The Kickham Comment - Boston Criminal Attorney Blog
In my previous post on this subject, I discussed how circumstantial evidence obtained by police can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. But why is the charge “murder” here, and not something lesser? Technically, Markoff is being charged with a violation of Massachusetts General Laws Chapter 265, Section1, which defines the crime as follows: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree.”
Do police investigators and the Suffolk County District Attorney’s office believe that this was a pre-meditated murder (such as with the recent Massachusetts case convicting Neil Entwistle? Not likely.
Instead, Markoff is being charged with murder almost certainly because of what is known as the “Felony Murder Rule”. This legal maxim provides that a charge of murder will apply if a death occurs during the commission of a felony (think of a bank robbery.) When this happens, the homicide can be considered first degree murder, without establishing intent to kill. This rule “injects” the malice element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged underlying felony, and the death must have resulted from the “natural and probable consequence of the felony.” Again, the prosecution doesn’t have to prove intent to kill; only that a death resulted during the felony, or during the attempt to commit the felony. Here, Markoff was allegedly in the act of kidnapping and robbery of the victim when the death occurred, hence the charge of murder. I’m told by persons close to the investigation that so far, prosecutors do not believe that Markoff intended to kill the victim, but that the shooting and death resulted when the victim resisted the robbery.
That doesn’t change the legal reality for Markoff. If a jury finds him guilty of first degree murder, the mandatory sentence for this conviction in Massachusetts is life imprisonment without the possibility of parole. Looking ahead, it’s possible that a jury could find Markoff guilty second degree murder. The difference between a first and second degree murder verdict is that, for a second degree felony murder conviction, the underlying felony must carry a penalty of less than death or a life sentence. In Massachusetts, a second degree murder conviction carries a maximum sentence of life imprisonment with the possibility of parole after 15 years. Another major difference from first degree murder felony murder, is that a defendant charged with second degree can waive the right to a jury trial, and argue the case before a judge. This is otherwise known as a “bench trial.”
Another possibility is that Markoff could be found not guilty of the murder charge, but found guilty of a lesser-included offense. As hard as it may be, remember: Our system provides that until convicted, the law presumes an accused to be innocent.