Supreme Court Transfer Update 1 — Indiana Public Defender Council
We learned this week that Levi Sparks, Blake Layman and Anthony Sharp have all submitted petitions to the Indiana Supreme Court to have their cases transferred to that Court. Over the next few weeks we will be examining the briefs filed by the different parties asking for the transfer. We will also explore the brief filed by the state.
The first brief we are going to explore is the Amicus Brief filed by the Indiana Public Defender Council (Read the brief here — PDC Amicus Elk4 Pet). An Amicus Brief is a brief submitted by a group not directly involved in a case, but with a strong interest in the outcome of the case. Amicus means “friend of the court”.
Joel M. Schumm and Michelle C. Langdon both from the Indiana University Robert H. McKinney School of Law authored the brief. The brief is filed in support of members of the Elkhart 4, specifically the cases of Blake Layman and Levi Sparks.
The argument put forward by the Indiana Public Defender Council focuses on the actual text of the Indiana felony murder law. The law as written states,
A person who kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor or carjacking . . . commits murder, a felony.
The Public Defender Council argues that by reading the law it is clear that in order to be convicted of felony murder the defendant or a co-defendant must do the killing. In the case of the Elkhart 4 the homeowner killed Danzele Johnson.
The Public Defender Council reminds the court of the importance of “plain meaning” of the law. This means that laws needs to be enforced as written and people need to be able to understand the laws as written. The brief sites a previous case (Smith v. State) by stating that the law needs to be consistent with the “long-cherished principle of the American justice system . . .that a citizen may not be prosecuted for a crime without clearly falling within the statutory language defining the crime.”
Throughout the brief the Indiana Public Defender Council urges the Indiana Supreme Court to re-evaluate the Palmer case (see our article about Palmer here) arguing that the precedent does not match the text of the Indiana felony murder law. In this brief the Public Defender Council have carefully re-read the Palmer case file. They have pointed out that in the Palmer case the arguments never focused on the actual text of the law passed by the Indiana State Legislature. The Public Defender Council’s brief reminds the court that “This case [Elkhart 4] is perhaps the first time this Court has had the opportunity to adequately consider the statutory interpretation of Indiana’s felony murder statue.”
The final, and perhaps most interesting, argument in the Public Defender Council’s brief is looking at the language of the Indiana felony murder statute and comparing it to other states. There are two types of felony murder laws in the USA. The first is the agency approach. The majority of states in the USA follow an agency approach. The agency approach does not allow someone to be charged with felony murder if the victim or a third party does the killing (see our article on a felony murder case in West Virginia). Then there is the proximate cause approach to felony murder. This approach is followed by about 11 states and allows for a felony murder charge even when the co-perpetrator is killed. The Public Defender Council publishes a chart looking at the text of the felony murder statutes in Arizona, Florida, Georgia, Illinois, Missouri, North Carolina (we question the inclusion of North Carolina – see our reasons below)**, Ohio, Rhode Island, Texas, Wisconsin and Wyoming.
The Public Defender Council argues that states, which follow the proximate approach to felony murder, have language in their laws, which supports that interpretation. The Council argues that Indiana’s felony murder statute is constructed more in line with how laws are constructed in agency states.
The brief concludes by asking the Indiana Supreme Court to transfer the Layman/Sparks case so that the Court can have the opportunity to examine the plain language of the Indiana felony murder law.
In the coming weeks we will explore other transfer briefs presented to the Supreme Court in the case of the Elkhart 4.
READ THE FULL BRIEF PUBLISHED BY THE INDIANA PUBLIC DEFENDER COUNCIL — PDC Amicus Elk4 Pet
** www.freetheelkhart4.com are concerned with the decision to include North Carolina as a proximate state. In a recent ruling, published by the Supreme Court of West Virginia, North Carolina is considered an agency state. This comes from the case State v. Bonner where the court ruled
The issue is not whether these defendants may escape altogether criminal liability for their participation in the events of 29 May 1990; instead, the narrow issue is whether the common law theory of felony murder, as preserved in N.C.G.S. § 14-17, *599 will be extended to cover situations such as this, so that co-felons may be charged with first-degree murder as a result of the deaths of their accomplices at the hands of an adversary to the crimes. Based on longstanding precedent from this Court, and in accordance with the overwhelming majority of jurisdictions that have addressed this issue, we hold that there is no felony murder liability on the facts of this case.
We believe the Indiana Public Defender Council made a mistake by using the case State v. Torres. In that case the defendant Torres mistakenly shot his co-perpetrator. When Torres realized his mistake he shot his co-perpetrator again which killed him. We will send an email to Professor Schumm expressing our concern and hopefully we can publish his thoughts soon.
If this is a mistake we do not think that it hurts the argument as constructed. In fact it strengthens the argument because it confirms that another state, North Carolina, follows the agency approach to felony murder.