastic legal talent and/or a technicality or insufficient evidence etc. The wrongly convicted "murderer" then supposedly can kill the "murder victim" without fear of new criminal charges because they were already acquitted of the crime of murdering the "victim" and double jeopardy would apply.

Seems to me that being acquitted of murdering someone once and then being tried for murdering the same person on a different date wouldn't be double jeopardy because there were two different crimes (never mind that the first murder wasn't actually a murder) that happened to involve the same victim and criminal code violation but at different times.

Certainly if a person was tried for assaulting someone and acquitted, they wouldn't get a bye on a future assault so why would that be true for murdering the same person "twice"?
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I assume you're talking about the fantastic movie "Double Jeopardy," in which a wife is wrongfully convicted of murdering her husband who staged the whole thing to have an affair (or something like that), she is released on parole, finds out he is still alive, and then kills him, and gets away with it?

Your supposition is absolutely correct. DJ prevents you from being charged twice with the same charge from the same transaction. In the situation above described, while it would be the same charge, it would arise from a different transaction - meaning DJ would not apply.

Keep in mind that the DJ privilege also does not attach until a jury is selected. In other words, you can be arrested and charged, and the prosecutor can drop that charge before a jury is seated - but may recharge you with it. If, however, the jury has been seated, you cannot be recharged - at that point, DJ bars a second charge.

[edit:] P.S. - By fantastic, I meant terrible.
 
Re: Double Jeopardy Question, was:Re: Assault: 6 years in prison

lancefisher said:
Something I've wondered about regarding double jeopardy and murder is whether the situation that's been portrayed in movies where a person is charged with murdering someone and then that someone turns out to still be alive after the accused gets off by virtue of fantastic legal talent and/or a technicality or insufficient evidence etc. The wrongly convicted "murderer" then supposedly can kill the "murder victim" without fear of new criminal charges because they were already acquitted of the crime of murdering the "victim" and double jeopardy would apply.
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They did that one on L&O, too, although I can't remember how it came out.
 
Re: Double Jeopardy Question, was:Re: Assault: 6 years in prison

yep - all she was convicted of was killing him THAT TIME on the boat. She could still be convicted of killing him some OTHER time! He did need shootin', though... :yes:
 
Re: Double Jeopardy Question, was:Re: Assault: 6 years in prison

Ron Levy said:
They did that one on L&O, too, although I can't remember how it came out.
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I'm pretty sure I've seen at least 3 cinematic variations on this theme and all of them seemed to be based on a flawed notion of double jeopardy. I guess that unlike Hollywood's portrayal of aviation truths, they fail to be completely accurate with legal matters.:D
 
I have always found the mental and legal gymnastics lawyers go through to be hilarious.

There is ONE crime....but someone we have created a system that can get you charged for fourteen different things.

BTW...I am not necessarily opposed to this, but as the OP first stated, one must be REAL careful about it.
 
tdager said:
I have always found the mental and legal gymnastics lawyers go through to be hilarious.

There is ONE crime....but someone we have created a system that can get you charged for fourteen different things.

BTW...I am not necessarily opposed to this, but as the OP first stated, one must be REAL careful about it.
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If you do fourteen illegal things while committing that "one crime", then you get fourteen charges, don't you? :yes:
 
IIRC, in the L&O version, the person had served the whole sentence for the original homicide (which hadn't really occurred). When the newly dead body of his original victim surfaced, and the trail led back to him, he threatened to sue for megabucks for the original wrongful conviction unless they allowed "time served" from the original conviction against this one, and the DA's were chewing on making the trade. As I now recall, the "second" murder was actually committed not by the guy convicted for the first "murder" (and arrested for the "second" one), but by his brother. The brothers were scamming the DA's to think the original "murderer" had done the final job so the "double jeopardy" issue could be used to make it the actual murder go away -- didn't work -- they convicted the brother. I was kind of disappointed by the show's writers' use of the other brother to avoid taking the DJ issue to its conclusion.
 
tdager said:
...

There is ONE crime....but someone we have created a system that can get you charged for fourteen different things.

....
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That doesn't recognize how complex things can get.

Suppose I rob a bank. I do it with a buddy, and we're both carrying unregistered pistols with the serial numbers filed off. We run into the bank, guns drawn, and I stick my gun in the guard's face, while my buddy pistol whips the teller and takes a couple grand. Then we run out the door and speed off in our car that was left running outside, blowing through several red lights in our getaway.

Although this is just "one crime," here are the charges against me:

1) Conspiracy;
2) Robbery, $1000+;
3) Armed Robbery (the robbery charge likely merges if convicted of both);
4) Reckless Endangerment;
5) Use of handgun in commission of crime;
6) Possession of unregistered handgun (there is an ex post facto issue here);
7) Possession of defaced firearm;
8) 2nd degree Assault of a police officer (assuming the guard qualifies);
9) 1st degree Assault with a deadly weapon (beating up the teller);
10) Leaving a car unattended with the keys in the ignition (often a crime);
11) Various traffic offenses.

So, should I avoid all of those charges simply because I've committed only "one crime?"
 
