Why the Felony Murder Allegation against Jodi Arias is Nonsense
The government has charged Jodi Arias with two separate counts for first degree murder. The first count is premeditated intent to kill murder. I have already discussed this charge at length (see "Jodi Arias: Has the Government proven Murder One?"). Also, I have discussed Ms. Arias' self-defense claim and the prosecution burden to disprove self defense by beyond a reasonable doubt (see "Jodi Arias claims self defense, or is it Burning Bed?").
That, for the moment, leaves the felony murder charge, which is count two in the indictment. At common law, felony murder meant that someone could be charged for murder even if they never intended to kill a person, so long as the a death was the foreseeable result while the defendant was committing a dangerous felony. The classic example of a felony murder is when a kidnap victim dies from a heart attack while stuffed in the trunk of a kidnapper's car. Thus, even though the kidnapper never intended to kill his victim, he is still guilty of felony murder because the death of his victim was a foreseeable consequence of the underlying predicate felony, kidnapping.
Another example is when during a bank robbery the police shoot and kill a bank robber's accomplice. Even though the bank robbers certainly never intended the police to kill one of them, that result was foreseeable, and thus felony murder. Other common law predicate felonies included rape and burglary. Assault is not a predicate felony in Arizona for the felony murder rule.
The important point with the felony murder rule is that the predicate felony is different from intent to murder, depraved indifference murder, manslaughter, or any other homicide charge because the goal of the felony murder rule is to deter the predicate felony itself, while non-felony murder homicide and murder laws deal with homicide charges directly.
As most of you are aware, the government has charged Ms. Arias with felony murder, with the predicate felony being burglary. The important point here is that while even though common law burglary required breaking and entering with the intent to commit a theft therein, in Arizona, which follows the model penal code, defines burglary more broadly as (see "Arizona Revised Statute ARS 13-1506 and 13-1507):
Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein; and A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.
The prosecutor does not allege Ms. Arias entered into Travis Alexander's home with the intent to kill him or commit any felony, for that matter, at the moment of entry. How could he when all the evidence shows Mr. Alexander invited Ms. Arias into his house? The evidence is clear she spent at least 8 hours in his house, and during that time together they had sex multiple times.
Instead, the prosecutor's argument is that felony murder applies because at some point Mr. Alexander revoked permission from Ms. Arias to be in his house, and at that point, she was "remaining unlawfully in... a residential structure". This is where things get quite silly for the government's felony murder allegation: if in fact at some point Jodi Arias was still in Mr. Alexander's house without his permission (we can call that point T1), what felony was Ms. Arias' intending to commit at T1? If she was intending to kill him at T1, then that would be the exact same thing as count one, murder in the first degree intent to kill, premeditated murder.
The defense filed a motion to dismiss the felony murder charge, stating quite correctly the allegation makes no sense. In response, Judge Stephens ruled Ms. Arias' intent at T1 could have been assault, not intent to kill Mr. Alexander. I believe that ruling is in error because of something called the merger rule. To count any death that occurred during the course of an assault as felony murder would obliterate the distinction between assault and murder. And even more importantly, there would be no distinction between second degree depraved indifference murder and first degree intent to kill murder.
If I shoot my gun at a crowd without intending to kill anyone, but someone dies anyway, I am guilty of second degree depraved heart murder. If I shoot my gun at a crowd with the intent of killing someone, anyone I am guilty of first degree intent to kill, premeditated murder. That has been English common law since the time of the Magna Carta.
Under the government's felony murder allegation, both set of circumstances would result in the exact same conviction, and in the process it would overturn almost a thousand years of Anglo-American law. The facts in this case, while interesting, are not unsual. I have no doubt thousands of similar cases have occurred since the inception of the felony murder rule centuries ago. If, in fact, fact Ms. Arias' conduct fits within its application, why then has the prosecution been forced to stretch the felony murder rule to such seemingly metaphysical extremes?
The prosecution is getting very clever in this case, and that concerns me. It is not the role of prosecutors to be clever or experiment. It is the role of prosecutors to present the evidence plainly within the clear meaning of the law. If there is a problem with the felony murder rule, or any other law for that matter, which makes the law too lenient, then it is up to the legislature to rewrite the law and fix it. Our separation of powers is clear that legislatures write laws and prosecutors apply it squarely.
