Thursday, November 6, 2014


It is impossible to purposely or knowingly cause an unintended death.
If you're not a lawyer, that probably seems self-evident.  After all, you can't mean to do something you don't intend to do, can't try to cause an accident because then it won't be, well, an accident.  It'll be an on purpose.  

If you're a lawyer, though.  That's the shit we cut our teeth on.  

The crime is felony murder, "Murder B" we call it since it's the form or murder proscribed by subsection B of Section 2903.02 of the Ohio Revised Code, the section that defines the crime of murder.
(B) No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.
It's what's known as a strict liability offense.  If you're committing one of those other felonies and as a proximate result (a fuzzy term in practice, at least sometimes, but the fuzziness doesn't matter here) someone happens to die, you're guilty.  You didn't mean to kill anyone?  The death was an accident? Too bad.  Shit happens.

It's also a crime to attempt to commit a crime.  That's section 2923.02 of the Revised Code which says, in subsection A,
(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.
Which makes it a crime to "purposely or knowingly" try to commit another crime.

Bobby Nolan went to trial and the jury found that, among other things, he was guilty of attempted felony murder.  Which the court of appeals, in what may be the first case in Ohio to address the question, called "a logical impossibility."  Because you can't purposely or knowingly try to cause something to happen if you don't intend for it to happen.  

Or maybe you could, because the prosecutor asked the Ohio Supreme Court to review that decision - lest Nolan be eligible to get out of prison in 15 years or so. (I haven't bothered to look up how much time he got on the other things the jury said he did.)   And the Supremes agreed.

Yesterday, they issued their opinion in State v. Nolan.  Justice Paul Pfeifer, writing for a unanimous court, rejected the state's argument (essentially that the court had previously said attempted felony murder was too a crime) and agreed with the court of appeals.  It's not possible.  It's a quote from Pfeifer that I put at the top of this post.  What I didn't put at the top is how his opinion concludes. Here's the beginning and end of the last paragraph.
In sum, an attempt crime must be committed purposely or knowingly and intent to kill need not be proven for the state to obtain a conviction for felony murder, so that a person can be convicted of that offense even though the death was unintended. . . . We conclude that the court of appeals correctly determined that it is impossible to purposely or knowingly cause an unintended death. Accordingly, we hold that attempted felony murder is not a cognizable crime in Ohio. 
Which is clear, perhaps, only to a lawyer.

And here's the part I left out of that quote, the part that goes where I put in the ellipsis.
Thus, this case devolves to an anfractuous question: Can a person be guilty of attempting to cause an unintended death? 
To which even lawyer who spent years studying medieval and renaissance English literature and taught writing and literature to college students might well go 
An ana - what the fuck is anafractuous?
So the lawyer looks in the dictionary and learns that it comes from Latin by way of French and means something like "full of twists and turns."

A fine judge, dead for several years now, once told me that the legislature should never be allowed to mess with criminal law.  His reasoning was simple.
They just fuck it up.

1 comment:

  1. You know, as an outsider viewing the legal system, I had kind of noticed that. And it's not just criminal law. I'm not saying case law is moral or fair, but it does seem much more carefully designed as a tool for making efficient decisions. Not necessarily in individual cases, of course, but it seems like over time the courts tend to evolve the law toward relatively simple, consistent, general-purpose rules with bright lines. Then the legislature comes along and stomps all over it with carve-outs for special interests and OMG-the-children special crimes that don't take into account decades of legal experience.