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The danger of not being first: When prosecutors learn off co-defendants

January 23, 2012

2. Law, 6. Trial, 7. Post-Trial

The danger of not being first: When prosecutors learn off co-defendants

You’re going to trial.  Would you rather a top-end sentence of 40 years or Life?  As an outsider, which crime do you think would be harder to prove – the 40-year max or Life?

I was researching a possible appeal this week.  A person was wrongfully killed about 20 years ago by three men.  The alleged leader in the act fled the jurisdiction.  Took four years to find him.  The remaining two actors were arrested and tried.

Some core facts are that an alleged drug transaction wasn’t completed.  The to-be decedent took some money but never came through with the drugs as promised.  The three to-be defendants found him a few days later and beat him severely.  Not content with the parking-lot beating, they tossed him into a car and continued the beating.  I don’t believe the next portion of the story, but allegedly the leader of the three dropped off the other two, then drove away with the beaten man.  An hour later the leader came back alone.  The beaten man was found still alive the following morning, but he died during surgery to relieve a cranial blood clot.

The two defendants that were arrested shortly after the beating were charged, in important part, with Murder 3.  In Pennsylvania, we have Murder 1, 2, and 3.  Here’s the statute:

§ 2502. Murder.
(a) Murder of the first degree.-A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.-A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree.-All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

Why not Murder 1 or 2?  From the facts, we can ascertain that the defendants intended to beat the victim, but concluding beyond a reasonable doubt that they intended to kill him is a bit of a stretch.  There was no deadly weapon involved such as a baseball bat.  With the 3d defendant MIA, the story of the other two defendants is not contradicted in as much as they claim they were dropped off after beating.  That kills Murder 1.  What about Murder 2?  Ah, the prosecutors had not yet gone to school.  More later.

A joint trial of the two defendants ensued.  The conspiracy and other charges were acquittals; the Murder 3 charge was hung.  All sorts of motions and appeals flew before the re-trial on Murder 3.  The first of the two co-defendants was re-tried and found guilty of Murder 3.  He got 4 to 12 years.  Before the appeals were resolved for the 2d co-defendant, the alleged leader of the attack was found.

The prosecutors had to figure out how to charge him.  They had two trials under their belts.  The Murder 3 conviction was not easy.  Some witnesses were questionable.  One was drunk as she watched the beating from afar.  Another merely saw the scuffle from a distance and didn’t know any of the participants.  One eyewitness even identified a defense attorney as one of the men beating the dude.

And the prosecutors have another issue.  Supposedly, they now have the leader of the assault.  This is where maximum sentencing comes into play.  Murder 3 tops out at 40 years; Murder 2 is mandatory minimum Life.

Let’s assume that the facts as alleged by the witnesses and other two participants are correct.  The victim is alone in a parking lot.  A man approaches him.  A car pulls in and two men exit.  All three proceed to beat the guy for about five minutes.  Two of them then toss the guy into the backseat and continue to beat him.  The 3d man gets behind the wheel and drives away.  The driver drops off the other two guys, and drives away with the victim.  The driver comes back alone about an hour later.  The victim is found the next morning on the side of the road.  He dies on the operating table.

How do you work with these facts?  Stop being blinded by the fact that the guy died.  Assume he didn’t.  He was beaten so badly that Agg Assault is easy.  Ah, but now the very best part:

§ 2901. Kidnapping. (a) Offense defined.–A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:

(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any governmental or political function.

Did he remove him a “substantial distance”?  “Substantial” is the key.  Physical distance is one thing, and quality of the distance is another.  See here for more discussion.  The testimony is that the guy was continued to be beaten after he was put into the car – that’s (3).  The testimony is that they committed Agg Assault – a felony – in the parking lot.  Driving away with the victim covers (2).  Kidnapping seems easy enough to prove.

Now layer in the resulting death and bounce up to the Murder 2 cites above:  “A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.”

Check the appropriate felonies in the Murder statute:  “Perpetration of a felony.”   The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

And check the sentencing – mandatory minimum Life for Murder 2 … way more than topping out at 40 years.  It also avoids the Sentencing Guidelines, which is why the first dude got just 4 to 12 for Murder 3.

So the prosecutors went to school through the first two trials.  The trial of the alleged leader focused only on the beating and kidnapping.  The beating was eclipsed by the death.  The death was folded into the kidnapping as Murder 2.  Mandatory Life.

Good job by the prosecutors  Smart move.

The lesson, of course, is to watch your co-defendants.  If you’ve got a severed trial, don’t get too wrapped up in mirroring their motions.  Get to jury selection.  You can always object to evidence at trial to set up your appeal.  But don’t underestimate the Dark Side.  They are capable of learning.

And in this case they did, much to the detriment of the alleged leader.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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