A Question of Intent

A judge deals a blow to the felony-murder law.

Milda Scalise had no idea that March 15 would be her last day with her 69-year-old husband, Frank. The two of them had eaten lunch at the Washington Park Grille and then gone to see Fantasia 2000. "We always had a lot of fun together," she says. On the way home, they stopped at their neighborhood Safeway, at East Evans Avenue and South Downing Street. They checked through the line and were walking toward the door. Suddenly Frank "left the cart and went running," Milda says. "I couldn't understand why. I saw him tackle this man and money flying everywhere. Some construction men went over to help him. A woman came out from behind the counter. She was very excited and she said to move back."

Scalise had helped foil a robbery. Police arrived. The man Scalise had tackled was arrested. Frank still lay on the floor. "He died in the exit," Milda says.

For Kenneth Mackey, aka Kenny Ray Samson, it had been a busy day. Earlier, a man matching his description had accosted Derek Koch on Bellaire Street at 12th Avenue. "Get out of your car and leave your wallet or I'll shoot you," the man said, according to Koch. The man then grabbed the wallet, got into the car and sped away.

Shown a photo lineup, Koch tentatively identified the mugger as Mackey. The man in the photograph had the same cold eyes as the man who stole his car, he said. A little later, Mackey watched outside the Safeway as a customer approached the service counter. When the clerk opened the drawer, Mackey pulled the hood of his sweatshirt over his head, ran in, pushed aside the clerk and grabbed the money. As he tried to get away, he was confronted by Frank Scalise, along with three other men. They wrestled him to the ground. "I have a gun," Mackey yelled.

Mackey has several petty crimes on his record. He told police he'd robbed the Safeway for money for a place to stay. Four of Koch's credit cards were found in his pocket. There was no gun.

The district attorney charged Mackey with aggravated robbery and felony murder in the death of Scalise. According to the felony-murder law, if someone is killed during the commission of one of a specific group of felonies, the perpetrator is guilty of first-degree murder, whether or not he intended the death. The punishment is execution or life in prison. One of the most famous -- and troublesome -- applications of the controversial law occurred when 22-year-old Lisl Auman was sentenced to life for the 1997 murder of Denver police officer Bruce VanderJagt. Auman was handcuffed in the back of a police car when the murder occurred.

According to Mimi Wesson, a law professor at the University of Colorado: "The wisdom of the ages suggests that the difference between a first-degree murder and lesser forms of homicide is mental culpability. Colorado recognizes at least two kinds. One is deliberate intention to take the life of another -- in other words, it's your desire to kill someone and you've reflected on that desire. And the other is extreme indifference to the value of human life. It's perfectly reasonable for a jury to find one or the other of those mental states in the mind of a person committing a felony. The trouble with the felony-murder rule is that it short-circuits that inquiry into the mind of the felon."

At a preliminary hearing June 15, Judge Robert Patterson threw out the felony-murder charge against Mackey. "I was in shock," says defense attorney Susan Fisch, who explains that only a very low burden of proof is required at this stage of a prosecution.

"We believe there was a strong factual basis for the charge, and the judge took a different view," says District Attorney Bill Ritter. "We have an option of appealing. But I take very seriously input from families, and the family has made the decision not to appeal it."

Mackey will still be tried on two counts of aggravated robbery, plus a third count for a previous robbery.

Scalise had no known heart problems; doctors believe it was stress and exertion that killed him. Still, Milda Scalise does not regret the dropped murder charge. "As long as the man is punished, I don't care about taking his life," she says. "It's not up to me to judge him. The Bible says: 'Judge not, lest ye be judged.'

"[Mackey] did not go out intending for someone to die. He was not very aggressive; he told the girl at the counter to step aside and she won't get hurt. My husband went on his own volition -- no one forced him to. He sometimes forgot how old he was. He wanted to do things."

Frank Scalise was a loving husband and father, according to his wife, someone to whom others routinely turned for help. "He was a good man," Milda concludes. "That's all I can say."

 
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