FELONY MURDER

“I will set you free.”

Exodus 6:6

For a criminal defense attorney, the story of Passover, the freeing of the Jewish slaves from Egypt, has to be inspiring.  Isn’t the unspoken and at times spoken motto of our profession “Let my people go?”

The analogy fails, most of the time, because we represent clients who usually have done something wrong that our laws say merit punishment. The Jews on the other hand, were in bondage.  But this question, at its core, is the examination of the unjust bondage of people.

The federal government and the justice department have now, slowly, begun to recognize the unjust incarceration of tens of thousands of low-level drug offenders, the victims of the 1980’s war on drugs.  Our prisons are littered with harmless inmates, many of whom did nothing more than make the mistake of agreeing to take a package for someone for a few dollars. These people- mothers, fathers, grandparents- are serving draconian sentences of decades. The tide is beginning to turn.

Not so for Florida’s felony murder law.

In Florida, a person can be convicted of first-degree murder two ways. There is the traditional way of intentionally killing someone with premeditation, and there is the untraditional way of being involved in a different crime- a felony, in which someone is killed, almost always unintentionally. 

The crimes are different. By definition the type of person is different- the cold hearted killer versus the person being in the wrong place at the wrong time, but  the penalties are exactly the same: execution or life in prison without the possibility of parole.

For prosecutors, the felony murder rule greatly simplifies their burden of proof. Premeditated first-degree murder contains an element of proof- planning and premeditation that is often hard to prove. But if, before, or during the murder, the defendant took something, even of small value, then the prosecutors can charge both premeditated murder and felony murder, and the jury can choose between whatever theory they want. The prosecution  does not need to prove premeditation in felony murder cases. The penalty is the same when the defendant is convicted; he or she is treated as if they had committed the worst possible crime- premeditated murder, and sentenced accordingly.

I recently concluded the representation of a young man, who at age eighteen was accused of going with four other young men (their ages ranging between sixteen and eighteen at the time) and burglarizing the house of a wealthy athlete.  My client was not the person who brought the gun and was not the person who fired the weapon, but my client was facing just as much time –life in prison without parole- as the person who fired the gun.

The case was a tragedy in every sense of the word. A young man with a family was killed in the prime of his life. He was not supposed to be home at the time of the burglary, and a tragic set of circumstances put him the position of being unable to call 911 and having to defend his family, which resulted in one errant gunshot that hit him in the leg and caused his terribly tragic death.

My client spent seven years in pre-trial detention contemplating his role in that one horrible night that took a life, and ruined several. My client had a negligible juvenile record. He came from a broken home, but with a mother who loved him dearly and did her best. He was a high school athlete, and had fathered a child before he was arrested. In jail he matured from a teenager into a young man; thoughtful, introspective at times, and almost uncomprehendingly frightened at the prospect of the  loss of most of the rest of his life.

If we tried the case, we risked losing the felony murder count, and the judge, one of the best I have ever had the pleasure of knowing, would be forced to sentence him to life in prison without parole. If there was a deal to be made, it would have to be made with the prosecution, because in Florida, only prosecutors can reduce charges and waive minimum mandatory sentences.

The prosecutor was and is, in my opinion, the best lawyer in his office. He is fair and honest and thoroughly prepared. He would have every advantage at trial and I couldn’t count on him making any mistakes. Behind the prosecutor was the family of the deceased, justifiably aggrieved at the loss of their son. I am a father. I would feel the same way. 

But I couldn’t negotiate this case based on what was fair. I couldn’t involve the wise and experienced judge into the negotiations, getting his input on what was a fair sentence, because Florida’s legislators have rendered judges mostly powerless in sentencing defendants in cases where there are minimum mandatory sentences.

So I had to deal with the prosecution, which meant I was really dealing with the family of deceased,  and the prosecutors were middle-men.  Not to cheapen this process or the lives and pain of all involved, but imagine buying a car where every time you make an offer the salesman leaves to go and “speak with his manager.”  Any offer I made to resolve the case had to be cleared with the family of the deceased. So now I was dealing indirectly with people whose emotions were justifiably dictating their feelings. I don’t begrudge for one moment the pain they felt or their hatred of my client, but should they have been the ones making the decision in this case?

Because that’s what Florida’s felony murder laws have done. The judge is powerless to waive the minimum mandatory life sentence. Only the prosecution can do that. And prosecutors won’t make an offer to resolve a case that the next of kin won’t approve.

So to defend my client and work to have him justly sentenced for his role in this case,  I am indirectly dealing with the people whose emotions are justifiably inflamed. Powerless to stop the death of their loved one, they now hold almost all the cards over what the punishment should be. Is that what we want? Victims deciding punishment? The role of a judge reduced to a bystander. The role of a prosecutor reduced to a conduit of plea negotiations. The roles of professionals reduced, while the roles of non-professionals and their emotions dictate what the final sentence will be.

I am not an expert, but isn’t this what Sharia law requires? An eye for an eye? Hands chopped off for stealing, people lashed in a public square for premarital sex or dancing in public.

Whether or not we want this system, that is the system we have. I do not advocate for silencing victims or next of kin. They should be heard. But they are the least able to arrive at a fair and just sentence, and yet they are currently in many cases the final arbiter of such sentences in cases like these.

Nobody won here. I did my job with my trial partner and we saved my client’s life. He will not spend the rest of his life in prison. But in my opinion his sentence is ten years more than it should have been. And if I am wrong, then I would rather have a judge make the final decision and tell me I am wrong, then have the sentence issued de facto, by the family of the deceased.

I practice a profession and I write this blog about my profession. I   Perhaps many non-professional people who have suffered the murder of a loved one will think very critically of this essay. “My son is dead” they will say, “your client isn’t. He can still call his mother.” And they are right. Their pain is never ending and they have the right to mourn their loss and  hate the people involved. I can’t ever challenge their feelings nor would I. They are, in a word, “entitled” to feel the way they feel.

Are we a State that is ruled by law and that sentences its citizens in a rational and fair way? Or do we believe that there should be no fairness in sentencing? That those who are involved in a murder, in even the most tangential way, should suffer the ultimate penalties?

Right now, from my perspective, I do not like the answers I am seeing to those questions.