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When Death Comes Later, Can a Murder Charge Stick?

By Robin L. Barton

Suppose an individual attacks a person, who’s seriously injured but doesn’t die. The individual may initially be charged with aggravated assault or attempted murder. If the victim later dies from his injuries, the prosecution may then charge the defendant with murder or manslaughter, depending on the circumstances.

In typical cases, the length of time between the defendant’s criminal actions and the victim’s subsequent death isn’t very long, ranging from hours or days to perhaps weeks.

But what if the victim of an assault doesn’t die until years later? Is it still legal to charge the defendant with murder at that time?

This issue recently arose after the death of James Brady. In 1982, Brady, the White House press secretary at the time, was shot in the head and seriously wounded during  John Hinckley Jr.’s attempt to assassinate President Ronald Reagan.

Hinckley was found not guilty by reason of insanity of federal and District of Columbia charges, including attempted assassination of the President of the United States, attempted murder, assault and weapons charges. He remains a patient in a mental hospital in Washington, DC.

After Brady passed away on Aug. 4, 2014, the Virginia medical examiner ruled his death a homicide, tying the cause of death to the gunshot wound he suffered more than 30 years earlier.

In January 2015, federal prosecutors announced that they wouldn’t pursue new homicide charges against Hinckley. U.S. Attorney Ronald Machen said that Hinckley wouldn’t be charged partly because prosecutors are barred from arguing now that Hinckley was sane at the time of the shootings.

The Brady case is a high-profile example of so-called delayed murder charges—but such cases are more common than you might think.

For example, sometime in the late 1950s, Antonio Ciccarello was stabbed in the back on the streets of New York’s Lower East Side as he was on his way to work. He went to the hospital but never filed a police report.

When Ciccarello died in September 2014, the medical examiner determined that his death was connected to the stabbing more than 50 years ago. The police have opened a homicide investigation and could bring murder charges even after all these years. But with no leads, evidence or witnesses, it’s unlikely that the investigation will lead to any arrests.

It wasn’t that long ago that homicide charges in cases such as these couldn’t be brought.

The common-law rule was that homicide charges could be filed only if the victim died within “a year and a day” from the initial attack. For instance, another reason murder charges weren’t pursed in the Brady case is that D.C. courts before 1987 didn’t allow homicide cases to be brought if the victim died more than a year and a day after the injury.

The year and a day rule was necessary because, at the time, forensic science wasn’t capable of establishing cause of death to any degree of certainty beyond that time frame.

But the rule has been abolished in most states, while others have extended the time limit. California, for instance, has a rebuttable presumption that a killing isn’t a homicide if the death occurs three years and a day after the initial criminal assault.

In July 2001, the U.S. Supreme Court decision in Rogers v. Tennessee upheld that state’s abolishment of the rule. The defendant stabbed James Bowdery, who died some 15 months later. Rogers was convicted of second degree murder. He appealed, arguing that the common law “year and a day rule” barred his conviction.

In affirming Roger’s murder conviction, the Tennessee State Supreme Court abolished the year and a day rule, finding that the reasons for it no longer existed. The U.S. Supreme Court agreed, stating that “as practically every court recently to have considered the rule has noted, advances in medical and related science have so undermined the usefulness of the rule as to render it without question obsolete.”

I appreciate the rationale for permitting delayed homicide charges. After all, if someone shoots, stabs or otherwise injures a person and that person subsequently dies, should it matter if that death occurs an hour, a day, a month or even years later?

But it still troubles me that someone could be prosecuted for murder when there’s a decades-long time gap between the assault and the subsequent death, especially if that person has already pleaded guilty or been convicted and served his or her time.

It’s important to note that double jeopardy doesn’t bar delayed murder charges. That’s because the crime the defendant was initially prosecuted for—assault, attempted murder, etc.—is different from the subsequent homicide charges he faces later when the victim dies.

So are we punishing people for their actions or the results of their actions—no matter how remote?

