In 1976, a childhood friend, at age 16, was charged, tried and convicted of felony-murder as an unarmed nonkilling accomplice, where robbery was the underlying felony, in which an individual was killed by one of my friend’s codefendants, with a knife he took from the victim. My friend was held without bail for a little more than a year before he literally had his day in court — his trial lasted one day! He was summarily sentenced to 20 years to life after the killer testified that my friend was with him when he killed the individual. Note that the killer was sentenced to 18 months as a juvenile delinquent!
This made me think of Kimberly Potter, the former cop who shot and killed 20 year old Daunte Wright. She was charged with manslaughter, which carries a maximum sentence of 10 years in Minnesota. After being booked, she posted $100,000 bond and was back on the streets in six hours. My friend was not back on the streets until 24 years later!
As someone who has studied the law, who has a degree of expertise in the felony-murder rule, a much criticized law by legal scholars almost since its common law inception in around 1526 in England, when the January 6th Insurrection went down, and when a number of insurrectionists were arrested, I wondered then and I wonder now why none of them have been charged with felony-murder for the death of a Capitol police officer. The felony-murder rule is a strict liability crime — so strict that at one time if police officers were apprehending the persons of interest and shot and killed either one of the suspects or an innocent bystander, the suspects would be charged with the homicide the police committed — and practically stands alone as a crime where prosecutors do not have to prove each and every element of the crime. Prosecutors know it’s the easiest pathway to a murder conviction. In fact, when New York State was in the process of revising its Penal Code, in 1967, there was some support for abolishing the felony-murder rule, but there was strong opposition from prosecutors. So, more than 50 years after New York overhauled its Penal Code, the archaic felony-murder rule remains on the books, as it does in most states.
Now, here’s the kicker in my childhood friend’s case. The prosecutor charged, tried and convicted another one of my friends with felony-murder for the same crime, but under the theory that he was the actual killer! Scott Turow, in one of his legal thrillers, wrote something like, “It’s a practical impossibility to try and convict two people for the same crime.” Only in fiction, Scott, only in fiction! I have evidence that two childhood friends, one the actual murderer, was charged with killing the same person, at separate trials, before the same judge, which illustrates another point: when prosecutors and even judges brag about their conviction rates, then you know that there is something fundamentally wrong with our criminal legal system, which allows people to not serve justice, but their individual careers.
The criminal legal system is not a system of justice. It incentivizes judges and prosecutors to seek convictions at the expense of the truth. In fact, I have one more childhood friend who was tried and convicted for a murder Brooklyn prosecutors knew he did not commit. At the time of his trial, the prosecutors knew that he was in the state of Florida when the homicide, in Brooklyn, went down. He spent two decades in prison. Had not Kenneth P. Thompson, the first Black D.A. in Brooklyn, set up a Conviction Integrity Unit, and my childhood friend’s case was not one of the cases the Conviction Integrity Unit looked at, who knows, my childhood friend would not have been exonerated. The evidence of my childhood friend’s innocence, the fact that he was in Florida when someone else committed the murder, two decades later, remained in his case folder. This exculpatory evidence had not been turned over to my childhood friend’s attorney, clearly a violation of the rule of law, of ethics, of humanity. For cases like this, where prosecutors blatantly disregard the law and send people they know to be innocent to prison for years, there should be a severe penalty. If this was me, I would rather the prosecutor spend 20 years in prison for knowingly using false testimony against me than the millions the City paid out to my friend. Who knows, he might have made those millions on his own, as we grew up in the same neighborhood, Marcy Houses, as Jay-Z and Tracy Morgan.
This is very poignant and necessary when informing the discussion of what justice and sentencing reform must look like.
What an important essay, Eric. Thank you.
These days I am praying harder for a conviction of Derek Chauvin than I’ve prayed for anything in a very long time. The rational side of me says “How could he NOT be convicted!?” but the skeptical side is armed with the knowledge that — as you point out here — there is not justice for all in our country.
Stay safe, my friend, Judi
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