Constitutional Law, Crime, George J. Terwilliger III, Guns / Firearms, Murder

James Brady Death Ruled Homicide 33 Years Later — Are You Impressed Now Jodie Foster?

Former White House press secretary and gun regulation activist James Brady died last week. The coroner has apparently ruled Brady’s death a homicide. Nothing new happened, the coroner is simply saying that the bullet to the head that Brady took 33 years ago killed him. As murders go, this was an extremely long-tailed killing. Crim law professors of the world rejoice: life just delivered your next issue spotter.

But can a death three decades after a shooting open the door to a murder prosecution?

Has anyone ever asked John Hinckley Jr. his thoughts on Jodie Foster’s sexuality? I mean, he took pot shots at the President of the United States and now may well have successfully murdered someone to win the affections of a woman who publicly came out as a lesbian. That’s got to be very confusing.

Anyway, the fact that medical science has linked Brady’s death to Hinckley’s bullet has sparked discussion about a murder trial for Hinckley:

The ruling could allow prosecutors in Washington, where Reagan and Mr. Brady were shot on March 30, 1981, by John W. Hinckley Jr., to reopen the case and charge Mr. Hinckley with murder. The United States attorney’s office said Friday that it was “reviewing the ruling on the death of Mr. Brady” and had no further comment.

Mr. Hinckley was found not guilty in 1982 by reason of insanity on charges ranging from attempted assassination of the president to possession of an unlicensed pistol. The verdict was met with such outrage that many states and the federal government altered laws to make it harder to use the insanity defense. Mr. Hinckley, now 59, has been a patient at St. Elizabeths Hospital in Washington since the trial.

Sure he was never tried for murder, but every underlying fact remains identical. Don’t we have some constitutional provision on that point?

There is no statute of limitations on murder charges, but any attempt to retry Mr. Hinckley would be a challenge for prosecutors, in part because he was ruled insane, said Hugh Keefe, a Connecticut defense lawyer who taught trial advocacy at Yale University.

“They’re dead in the water,” Mr. Keefe said. “That’s the end of that case, because we have double jeopardy. He was tried; he was found not guilty based on insanity.”

But not everyone is convinced:

But George J. Terwilliger III, who was the assistant United States attorney in Washington when he wrote the search warrant for Mr. Hinckley’s hotel room, said there might be grounds for a new trial.

“Generally, a new homicide charge would be adjudicated on its merits without reference to a prior case,” said Mr. Terwilliger, who became a deputy attorney general under the elder President George Bush and is now in private practice. “The real challenge here would be to prove causation for the death.”

That would make for an unusual constitutional loophole, but then again this is a pretty unusual set of circumstances.

As for the factual question, the knee-jerk reaction among the press has been to cast doubt on just how sure a medical examiner could be that the cause of death of a 73-year-old man was a gunshot from 1981. But then again, today the CSI effect is so powerful that a jury might just take the coroner’s office at its word.

Amazingly, this sort of long-tail killing has come up before:

In 2007, a Pennsylvania man who had served 16 years for shooting a police officer in 1966 was arrested again and charged with murder after the officer’s death, which was ruled a homicide based on the bullet wound 41 years earlier. The man was tried by a jury and acquitted.

And in 2012, there was a shooting case in the District that was ruled a homicide when the victim died 23 years later. In that case, the shooter was serving an 85-year prison sentence. New charges were not filed.

Prosecutors will probably sit this one out. It just seems like there’s little advantage to reopening this can of worms and fighting uphill battles on tough legal and factual questions. Still, it’s best not to underestimate a prosecutor’s desire to pursue a high-profile case.

They guy may be trying to impress Ellen or something.

Coroner Is Said to Rule James Brady’s Death a Homicide, 33 Years After a Shooting [New York Times]
Medical examiner rules James Brady’s death a homicide [Washington Post]

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