The criminal law does, in fact, address the issue of remoteness. To prevail in a case of delayed murder charges, the prosecution must connect the dots and prove that the initial assault or injury ultimately resulted in the victim’s subsequent death.

It’s similar to a concept in civil tort law called “proximate cause.” The idea is that if the link between negligent or intentional misconduct and injury to a plaintiff is too attenuated, the defendant won’t be held responsible for it.

Here’s how the concept works: Say I run a red light and hit another vehicle, injuring the other driver’s back. That driver could sue me for damages, arguing that my negligent driving caused his back injury—and he’d likely win.

But suppose the driver must go to physical therapy to recover from the back injury I caused. While at the therapist’s office, the driver sits in a chair that collapses, causing him to fall to the ground and break his arm.

Can he sue me for damages related to his arm injury?

The driver would argue that “but for” the back injury he suffered at my hands, he wouldn’t have needed to go to physical therapy and thus wouldn’t have sat in the defective chair. However, this argument is unlikely to be successful because the link between my negligent driving and the collapsing chair is too remote to hold me responsible for the driver’s broken arm.

The application of the concept of proximate cause to delayed murder charges is discussed in detail in an article in the American Journal of Forensic Medicine & Pathology.

The article explains that in delayed deaths, there typically is an interposing immediate cause, such as pneumonia, which may result from natural diseases as well as due to an injury. So one must link the death to the immediate cause and link the immediate cause to the initial injury.

Both links must be made to a reasonable degree of medical certainty to certify the death as a homicide. However, certification by a medical examiner that the death is a homicide isn’t the same as the determination by a judge or jury that the accused is guilty of a homicide.

Proving beyond a reasonable doubt the connection between an assault and a subsequent death can be difficult, especially if the period of time between these events is lengthy.

For example, in 1966, William J. Barnes shot a Philadelphia police officer, Walter T. Barclay Jr., leaving him paralyzed. Barnes served 20 years in prison for the crime. In 2007, Barclay died from a bladder infection, a condition from which paralyzed individuals commonly suffer.

The district attorney pursued murder charges against Barnes, arguing that he was to blame for the infection that ultimately killed Barclay. But the jury acquitted Barnes. The prosecution had failed to prove that there was an unbroken connection between Barnes’ shooting of Barclay in 1966 and his death 41 years later because Barclay had reinjured his spine several times since the shooting, and hadn’t gotten adequate medical care.

So to answer my own question: Yes, we punish people for the consequences of their actions. But protections have been built into the criminal law to protect defendants from punishment for those consequences that are too remote or disconnected from their criminal conduct to justify additional prosecution.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.


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How to Restore Trust in the Police

By Anne Milgram and Frank Straub

We have seen that the police can be remarkably adept and creative when it comes to fighting crime. What would it look like for law enforcement to deploy that creativity and innovation to build better relationships with the citizens and neighborhoods they serve?

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Whose Justice Is It?

By James M. Doyle

The phrase “criminal justice system” is everywhere, but no one working in—or writing about—the system day-to-day spends much time debating what sort of “system” this system might actually be.

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Should the AG Look Outside BOP For Its New Director?

By Margaret Colgate Love

The bottom line is this: Appointing an outsider by itself is not going to solve any of the institutional problems that in recent years have limited Bureau of Prisons' capacity and will to innovate. As long as BOP is housed in an agency whose criminal justice agenda is influenced if not determined by prosecutors, these problems will persist no matter how stellar the individual selected as its leader.

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Obama Focuses on Drug Felons: What About the Rest of Us?

By Jeremy Busby

President Barack Obama should be commended for his recent attempts to highlight the inequities of the criminal justice system.

On July 16, he became the first sitting U.S. president to visit a prison, a federal facility in El Reno, Oklahoma.  And he has called for the release of people serving long sentences for non-violent drug crimes.

But what about the rest of us, including those serving time for violent crimes—and especially those who might be innocent?

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