August 8, 2014

The medical examiner has ruled James Brady's death a homicide, 33 years after John Hinckley shot him, so could there be a murder trial?

"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 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.”

Mr. Hinckley’s lawyer, Barry W. Levine, acknowledged new charges were possible, but said the possibility was “far-fetched in the extreme.” “There’s nothing new here that happened,” he said.
I can't imagine prosecutors choosing to go after Hinckley now, but is there any legal path here? I would have thought no. I'm surprised to see what Terwilliger said, but I'm not an expert on double jeopardy.

32 comments:

Ann Althouse said...

I linked to the NYT which is reporting the news of what the ME decided and addressed the obvious question by calling up some experts. I am happy to reward that work with a link. It's exactly the question I had and the reporter did some legwork. Admittedly, he's getting quotes from experts, not doing neutral research. I've gotten calls from reporters doing articles by that method. They tend to have something they want to attach a name to and try to get a quote that's about what they think the article needs. But I don't know whether this reporter did exactly that, and I appreciated the article.

Beldar said...

Prof. A: Apologies, even corrected my original remark was off-target. Thanks for passing this along.

Birkel said...

Why the prosecutors would proceed I cannot fathom. Seems a waste of time.

But double jeopardy attaches, I believe, for the same or lesser included charges on the same facts. The fact of death is new and could not have been included in the earlier trial.

The fact that he was deemed insane would not stop a conviction on murder charges but would stop any punishment beyond securing Hinckley's lifetime inside the mental health facility. This would only be important if Hinckley has an opportunity to someday be released for good -- not just furloughs.

madAsHell said...

Is this another effort to stir up the gun control types?
Is the DoJ Community Relations Service involved?

Humperdink said...

Jealous of ambulance chasing by trial lawyers, the DA wants to try his hand at hearse chasing . Seems to fit the times.

John said...

This came up in another forum the other day. I had always been under the impression that if you shot someone in the commission of a crime, they had to die within a year for it to be homicide. this may only be the case in certain states or I may just be wrong.

Brady lived on for 33 years. I don't see how it can be ruled that the bullet killed him.

No question, as far as I can see that Hinckly shot Brady and caused him grievous harm. I just don't see homicide.

Larry Flynt of Hustler fame was shot even longer ago and has suffered much. When he dies, can his shooter be charged with his murder?

This whole idea seems ludicrous.

John Henry

John said...

Madashell nailed it, I think.

This is just an effort to stir up the anti 2nd Amendment lobby. Had Brady not been the poster child for gun control, would this be happening?

Is there any precedent for it happening previously?

John Henry

KLDAVIS said...

Hinkley was found not guilty by reason of insanity of attempted murder in 1982. After Brady's death, he can now be charged with murder. Birkel is right.

Wilbur said...

The issue of guilt or innocence could conceivably be revisited by the same jurisdiction where you have a different victim, Brady rather than Reagan.

But the issue of Hinckley's mental state at the time of the shootings has already been litigated to completion, and he was found to be insane.

Could Hinckley raise a res judicata claim on this issue?

MaxedOutMama said...

He was charged with the shooting, but not with the homicide. So he could theoretically be charged with the homicide, but if he was adjudicated insane at the time of the shooting, it is nearly impossible for the prosecutors to claim now that he wasn't.

He has been hospitalized for years, there is clear body of evidence that the guy was nuts, and so the only expected result of the trial would be NG, insane, surely?

And then there's the difficulty of arguing at the new trial that this death decades later was murder based on the shooting. You have to get a jury to swallow that, you also have to get the jury to decide that the first jury was wrong and Hinckley wasn't insane then. If a prosecutor did get a jury to swallow those two, I think the verdict would be overturned on appeal.

So no new trial.

The Godfather said...

Eugene Volokh says that a murder prosecution of Hinckley would be barred by the common-law "year and a day" rule, and by collateral estoppel against the Government regarding Hinckley's insanity.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/08/may-the-government-try-john-hinckley-for-james-bradys-murder/

Birkel said...

The one difference between the law then and the law now (in many states) is the different verdict available: guilty but insane.

That is a different thing than not guilty by reason of mental defect.

So the advantage might be to strip Hinckley of any future chance at release. Or for political grandstanding. But mainly political grandstanding.

Birkel said...

The Godfather:
Volokh admits a state case could proceed after disposing of the year and a day rule. So that part is all but useless.

BTW, the year and a day rule seems not to apply in vegetative state cases if anybody needs an obvious example. Jurisdiction by jurisdiction, of course.

James Pawlak said...

