Thursday, November 10, 2016
The District of Columbia Court of Appeals has affirmed a second-degree murder conviction on the basis of the "urban gun battle" theory of causation.
Because the decision relies on a 2005 court precedent, there is an impassioned concurrence and call for en banc consideration by Associate Judge Easterly
At the time Michael Jones was shot and killed, there were people around him shooting guns at each other. Bernard J. Fleming may have been one of the individuals shooting at Mr. Jones and his companions. No witness ever saw and no videotape ever showed Mr. Fleming shooting a gun, and he was never found in possession of a weapon. He was, however, seen with another man up on a second-floor balcony where police found bullet casings and a bullet; he was also seen before the shooting bringing an object—possibly a gun—to the balcony and removing an object when the shooting was over; and he could have hidden two guns later discovered by the police under a stairwell in the building, one of which might have been used in the shooting. But even if Mr. Fleming possessed a gun and was one of the persons shooting at Mr. Jones and his companions, no evidence connected any shot he might have fired to the shot that killed Mr. Jones. The bullet retrieved from Mr. Jones’ body was so fragmented that it could not provide an evidentiary link to the shooter. Moreover, evidence showed that Mr. Jones was shot in the back of the head, making it possible that he was shot by Mr. Hamlin.
Nonetheless, Mr. Fleming was held accountable for Mr. Jones’ death. He was convicted of second-degree murder while armed based on the "urban gun battle" theory of causation that this court announced in Roy v. United States, 871 A.2d 498 (D.C. 2005), i.e., the proposition that a defendant who exchanges gunfire with another individual "proximate[ly] cause[s]" any death that results, whether or not the defendant fired the fatal shot, id. at 506. I assume the division is bound by this court’s decision in Roy to uphold Mr. Fleming’s conviction. But I cannot vote to affirm without commenting on the dangerous incoherence of Roy’s "causation" analysis. In truth, it dispenses with causation altogether, and, by thus reducing the government’s burden of proof for murder, captures in its net individuals who can only be proved to have committed far less serious crimes. Roy was wrongly decided. Moreover, I cannot sign on to the division’s opinion applying Roy, which effectively expands its illogic. I write separately to explain the flaws with Roy’s causation reasoning and to call for en banc review to reject Roy’s urban gun battle theory of guilt for murder.
Judge Easterly views Roy as creating a new crime
Courts may feel "pressure" to somehow find criminal liability in cases "where the culpable consequence of [the] defendant’s action is some unintended but voluntary action of another," but Professor Kadish warns that "[t]here is no way to extend liability in these cases . . . in a way that does not require a significant departure from doctrinal premises." Kadish, supra, at 399–400, 402–03. This court’s urban gun battle theory is a case in point. With no real causation requirement (and no complicity requirement), this theory is unmoored from established common law principles of criminal culpability.
In effect, the court in Roy made a policy choice to create a new crime that allows an individual to be convicted of murder without proof that he caused (or was complicit in) a murder. If the objective was to ensure that certain homicides beget at least one murder conviction, it is antithetical to another "cardinal principle of Anglo-American jurisprudence that, in Blackstone’s immortal words, better ten guilty persons should go free than one innocent person be convicted." United States v. Greer, 538 F.2d 437 (D.C. Cir. 1976) (citing 4 William Blackstone, Commentaries on the Laws of England 352 (1769)). Indeed, the creation of this new crime leads to a perverse result: in contrast to cases where the government shoulders its burden to prove the identity of the killer, in urban gun battle cases, the government can successfully prosecute more people for murder based on far less proof. But the biggest problem with this court’s decision in Roy is that we exceeded our judicial role. It is not our job to create new crimes. We do violence to the law when we purport to apply the common law doctrine but in fact act as a legislature. Before more damage is done,24 we need a course correction. Roy should be overturned by this court en banc, not revised and effectively extended by the panel in this case.
The opinion is authored by Associate Judge Glickman and joined by Associate Judge Fisher. (Mike Frisch)