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.