The Professor
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- Mar 4, 2011
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There is something in the law called the Delayed Death Exception of double jeopardy. Here is how one source describes it:
“A Bronx County judge ruled that double jeopardy did not apply to a murder charge against a defendant who had already spent 11 years in prison for attempted murder for the same shooting. The man he was originally convicted of shooting survived, but the bullet remained in his spine. 19 years after the defendant was released from prison, the man he was convicted of shooting suffered an infection due to the bullet and died.
“Although the exclusion from the double jeopardy rule applies only to murder cases, caution should also be taken in other cases. A prosecutor might bring a future charge, arguing that newly discovered victims, damages, or acts were part of a separate course of conduct from the original charge and not subject to the double jeopardy rule. Even if a judge later disagrees, there is still a risk of arrest and having to defend the new charges. To eliminate the risk of future prosecution, the plea bargain should explicitly state, in writing or on the record in open court, that it covers all acts and results arising from the same course of conduct.”
All About Double Jeopardy in Delayed Death Murder Cases
In one case, defendant Ronald Latham pleaded guilty to attempted murder and was sentenced to 7 ½ – 22 ½ years. One month later his victim Marie Shambeau had a stroke and died.
“Soon after, the Rensselaer County District Attorney's office indicted Mr. Latham on a charge of second-degree murder, arguing that his case fit the delayed-death exception to double jeopardy law. Second-degree murder carries a minimum sentence of 25 years to life.
“Mr. Latham challenged the indictment, arguing that a 1983 Court of Appeals ruling said that a person convicted of a lesser crime could be later charged with murder only if the first conviction was for a "nonhomicide offense." Attempted murder, he contended, is a homicide offense.
“A lower court agreed, and dismissed the indictment. But it was reinstated by the Appellate Division. Today the Court of Appeals said that attempted murder is "by definition a nonhomicide offense."
Mr. Latham's lawyer, F. Stanton Ackerman, said he might appeal the case to the United States Supreme Court. If he does so, it would further delay renewed prosecution of Mr. Latham, who is in Attica state prison.
Court Upholds Murder Charge if Death Follows a Lesser Plea
In reviewing SCOTUS decisions on double jeopardy, I found none that addressed this situation directly; however, I believe the Court would find the Delayed Death Exception does not violate the protections afforded by the Constitution. The Fifth Amendment provides that no one shall be put in jeopardy twice for substantially the same crime. I doubt the Court would find that attempted murder and murder are the same.
It may seem unfair to allow a defendant to be charged with murder after he has already been convicted of attempted murder; however it would also be unfair to prohibit the prosecution from pursuing murder charges. Prosecutors must try attempted murder cases as quickly as possible while witnesses are available and memories are fresh. They should not be barred from later charging the defendant with with the crime of murder which no one know would occur when the first case was tried.
I think the only real question would be, would the judge give the defendant credit for any time served towards the punishment of his murder sentence based on the time he did for the previous charge? I think it would come down to whether the judge would feel if in the original trial if the defendant was charged with more than one crime, he'd be given consecutive or concurrent sentences, however, this judge has the benefit of knowing if the defendant turned his life around and became a contributing member of society after serving his first sentence.
He should be given credit for time served, which would add to the mitigation of the double jeopardy issues.
I agree. Unfortunately, since this specific matter has never been litigated I cannot cite any case law to support what we both know is a matter of fundamental fairness. The confusing and sometimes contradictory laws involving double jeopardy fail to establish an authoritative legal theory concerning the applicable punishment in this unique situation. The best I can offer is what I believe to be a valid legal argument based upon a combination of existing laws and common sense.
It is impossible for someone to be guilty of both attempted murder and murder since the crimes are mutually exclusive . In all murders there is an attempt; however, an unsuccessful attempt results in the charge of attempted murder and a successful one results in a charge of murder. When the victim dies immediately, the murderer is never also charged with attempted murder. The attempt – which is inherent in every murder charge – is merely a required element of proof. The same principle should be applied in delayed death cases.
When a person is convicted of attempted murder and the victim later dies as a result of criminal act, the attempted murder becomes a part of the subsequent murder charge. Any time served must therefore be included in the punishment.
Even though I can offer no case law or established legal theory to support my position, I am convinced that every court would include time already served in its final sentencing. If the law did otherwise, then, as Mr. Bumble (a character in Oliver Twist) said, “the law is an arse.”