In charging a petty thief who attempted to rob a Safeway with felony murder, Denver District Attorney Bill Ritter is making use of one of a DA's handiest tools. He's also stretching the definition of felony murder as far as it will go -- and possibly further.
In March, Kenneth Mackey pulled the hood of his sweatshirt over his head and a scarf over his mouth and walked into the Safeway at East Evans Avenue and South Downing Street. He went behind the service desk, pushed the clerk aside and stole money from the cash drawer. Before he could escape, four customers wrestled him to the floor. One of the customers, 69-year-old Frank Scalise, collapsed when police arrived and later died at the hospital.
These are punitive times. Because of a general and uneasy sense of lawlessness and random violence, the public has demanded strong measures against crime, and the ideal of rehabilitation has given way to one of punishment. In this climate, the felony murder law is profoundly helpful to prosecutors and police. It says that if someone is killed during the commission of one of a specific group of felonies or the flight from that crime, the perpetrator and his accomplices are all equally guilty of murder, whether or not the death was intended.
According to author and University of Colorado law professor Mimi Wesson, the law of felony murder is hundreds of years old, originating in English common law. "The irony is that the English Parliament abolished the felony murder rule more than forty years ago," Wesson says. "A few American jurisdictions have abolished it, and it is widely criticized by scholars, but most U.S. jurisdictions still have it, and most -- like Colorado -- treat felony murders as first-degree and therefore susceptible to the most severe punishment: death or life without parole."
Wesson finds this troubling. "The way criminal law distinguishes between the most grievous offender and the less blameworthy is by inquiring into their mental state," she says. "Ordinarily, a person who takes someone else's life intentionally is guilty of a far more serious crime than someone who takes it by mere negligence. The felony murder rule absolutely levels all of those distinctions, which are central to the enterprise of blame and punishment."
Felons should not be able to "hide behind the notion that they did not intend death when they very much have a criminal intent to commit a felony," says DA Ritter. "When a person engages in felony conduct, they are engaging in conduct that has as one of its foreseeable results the death of someone." Another statute concerning extreme indifference to life "also eliminates the intent requirement," Ritter points out.
One of the most notorious uses of the statute occurred in 1998 when, in an emotional and highly theatrical trial, Lisl Auman was sentenced to life in prison for the murder of Officer Bruce VanderJagt ("Zero to Life," April 15, 1999). Auman was handcuffed in the back of a police car at the time of VanderJagt's death. Her case will be appealed this spring.
The events leading to the murder were complex, confused and chaotic, but prosecutor Tim Twining managed to weave them into a tidy narrative. He said that Auman was a woman scorned, bent on revenge against her ex-boyfriend, Shawn Cheever. She enlisted some violent, gun-toting skinheads to drive with her to the lodge at Buffalo Creek where she and Cheever lived. She directed them to Cheever's room and clipped the bolt on his door with bolt cutters. The group then stole several items. Neighbors called the police. By the time they arrived, Auman was leaving in a red Trans Am driven by one of the skinheads, Matthaeus Jaehnig. Police pursued the couple into the city, where they pulled into an apartment complex, got out of the car and ran to the doorway of an apartment. Auman was taken into custody. Jaehnig fled down a corridor. Officer VanderJagt arrived, peered into the corridor and was immediately shot dead by Jaehnig, who then inched forward, stole VanderJagt's gun and shot himself.
Auman "was a catalyst to felony murder," Twining said after the trial, "a burglary that, during the immediate flight from that burglary, the death of another was caused."
Lisl Auman herself was no longer in flight when VanderJagt was shot. Jaehnig presumably was.
The issue of when flight ends became one of many contentious topics at the trial. Twining needed only to prove Auman complicit in the burglary to win a felony murder conviction, but he had further accusations. Primary among them: Auman had actually handed Jaehnig the shotgun he used to kill Officer VanderJagt, and she had been hostile and uncooperative toward police. The gun-passing allegation hinged on reports by arresting officers that Auman had hesitated when told to come forward with her hands up and then, her right arm hidden from view behind a wall, dipped her body slightly as if setting something down. Since they had seen nothing in Jaehnig's hands before he fled down the corridor, they surmised that this must have been the moment when Auman handed off the gun.
Not one of the detectives, however, had mentioned Auman's dip in the detailed reports compiled immediately after the crime. It was described only two days later, in amended reports.
"The new statements accuse Lisl of the kind of action that never would have been omitted from any kind of police report initially, had it been true," said defense attorney Angela Krus, who pointed out specific contradictions in the officers' testimony. She also reminded the jury that since shots had already been fired, police would have been hyper-vigilant in arresting Auman.