Obi Heed Kenobi said:
That doesn't recognize how complex things can get.

Suppose I rob a bank. I do it with a buddy, and we're both carrying unregistered pistols with the serial numbers filed off. We run into the bank, guns drawn, and I stick my gun in the guard's face, while my buddy pistol whips the teller and takes a couple grand. Then we run out the door and speed off in our car that was left running outside, blowing through several red lights in our getaway.

Although this is just "one crime," here are the charges against me:

1) Conspiracy;
2) Robbery, $1000+;
3) Armed Robbery (the robbery charge likely merges if convicted of both);
4) Reckless Endangerment;
5) Use of handgun in commission of crime;
6) Possession of unregistered handgun (there is an ex post facto issue here);
7) Possession of defaced firearm;
8) 2nd degree Assault of a police officer (assuming the guard qualifies);
9) 1st degree Assault with a deadly weapon (beating up the teller);
10) Leaving a car unattended with the keys in the ignition (often a crime);
11) Various traffic offenses.

So, should I avoid all of those charges simply because I've committed only "one crime?"
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However, if the DA's only charge you with crimes 1-9, and you are acquitted, there is nothing to stop them from also taking you to traffic court for crimes 10 and 11, right? In addition, I believe there are Federal firearms violations in at least crime 7, not to mention that bank robbery of a Federally-regulated bank is also a Federal offense, so the the Feds could also charge and try you even after the state court acquitted, also correct? Finally, if the teller dies six months later of her injuries, or the cop later dies from complications of his not-immediately-fatal heart attack (from looking down the barrel of the gun), there are new homicide charges which could be made in state court, also correct?

OTOH, if they only charge you with the robbery, and you're acquitted, there are limitations on going back to charge you with the assaults with which they could have charged you originally but didn't, right?
 
Ron Levy said:
However, if the DA's only charge you with crimes 1-9, and you are acquitted, there is nothing to stop them from also taking you to traffic court for crimes 10 and 11, right? In addition, I believe there are Federal firearms violations in at least crime 7, not to mention that bank robbery of a Federally-regulated bank is also a Federal offense, so the the Feds could also charge and try you even after the state court acquitted, also correct? Finally, if the teller dies six months later of her injuries, or the cop later dies from complications of his not-immediately-fatal heart attack (from looking down the barrel of the gun), there are new homicide charges which could be made in state court, also correct?

OTOH, if they only charge you with the robbery, and you're acquitted, there are limitations on going back to charge you with the assaults with which they could have charged you originally but didn't, right?
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I'm on my way out the door for some skiing - I just briefly skimmed your post, but it looks like it's right on. I'll explain more when I get back!
 
Obi Heed Kenobi said:
I'm on my way out the door for some skiing - I just briefly skimmed your post, but it looks like it's right on. I'll explain more when I get back!
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And THAT is the problem. I could be wrong, but I think Capn' Ron was actually showing the ridiculousness of it all.
 
tdager said:
And THAT is the problem. I could be wrong, but I think Capn' Ron was actually showing the ridiculousness of it all.
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I see why you say it doesn't make sense, but what are we supposed to do if a crook shoots a guy in the head, and the guy lays in a coma for 5 years, and then dies from only the bullet in his brain? Just let the crook off because there's time that's passed?

Now, as for the Feds being able to prosecute you for the same charges that a State has already charged you with, I don't agree with that. But, I also understand why there is that rule - it's the Federalism/State's Rights concept. The U.S. is really set up with each state being a separate entity, and the Federal government being an entirely separate and sovereign entity. So the theory is that the Feds are prosecuting in an entirely different system - almost as if its an entirely different country. So they say that DJ isn't infringed by doing that.
 
Obi Heed Kenobi said:
Now, as for the Feds being able to prosecute you for the same charges that a State has already charged you with, I don't agree with that.
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I don't think the US Supreme Court does, either. IIRC, you can't be prosecuted in Federal court after being tried for the same charge in state court. That's one reason Congress passed the Civil Rights Act of 1964 -- it permitted the Federal government to prosecute on charges of violating someone's civil rights for the same act the perpetrators were acquitted in state court on charges of assault or murder. Most recent example of that is the Rodney King case -- the police were acquitted of assault in state court but convicted of civil rights violations in Federal court. And having grown up in the 50's and 60's during things like the Goodman/Schwerner/Chaney murders, I'm not conviced that's a bad thing.
 
Obi Heed Kenobi said:
I see why you say it doesn't make sense, but what are we supposed to do if a crook shoots a guy in the head, and the guy lays in a coma for 5 years, and then dies from only the bullet in his brain? Just let the crook off because there's time that's passed?
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I think such issues need to be addressed by the defendant and defense counsel. If the assault was such it could result in death then it should be considered during a plea bargain. But, ONLY during a plea bargain.

If the state is forced to go to trial and the defendant never takes responsibility, any further developments should be fair game if it results in one or more criminal complaints. But even if not addressed during plea bargaining, a plea deal is made in good faith on both parts that should be the end of any action against the defendant.

