Open Thread for News and Politics [Y-not]

While we're waiting for more content, here are a few links pertaining to the recent ruling by a medical examiner that James Brady's death was a homicide.

Although I have seen a lot of opinions about the homicide ruling (mostly negative), I haven't really run into much legal opinion about the legitimacy (or legality) of the medical examiner's decision. And the medical examiner has not released the results of the autopsy, so it's difficult to know if he had a good medical foundation for that.

But Volokh has written a couple of columns concerning the legal ramifications of this ruling in terms of possible prosecution of Reagan's would-be assassin, Hinckley, for Brady's murder. In the first, he says this:

The death of James Brady, President Ronald Reagan's press secretary, at age 73 earlier this week has been ruled a homicide by a medical examiner. Brady was injured during an attempt on Reagan's life in 1981. Let's assume that the government can prove beyond a reasonable doubt that, but for the shooting, Brady would have lived longer (pretty much the legal test for causation in this sort of situation). Could the shooter, John Hinckley Jr., be tried for murdering Brady, even though he has already been tried for attempting to kill Brady, and found not guilty by reason of insanity?

The answer is no, likely for two different reasons.

1. The year-and-a-day rule: At common law, a murder charge required that "the death transpired within a year and a day after the [injury]" (see Ball v. United States (1891), and this apparently remains the federal rule (see United States v. Chase (4th Cir. 1994)). Many states have apparently rejected this rule, given the changes in modern medicine that make it much easier to decide whether an old injury helped cause a death; but though the Supreme Court in Rogers v. Tennessee (2001) held that a court could retroactively reject the rule without violating the Ex Post Facto Clause (which applies only to legislative changes to legal rules) and the Due Process Clause, any such retroactive rejection of the year-and-a-day rule seems unlikely in this case (given that for the rule to be reversed the case would likely need to go up to the Supreme Court, and that in any event the rule had been applied relatively recently, in Chase).

Follow the link to read the rest of his argument.

In a follow up column, "President Garfield, President Reagan, murder, and jurisdiction," Volokh says this:

A post of mine on Friday asked, May the government try John Hinckley for James Brady's murder?. The answer it gave was "no" (even assuming that the government could prove that Brady would have died later but for the shooting): Neither the D.C. authorities nor the federal government may try Hinckley for murder, partly because of the "year-and-a-day rule," and partly because the jury finding of insanity is binding on both D.C. and the federal government.

But, some commenters asked, what about Virginia? True, Brady was shot in D.C., but he ultimately died in the Virginia retirement community in which he was living.

Could Virginia authorities therefore prosecute Hinckley for murder because of that?

He ultimately concludes "no" but brings up some interesting parallels to the assassination of President Garfield that I think our history buffs would enjoy reading.

So that's the upshot. It seems very unlikely that Hinckley will be prosecuted for murder.

Open thread to discuss news and politics.

posted by Open Blogger at 11:59 AM

| Access Comments