The Ahmaud Arbery Verdicts and the Felony-Murder Rule

The felony-murder rule, in effect in some form in most states, is the controversial rule that if a person is killed during the commission of certain felonies, all parties to the felony are guilty of murder of that person. The rule can be harsh in some applications, and I agree that some judicious pruning is in order in many jurisdictions, but many critics want to get rid of it altogether.

Here is the WSJ’s report of the today’s verdicts in the Ahmaud Arbery case:

Travis McMichael, 35, chased Mr. Arbery with his father, Gregory McMichael, 65, and William “Roddie” Bryan Jr., 52, in two pickup trucks on Feb. 23, 2020. Travis McMichael shot Mr. Arbery three times with a 12-gauge shotgun, killing him.

Travis McMichael was found guilty on all counts, including one count of malice murder and four counts of felony murder. Gregory McMichael was found guilty of four counts of felony murder and acquitted on a charge of malice murder. Mr. Bryan was convicted on three counts of felony murder and acquitted on malice murder and an additional felony murder charge.

Two of the three would have been acquitted of murder, and convicted only of non-homicide offenses, if Georgia did not have the felony-murder rule.

Listen carefully for the ringing denunciation of the felony-murder rule from the sources that normally attack it. Hearing crickets?

The WaPo has this report. The first quote in the story is Al Sharpton. (Why?) He praises the verdict. The other quotes in the story, except for the family and lawyers of the defendants, are also in support. No one is quoted saying it is unjust to convict two of the defendants of murder when the jury found the elements of “malice murder” unproved.

The NYT story is similar, but it parses the difference in the two types of murder:

Under Georgia law, malice murder is applied when a person is found to have deliberately set out to kill someone. The charge of felony murder applies when a death results in the course of another felony — regardless of whether the person intended to kill someone. Both carry a sentence of up to life in prison.

The jury found Travis McMichael, the man who shot Mr. Arbery, guilty on all nine counts, including malice murder and felony murder.

Gregory McMichael was found not guilty of malice murder, but guilty of all other counts he faced, including felony murder.

William Bryan, who filmed the fatal encounter, was found not guilty of malice murder. He was found not guilty of one count of felony murder and one count of aggravated assault, but guilty of three counts of felony murder and three other charges.

Good as far as it goes, but not a word indicating that felony murder is controversial and there is a national drive to abolish it?

My own preferred solution to the felony murder puzzle is to keep the rule but create a partial affirmative defense, reducing the charge to manslaughter if the defendant proves by a preponderance of the evidence that he did not kill the victim, assist in the killing, intend that anyone be killed or injured, or act to restrain the victim in any way. Whatever limitations on the rule might be developed, though, we should not abolish it. Anyone who argues we should needs to be reminded that he is arguing, in effect, that two of the three defendants in this case should have been acquitted of murder.

Another aspect of the case that warrants more attention than it is getting is the “root cause” of people taking the law into their own hands. The less effective law enforcement is, the more people are going to do that, sometimes with tragic consequences as in this case and the Trayvon Martin case. We need effective police, effective prosecution, and serious consequences for serious crimes, and when we don’t have them people will feel a greater need to act on their own.



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