Once a plea agreement has been made, it has until the moment it is accepted by the court. It doesn't always work that way but that should be the moment the prosecution is bound by the agreement. Only a mitigating circumstance coming to light can allow for a change to reduce or dismiss the charge. Once accepted by the court, the level or number of counts cannot be increased.

I refer to the date of acceptance by the court as that would be the binding date for the plea. If left until sentencing, then too much flexibility remains due to the court's schedule. This would be akin to the offense date being the basis of what laws were in effect at the time of offense. Were it left to the date of conviction, it's a certainty some (not all) prosecutors would delay matters knowing a stronger sentence option will later be in effect.

Don't get me wrong. I'm not saying one should get away with murder, literally. But, when a plea bargain is made it should be adhered to. I really fault the prosecutors for not requiring a longer sentence to start with. They created this problem and now want to fix it by violating a properly negotiated deal with poor terms some six years later. They threw a small number at the defendant and he jumped at it. I'd expect him to.

The prosecutor got a conviction notch on their belt. Given such a short sentence for injuries obviously bad enough to ultimately result in death, that notch is apparently all they cared about, justice be damned.

It seems to me this could have been a charge of attempted felony murder. He was illegally firing a weapon with reckless disregard. A near-fatal injury occurs. I don't know the laws in North Carolina but had they gone after him with more appropriate charges, he'd still be in prison serving four to six times what he did receive.

In looking at the article on drunk driving resulting in death... the drinking is begun by a conscious act to take the first drink. That in no way should relieve one of responsibility of their actions beyond that point. Eight years for actions that led to the loss of two lives and injury to several others? Sorry, that's a crock.

About 1995 or 1996, a Gwinnett County cop had just written up a DUI driver and the driver was hauled away by another unit while the arresting officer waited with the arrestee's vehicle to be towed. While sitting there, along comes another drunk driver and hits the police car. The officer was killed.

Did the legislature act with stronger penalties? Hardly! A third DUI is only an aggravated felony resulting in a mandatory 120 days incarceration, $1000-5000 in fines and revocation of license for five years with possible reinstatement after two years. No work permit for driving is allowed for the first two years.

I'm of the opinion, a second and subsequent DUI should be a felony with a mandatory six-month jail sentence to be increased two-fold for each subsequent offense. The offender will suffer mandatory license revocation for a minimum of five years (also increased two-fold for subseqent offenses) with no chance of a work permit.

Should there be some chance of a fifth offense, beg for mercy. If one has made it to that many offenses, they are not safe to be around. I can't fathom that occurence but it DOES happen.

If death and/or injury occur as a result of DUI, those charges should be aggravated and a mandatory minimum should be in place for even a plea bargain; something more on par with twelve years per count. In that woman's case, it would be 24 years for the deaths alone.

Is that too harsh after taking a life because you wanted to have a drink?

Oh, I'd be in favor of a federal law that mandates states verify the existence of a pilot certificate after a DUI conviction. If one exist, documents showing conviction should automatically be forwarded to AMC-700. I would be just as in favor of that same statute mandating revocation of a pilot certificate to be a minimum of any revocation period of a driver's license... if not for life.
 
KennyFlys said:
I'm of the opinion, a second and subsequent DUI should be a felony with a mandatory six-month jail sentence to be increased two-fold for each subsequent offense. The offender will suffer mandatory license revocation for a minimum of five years (also increased two-fold for subseqent offenses) with no chance of a work permit.
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While I'm generally in favor of increasing penalties for DUI offenses, it seems to me the escalation should be based somewhat on the level of intoxication and the consequences. Someone nabbed at a DUI sweep who's BAC is .06 (I think that's the threshold in some states), when no impaired driving was evident shouldn't be treated the same as another driver found in his car with a utility pole imbedded in the grill and a BAC of 2+. I can see how the former could occur without a the accused's knowledge simply by imbibing on an empty stomach or taking a single drink at a private gathering where the drinks might be mixed a bit heavier than typical.
 
lancefisher said:
While I'm generally in favor of increasing penalties for DUI offenses, it seems to me the escalation should be based somewhat on the level of intoxication and the consequences. Someone nabbed at a DUI sweep who's BAC is .06 (I think that's the threshold in some states), when no impaired driving was evident shouldn't be treated the same as another driver found in his car with a utility pole imbedded in the grill and a BAC of 2+. I can see how the former could occur without a the accused's knowledge simply by imbibing on an empty stomach or taking a single drink at a private gathering where the drinks might be mixed a bit heavier than typical.
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I understand your point. I can see perhaps some consideration by the sentencing judge for increased levels beyond the legal minimum or other actions such as wrecked vehicles or injury to others.

But, there has to be the legal minimum. I wouldn't mind if it did drop down to .06 BAC on the national level. Though, I think all that will happen is increase convictions... IF caught. Far too many now escape by barely making it home without incident and a subsequent traffic stop.

As far as drinking on an empty stomach, one should be aware of what they are capable of or in this case, incapable of handling. It is said "ignorance is no excuse" in defense of violating the law. Is it excusable to say you were not aware how alcohol would affect you? It surely doesn't take a genius know alcohol will have some effect, even if you're uncertain as to how much at a given level of usage.
 
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