It wasn’t too long ago that calls to eliminate the crime of felony murder were loud and strident. After all, why, but why, should some kid who only meant to steal go to prison for life when it was his partner who pulled the trigger and killed the shopowner? He didn’t do it. He didn’t know his partner would do it. He just wanted to steal. He never wanted anyone to die. Is this justice?
While the specific parameters of the rule vary between jurisdictions, the general idea is that if a death results from the conduct of committing a felony, everyone involved is guilty of murder for the death. Usually, there is a requirement that it be reasonably foreseeable, at least to accomplices or co-conspirators if not the actual killer, but that’s more a matter of coming up with a good explanation for chaos theory connections than reality.
The upshot is that if a felony is committed, resulting in a death that may never have been intended or even known, tough nuggies. That you didn’t mean for anyone to die doesn’t change that someone did die as a result of your actions. And few would argue the virtue of the felon whose choices resulted in a needless death. But is it murder?
But as Charles Blow gleefully shouts from his soapbox, “Guilty, Guilty, Guilty.” This time, it wasn’t some kid who knocked over a liquor store, but three white guys charged with the murder of Ahmaud Arbery. All three were convicted of murder, but with a caveat.
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 “Roddie”] Bryan 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.
The shooter was Travis McMichael, and he was convicted of malice murder for being the shooter, but the other two were convicted of felony murder, which is just as serious, just as much murder, and subject to the same sentence as malice murder. They didn’t shoot Arbery. They didn’t pull a trigger. Maybe they would have or maybe they wouldn’t, but it’s all speculative because they didn’t shoot and kill Ahmaud Arbery.
But they still murdered Arbery.
There aren’t going to be many criminal justice reformers calling for the elimination of felony murder today. They won’t point to this conviction and call out the injustice of convicting Gregory McMichael or Roddie Bryan for a murder they didn’t commit. Some might even share Blow’s joy at the conviction. Few will shed a tear for any of these defendants, not that they deserve any more empathy than they showed Arbery, but that they were convicted under a theory of murder that they abhorred as unfair until it served to convict that rare color of defendant they hated. It’s unclear whether they are now huge felony murder fans, but they aren’t its detractors, at least not at the moment.
Of the three defendants, the case of Roddie Bryan raises the most troubling application of the felony murder rule.
The graphic cellphone video of the killing, filmed by William Bryan as he pursued Mr. Arbery in his truck, brought the world’s attention to the case in the months after the incident.
And ultimately, the video appeared to play a crucial role in the jury’s decision on Wednesday to convict Mr. Bryan, along with Travis McMichael and his father, Gregory McMichael, of murder.
Bryan filmed the killing, not because he wanted to be a video star but because he believed it would show that these good ol’ boys were doing things right, making their citizens’ arrest as they believed they were entitled to do. He could have buried the video after the bust went south, but was advised by a personal injury lawyer, because who better to give such advice after a killing, to turn it over to a radio station. In Bryan’s, and this lawyer’s, view, the video would show they were the good guys, not the bad guys, trying to capture the “burglar” who made McMichael kill him.
Roddie Bryan is a moron, but stupidity is not a crime in general. The lawyer was incompetent, but that’s not an excuse. But while in his car, chasing Arbery toward his buddies’ roadblock where they could take him down, filming the killing so there would be hard, cold evidence that, once unburied by prosecutors who saw a crime where others saw nothing, would seal their fate at trial, Bryan didn’t shoot Arbery. He didn’t have a say in shooting Arbery. It’s true that he might have been just as inclined to pull the trigger, or upon seeing Arbery try to prevent a guy with a gun from killing him, yell “Shoot, SHOOT” at McMichael, but he didn’t and no one knows if he would.
Yet, Bryan, like the shooter, Travis McMichael, and Gregory McMichael, who didn’t shoot but at least was physically present for the fundamentally flawed citizens arrest, is guilty of felony murder for being in a car taking video. What are the chances anyone will argue that Bryan, bad dude that he may be, isn’t a murderer? Should he be? Would he be if this case wasn’t about three white guys killing a black guy?
If felony murder is wrong, or “unjust” as reformers prefer to frame it, when it’s the kid knocking off a liquor store who never meant for anyone to die, is there any reason why it’s more just when it’s Bryan? And if it is more just when it’s Bryan, then felony murder is going to take down that kid in the liquor store too. Will the choir once again sing about how wrong felony murder is then?