Gideon at A Public Defender, who is not only back in the saddle but riding at full gallop, raises a particularly troubling scenario about to play out at Moritz College of Law at Ohio State.  Dealing with the prosecution of “Hiccup Girl,” Jennifer Mee, a one-time internet phenom turned accomplice in a botched robbery that left Shannon Griffin, 22, dead.

Mee is charged with 1st degree murder under the felony murder rule, a common law holdover that provides that any participant in a felony, where a death results, is chargeable with murder. While the rule is of dubious merit, it remains the law and hence is taught to first year law students in their criminal law class.  

Doug Berman will be teaching criminal law this semester, and found it fortuitous that this case arose just in the nick of time.

I will use the “Hiccup Girl” case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens rea concerning causing another’s death and may not be an effective was to deter underlying felonies).  But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains. 

As a technical matter, the only form of homicide which the “Hiccup Girl” can be charged with is first-degree murder.  I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge.  I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges.  But would this be truly a just outcome?  Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee’s of the world out [?] be facing first-degree murder for which the only available punishments are death and life without parole?

 

Gideon rips Doug’s view to shreds.

What? For someone who is considered an expert on criminal sentencing and who is also teaching future lawyers about criminal law, this is extremely poor statutory reading and reasoning. This assumes many things:

1. She was aware that they were going to kill Griffin all along and intentionally lured him to his death.

2. She has nothing to offer the prosecution.

3. They have no discretion in charging and or plea bargaining.

An amateur criminal defense attorney can probably take only the facts I’ve listed above and make a compelling case that she may in fact be guilty of second or third degree murder, which carries a much lesser sentence. Berman is free to express his opinion that she shouldn’t be given any leniency and prosecutors should stick with the first degree murder charge as a matter of “principle”, but to suggest that no “honest prosecutor and/or just could” allow her to plead to a lesser crime is just silly and belies such a fundamental misunderstanding of the criminal justice system that I am honestly rather shocked.

Beginning with the assumption that Doug recognizes that he’s not working with facts, but merely early reporting that may later prove to be wrong or irresponsible, not to mention entirely from the police perspective which tends to provide a view of the crime that entirely supports the prosecution, ignoring anything that undermines the effectiveness of the press statements, I will presume that Doug doesn’t mean to suggest that Mee is presumed guilty.  It may appear as if he’s reached a verdict, but I reject the idea that Doug wouldn’t adjust his view as new information becomes available.

That said, Gideon’s point, that even the rawest recruit in the trenches, working with the assumed information as provided by the police, can come up with a list of reasons why Doug’s statement is blindly dogmatic.  By phrasing it in terms of an “honest prosecutor and/or judge,” he suggests that only a cynical, dishonest system would produce a result different than what he thinks proper.

It’s not particularly significant that an individual holds this view.  The world is filled with people who hold uninformed or illogical views, based upon their limited knowledge and, where needed, expertise.  Some of them offer comments here.  But Doug Berman sits in a different position than most, being the William B. Saxbe Designated Professor of Law.  That’s quite an honor, as well as a responsibility.  When Doug tells a classroom filled with fresh-faced first year law students something, they listen.  They learn.  They carry his words with them throughout their legal career.

To say that no honest prosecutor can exercise discretion in a case where a pertinent fact may be strongly in dispute, where the legislature has provided for lesser alternatives, is not honest.

Mee could easily be guilty of any other degree of murder, thereby permitting the judge to impose a sentence less than life. We should encourage prosecutors to freely exercise the discretion when the facts warrant it. It may be too early to say that they do, but it’s also too early to say that they don’t.

One can never be sure whether one or all students will end up practicing criminal law, but there’s certainly a possibility that a future prosecutor is sitting in Doug Berman’s classroom.  Maybe even a future judge.  It could happen.  To paint the exercise of discretion in such ideological terms, as a matter of personal integrity, would not be the act of a teacher, but a demagogue. 

Just as I conveniently assume that Doug’s views take for granted that the information in hand may not prove to be accurate, I similarly assume that Doug’s commentary, and phraseology, was the product of quick fingers rather than deep thought.   When the time comes to teach his class about the felony murder rule, with its multitude of problematic assumptions that render it archaic and frequently bizarre and arbitrary in application, he will include the practical considerations that come with any prosecution, all as valid and as much a part of a system that intends to provide safety valves to avoid unduly harsh and irrational outcomes if prosecutors and judges are sufficiently well trained to avail themselves of them.

The one thing we certainly don’t want is a law school criminal law class that believes that the only honest prosecutor and/or judge is the harsh, inflexible, irrational one.  I refuse to believe that Doug Berman would ever be the teacher of such a class, and that the reflection missing from a dashed-off blog post will find its way into the classroom.