The most basic element of due process is we do not have ex post facto, or retroactive, laws, which are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3. What the government is trying to do with its felony murder allegation against Ms. Arias is say committing second degree murder in the home of a victim is really first degree murder. That may in fact be a good law, but if so, it is up to legislature to make it explicit. It is not for prosecutors to make new law on their own when it suits them.
P.S. What I mean by merger rule is that the predicate underlying dangerous felony, the dangerous felony of felony murder, must be different from the actual murder charge itself; that is why assault is not a predicate in felony murder. If it was a predicate, then every murder would automatically be felony murder because every murder involves an assault. In other words, proving the murder would automatically prove the assault as the evidence is circular. And thus, there would be no degrees of murder charges (first degree, second degree) as there are now.
The problem in this case is that when Arizona changed the common law definition of burglary from "intent commit a theft therein" to "intent commit any felony therein" that opened up the door for the predicate felony to include any felony falling withing the scope of burglary, including assault. That means while felony murder cannot have assault as the first degree predicate, if that first degree predicate felony is burglary, then a second degree predicate felony (or predicate felony within the first predicate felony of burglary) could be assault. By all rights, however, the merger rule should exclude that absurd scenario.
You can see the Court's order on this specific point here. In the order the Court relied on:
State v. Moore, 222 Ariz. 1, 14, ¶ 61, 213 P.3d 150, 163 (2009). In that opinion, the Arizona Supreme Court specifically rejected the argument that felony murder cannot be predicated on a burglary based on the defendant’s intent to murder. It did so, in part, based on State v. Miniefield, 110 Ariz. 599, 601, 522 P.2d 25, 27 (1974), in which the Court noted that the felony murder statute “does not draw a distinction between one who intends to kill another by fire and one who only intends to burn down a dwelling house and accidentally kills one of the occupants.” Id. See also State v. Kuhs, 223 Ariz. 376, 224 P.3d 192, 198, ¶ 23, n.4 (2010) (noting that it rejected the defendant’s argument in Moore that “one cannot commit felony murder when one committed burglary in order to commit murder”).
In other words, from what I understand of the Court's order, proving intent to kill with premeditation would make Ms. Arias guilty of both count 1 intent to kill and count 2 felony murder. That is all fine, and very academic. However, I did not see anything in the Court's order regarding the merger rule. That point is significant because according to the very same minute entry the government's contention is that assault was the underlying predicate felony of the burglary:
The State argues the defendant’s status as an invited guest changed when the defendant stabbed the victim, thus committing an aggravated assault. According to the State’s theory, the defendant was no longer an invited guest for purposes of all wounds inflicted after the first wound. At that point, Defendant remained unlawfully in a residential structure for purposes of committing a felony. In addition, the State argues the evidence establishes the defendant entered the victim’s home with a gun and knife for the purpose of committing the assault.
What "the defendant was no longer an invited guest for the purposes of all wounds inflicted after the first wound" actually means I have no idea, or for that matter, I doubt anyone really does. And it is a perfect example of what I mean by the government stretching legal logic to metaphysical absurdities.
An interesting point about this minute entry is that the government seems to have conceded Ms. Arias did not have premeditation, or intent to kill Mr. Alexander. Aggravated Assault, which is the government's underlying felony for the burglary predicate, is intent to injure, not kill. If the government believes, as they told the court in their motion, that they believe Ms. Arias committed a burglary by having the intent to only harm Mr. Alexander after permission to remain on the premises was revoked, that is in direct conflict with the allegation she intended to kill Mr. Alexander.
If I was the defense attorney, I would consider reading the government's motion supporting its theory of burglary by way of aggravated assault and ask the question "if they government told the court Ms. Arias' intent was to only harm Mr. Alexander, ie, aggravated assault, why on Earth have they charged her with intentionally killing Mr. Alexander? Even the government doesn't believe Ms. Arias intentionally killed Mr. Alexander."