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Lawyers debate centuries-old legal concept

By Jeff Kass, News Staff Writer
March 18, 2001

She didn't pull the trigger, but it didn't matter.

The legal theory under which Lisl Auman was convicted dates to British common law in the 12th century, which held people responsible for unintended deaths that occurred in the course of other serious crimes.

If someone died of a heart attack during a robbery, for example, the robber was guilty of what was known as felony murder.

England abolished felony murder in 1957, in part because of an outcry over the harsh punishment, including death, handed out to those who did not mean to kill.

But in the United States, supporters argue that felony murder laws are useful for holding people accountable, and deterring crime.

Most states have basic statutes similar to Colorado's felony murder law.

"The public policy behind it is that a criminal is to be held liable for all their actions," says Peter Weir, executive director of the Colorado District Attorneys Council.

He used Auman's case as an example, while emphasizing that he did not mean to take a stand on the specifics.

"But for that burglary, the death would not have occurred."

Colorado lists six underlying crimes -- arson, robbery, burglary, kidnapping, sexual assault, and escape -- that subject people to felony murder charges.

Once a jury found Auman guilty of second-degree burglary, it didn't matter whether she had no intention of killing a police officer, under the law. Or if she didn't pull the trigger.

Auman was handcuffed and in a police cruiser when officer Bruce VanderJagt was shot.

"I think that's the real harm of felony murder," said University of Colorado law professor William Pizzi. "It can make you responsible for consequences that are unforeseen or unlikely in the extreme."

People are also subject to felony murder if the death occurs during the "immediate flight" from the underlying crime.

That is another point in Auman's case.

Defense attorneys critical of the law say the definition of "immediate flight" can be unfairly long, especially in Auman's case, where the original burglary and final shooting lasted through an extended police chase and two counties.

It is an issue public defender Kathleen Lord, Auman's attorney, said she will take up on appeal.

"Even if you assume there was a burglary in Buffalo Creek, it's over" by the time police catch up with Auman on the highway, Lord said.

"At the beginning it's not immediate flight, and at the end when she's in custody it's not immediate flight."

Other attorneys amplify that argument.

"I can't say I've heard of a case where the individual is in custody at the time of the murder and held responsible," said Cynthia Orr, an attorney with the San Antonio firm of Goldstein, Goldstein and Hilley, who is helping draft a National Association of Criminal Defense Lawyers brief on Auman's behalf.

Lord said she may also use the "choice of evils" defense because she contends that Matthaeus Jaehnig ordered Auman to take the car's wheel while he shot at police.

"Is she guilty of helping him, or did she really have no choice?" Lord said. "The notion was, take the steering wheel or crash into traffic."

Supporters of the law say the events Auman set in motion were still spinning when VanderJagt was shot.

"The prosecution will argue it was a continuous chain of events, and the prosecution will no doubt argue for an expansive definition of what immediate means," said Denver criminal defense attorney Nathan Chambers, who represents convicted Oklahoma City bomber Timothy McVeigh.

Denver defense attorney Scott Robinson says of Auman's case: "It's not necessarily an unfair stretching of the facts, but it's not two guys holding up a store and someone gets shot."

The state attorney general's office, which will speak for the prosecution on appeal, declined comment until the first briefs are filed.

 
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