'Tis too bad that so much of what was good in the Common Law has been given up. The "year and a day" rule as to homicides was one. The very clear meaning to "Rape", as opposed to the vague "Sexual Assault", was another.

John said...

Was Brady in a "vegetative state"? I know he was mentally and physically seriously impaired but he did seem able to get around and dis seem able to give speeches and so on.

I would not think this is a "vegetative state"

John Henry

jimbino said...

What? So if you slap your abusive wife and she dies a day early, you are charged with homicide?

There have to be lots of problems involving proximate cause and other items of proof.

traditionalguy said...

The way Brady approached gun rights proves that he has been brain dead the whole time.

Birkel said...

John Henry:
I was merely pointing out that the common law rule has exceptions or has been overturned by legislatures.

You are a coy one.

Quaestor said...

I'd like to see this come to trial. I want to know more about Hinckley's motivation and what role, if any, Jodie Foster may have had.

When the word spread about Brady's death I visited several sites for details. On one a commenter broadly suggested that Foster had replied to some of Hinckley's letters, and that on one occasion expressed disgust that Reagan had defeated Carter. The commenter implied that this antipathy inspired Hinckley's assassination plan. I don't know if this is true, but I'd like to know one way or the other. A new trial might settle this question.

Gahrie said...

I don't get it....why is there Double Jeopardy? Since Brady just died surely he hasn't been charged and tried for Brady's murder already?

AJ Lynch said...

There was a case like that in Philly in the last two years. A policeman, who had been shot & disabled in a robbery, died 40 some years after being shot and the shooter, who by then had been paroled, was re-arrested and charged with murder.

I think the shooter then passed away before he could be tried for murder.

AJ Lynch said...

Google Officer Walter Barclay if you want to find that case.

Smilin' Jack said...

This sort of thing was the basis of the really cool movie "Fracture," with Anthony Hopkins and Ryan Gosling.

HT said...

I was hoping to hear more thoughts on this. Around here, there's the issue of visitation to his parents. Perhaps this decision will affect that. At any rate, this was the ME's decision - regarding gunrights, surely it's not political in that case.

tim maguire said...

Since it's a new charge, I wouldn't expect double jeopardy to be a problem, but it seems virtually impossible to prove causation--an old man dies of an old man affliction and they want to charge someone with murder because of what he. Did 33 years earlier? It's hard to see how Hinckley could get a fair trial.

Corner grandstanding. He saw a chance to get his name in the news and he took it.

Bruce Hayden said...

Coincidences, maybe, but maybe an hour after I first heard about Brady's death, I got an email ad from the Hinkley (Wash., D.C.) Hilton. Hadn't received one in quite some time.

When I was chairing an intellectual property committee, we would have quarterly DC meetings, and I began staying at that hotel. Cab drivers know which Hilton you want when you ask for that one, but a lot of others these days do not. Ronald Reagan? Remember him? No. Well, what can you say at that point. Don't even get to Jim Brady or John Hinkely.

Bruce Hayden said...

Eugene Volokh says that a murder prosecution of Hinckley would be barred by the common-law "year and a day" rule, and by collateral estoppel against the Government regarding Hinckley's insanity.

I think that the collateral estoppel rule is the better argument, though EV does point that the year and a day rule is on the wane. It is apparently still the federal rule though, and DC means federal law. Which gets you into the Ex Post Facto rule that essentially says in cases like this that you can't change the rules on someone after has committed an act that he will be tried for. It essentially means that regardless of whether the federal govt. (which includes DC) abolishes the Year and a Day rule, it doesn't matter to Hinkely, because it was in effect at the time he shot Brady.

Collateral Estoppel is maybe more relevant though, because it prevents a party (here the feds/DC govt) from relitigating ultimate arguments that it lost. And, the requirements are apparently the same for insanity in both attempted murder and murder. An insanity verdict was the ultimate resolution of the Hinkley's attempted murder case, and, it is thus binding on the prosecutors, since they cannot reopen the question and relitigate it.

Douglas said...

Leaving aside the double jeopardy issues, isn't there a causation issue here? Brady died at 73, which is within the range of a normal lifetime. How can the prosecutors prove that the shooting caused the death when he lived for decades after the shooting?

rhhardin said...

The Japanese update the atomic bomb death toll every year as more survivors die.

Curious George said...

Guns don't kill people. Anti-gun medical examiners kill people.

GW said...

I think you have it right, Curious George. This decision stinks of politics. I would be like to know the contacts this medical examiners department had with outside organizations - and the DOJ for that matter.

cokaygne said...

Stuff like this engenders disrespect for the law.