"What did you hear over and over and over again?" she asked. "Police safety, policeman's safety, policeman's safety...If she had bent down to put this weapon down or bent down to pick it up, she wouldn't be here right now. They would have shot her dead."
As for Auman's alleged sullenness, prosecutors told the jury it had cost VanderJagt his life. Had she told police where Jaehnig was, that he was armed and that there was no exit from the corridor he'd run down, VanderJagt would not have put himself in danger. While it's no crime to refrain from talking to police, this was a powerfully emotional argument.
But it wasn't true. Auman told the cops she didn't know where Jaehnig was (she had been on the ground being handcuffed when he ran, so this was probably true), but she also described his gun and told them he was wearing a black jacket. And according to at least one cop's account, VanderJagt knew the corridor was blind: "Officer VanderJagt says that there isn't any other way out of there. He said, do you want to go in or do you want me to go in? Sergeant Jones comes up. Officer VanderJagt apprises him of the same thing. That there's no way out."
In almost all respects, Auman's version of events differs from Twining's. She said she had gone to Buffalo Creek with no thoughts of revenge, but only to retrieve her belongings, many of which were in Cheever's room. She had picked a time when Cheever should have been at work, but she wanted someone with her in case he returned unexpectedly. Demetria Soriano, an old friend, had offered to help. It was Soriano's boyfriend, Dion Gerze, who enlisted Matthaeus Jaehnig and another skinhead, Steven Duprey. Though she had met Gerze once or twice, Auman didn't know the other two.
Cheever's room contained some objects whose ownership was murky -- an $800 snowboard Auman had bought a few days earlier for his birthday, a camcorder she'd purchased to replace his broken one, boxes containing both of their CDs. Gerze and Duprey did take two speakers that clearly weren't Auman's; Soriano says Auman was powerless to stop them. To compound the moral ambiguity of the situation, Cheever himself was an incorrigible conman and thief. He was arrested soon after the burglary in possession of four stolen purses and Lisl Auman's checkbook.
When Jaehnig spotted the police and took off at high speed on the icy, winding roads, sometimes crossing the median and crashing through red lights once he reached the city, Auman had been terrified, she said. She had tried twice to get out of the car. But Auman did little to help herself in the two rambling videotaped statements she gave police. She spun stories. She told lies. Later she said she'd been trying to obscure the skinheads' identities because she was terrified of them. She was also telling police what she thought they wanted to hear, hoping they'd let her go home. Instead, she provided abundant ammunition for the prosecution.
"Lisl's reaction to stressful situations is to not think," says defense attorney Angela Kruse. "It's as though her mind goes on bizarre autopilot. And when she doesn't know the answer to something, she starts guessing."
The jurors found Auman guilty of second-degree burglary, and of felony murder stemming from it. According to juror Linda Chin, they did not know that their verdict meant she would spend the rest of her life in prison.
The felony murder law can twist the legal system and result in very uneven sentences. It means that someone who served as a lookout for a burglary, for instance, could get life in prison, while a defendant who actually kicked a victim to death but is not charged with felony murder gets fewer than thirty years. The threat of a felony murder prosecution is also a powerful tool in getting lawbreakers to testify against their companions: You're all equally guilty under the law. You can all go to prison for life. But take a plea, testify, and you'll get two years' probation while your friend goes down for good.
Ritter says his office does not offer pleas to the defendants they consider most culpable. "We try and measure culpability and do what we can to achieve sentencing commensurate with their crime," he says.
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"The really troubling cases," says Mimi Wesson, "are those where the felony murder rule is coupled with the rules of accomplice liability, which can make even a minor participant in a crime equally guilty to the most major participants and can produce a case like Lisl Auman's."
Should the Safeway case go to trial, the jury will be asked to decide the truth of an apparently simple formulation: Because the defendant decided to rob a store, the victim died. "The concept of cause, which is not a scientifically precise one, has to do a lot of work here," says Wesson. "Because jurors are asked to interpret this imprecise concept, it makes the results highly unpredictable. Criminal law should be precise in notifying people what is forbidden or allowed and what the degree of guilt is for any particular transgression. All those imponderables get tucked into that one question: Did the robbery cause the death? It's a misleadingly simple formulation for a bunch of complex and unpredictable judgments."
Cathleen Lord of the Denver Public Defender's Office is handling Auman's appeal and plans to file a motion at the end of May. Auman's case, she says, "raises serious questions about how far-reaching felony murder is and whether it was meant to cover this sort of situation at all."
"The felony murder rule is the prosecutor's best friend," Wesson concludes. "They love it, and one can see why."