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  1. #11
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    Sep 2018
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    Default Re: Should a Murder Charge Be Even Considered

    The syllabus here provides some info:

    https://www.law.cornell.edu/supremecourt/text/437/28

  2. #12
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    Default Re: Should a Murder Charge Be Even Considered

    Quote Quoting L-1
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    Somebody correct me if I'm wrong, but the suspect has already been tried, convicted and is serving his sentence for attacking this woman. Even if her death is determined to be a direct result of his actions, isn't there a double jeopardy issue here?
    A double jeopardy inquiry can get a bit complex with multiple charges arising out of the same incident or chain of events. Typically the distinction is whether the two crimes share the same elements. If the more serious crime contains all the same elements but then just adds something more (like, say, malice) then the defendant cannot be convicted on both the lesser crime (usually called a lesser included offense) and the more serious offense. But if the lesser crime has elements to it that are not found in the more serious offense then a conviction on both may be had. Others have discussed that point already. Double jeopardy is not what is likely to present the problem here, though there is another potential issue involved here.

    Consider the Carpenter case. In that Ohio Supreme Court case, the defendant stabbed someone on 9/6/1984 and was charged with felonious assault for the attack. The defendant and the state then agreed to a plea deal on 1/7/1985 where the defendant plead to attempted felonious assault. The victim then dies from the stabbing injuries on 3/28/1986. On 1/28/1988, shortly after the defendant's release from prison on the attempted assault charge, the state charged him with the murder of the victim. At issue here was not a double jeopardy claim. As the dissent in the case pointed out, there was no dispute that the subsequent prosecution would not be barred by double jeopardy:

    It is well settled that a defendant may be tried for the murder of his victim even if he had been previously convicted of a lesser related offense prior to the victim's death. “The courts have long held that where a fact necessary to the commission of one offense occurs after the defendant has been convicted of another offense, multiple prosecutions are not barred by the Double Jeopardy Clause.” State v. Thomas (1980), 61 Ohio St.2d 254, 262, 15 O.O.3d 262, 267, 400 N.E.2d 897, 904.

    State v. Carpenter, 1993-Ohio-226, 68 Ohio St. 3d 59, 62, 623 N.E.2d 66, 69. The Ohio Supreme Court had thus previously declined to consider the Appeals court ruling in this case that the prosecution was not barred by double jeopardy. But it did finally agree to hear the case on a different ground: whether the prosecution had to reserve the right to pursue additional charges when it made the plea agreement in order to now prosecute the murder case. And the court concluded that the prosecution did have to reserve that right, and since it hadn't, the prosecution was not allowed. The court stated:

    In the present case, the state had actual knowledge of the alleged victim's condition at the time of the plea agreement and knew death was possible. Nevertheless, the state accepted a plea in which it agreed to reduce the charge of felonious assault to attempted felonious assault and recommend the imposition of a minimum sentence of two to ten years. By accepting a plea to a lesser included charge, the state obtained a definite prison term for the defendant and avoided the uncertainties of trial. In exchange, the appellant anticipated that by pleading guilty to attempted felonious assault, and giving up rights which may have resulted in his acquittal, he was terminating the incident and could not be called on to account further on any charges regarding this incident. We think this expectation was entirely reasonable and justified and that the prosecutor was aware of this expectation. Therefore, if the state wanted to reserve its right to bring further charges later, should the victim die, the state should have made such a reservation a part of the record.

    Accordingly, we hold that the state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant's plea.

    State v. Carpenter, 1993-Ohio-226, 68 Ohio St. 3d 59, 61–62, 623 N.E.2d 66, 68.

    So while there is likely no double jeopardy bar in this case, if the guy took a plea deal and the state did not reserve the right to pursue additional charges if the victim later died then he cannot now be charged with her murder. The article is not clear on whether he took a plea deal or was convicted at trial, and that is a significant issue here.

  3. #13
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    Default Re: Should a Murder Charge Be Even Considered

    But did Plas plead out in his case?

  4. #14
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    Ohio
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    Default Re: Should a Murder Charge Be Even Considered

    Thanks TM good info!

    Quote Quoting jk
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    But did Plas plead out in his case?
    This 2009 article states the charges, even attempted murder.

    https://www.cleveland.com/metro/2009...years_for.html

  5. #15
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    Mar 2013
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    Default Re: Should a Murder Charge Be Even Considered

    Quote Quoting RJR
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    I believe DJ does not start as a possible doctrine until a Jury is epanelled. Since none was on a murder charge, just the other charges, no DJ.
    I was under5 the impression all charges arising out of the same incident had to be heard at the same trial and you couldn't keep going back for multiple bites of the apple. (At least in my state.) And if I read the article correctly, he's been convicted and has been serving time in prison for what he did.

  6. #16
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    Default Re: Should a Murder Charge Be Even Considered

    Quote Quoting L-1
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    I was under5 the impression all charges arising out of the same incident had to be heard at the same trial and you couldn't keep going back for multiple bites of the apple. (At least in my state.) And if I read the article correctly, he's been convicted and has been serving time in prison for what he did.
    But he was not charged with Murder, as the woman did not die until now, therefore the Attempt charge. Murder is NOT a lesser included offense of Attempt.

    For example say facts came to light that OJ "conspired" to commit murder, he can still be tried on that even though he was aquitted of Murder, that's not DJ, unless CA law states it does.

  7. #17
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    Oct 2014
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    Default Re: Should a Murder Charge Be Even Considered

    Quote Quoting jk
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    But did Plas plead out in his case?
    RJR found the 2009 article after you asked this in which it states he did take a plea deal on this, so that was a good find. So now the question would appear to be whether the prosecution reserved the right to go for murder in the event the victim died. If the answer is no, then based on the Carpenter decision the state cannot prosecute the murder now. Once the Carpenter case was decided I'd not be surprised that prosecutors now routinely include a reservation for future prosecution in situations like this, but without seeing the actual plea documents I don't know if they did that in this case.

    Quote Quoting L-1
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    I was under the impression all charges arising out of the same incident had to be heard at the same trial and you couldn't keep going back for multiple bites of the apple.
    That is not the case under the federal constitution's double jeopardy limitation. What matters is whether the crime that was tried contained all the elements of the offense the state now wants to charge. State courts interpreting their own constitutions and statutes may, of course, adopt rules more favorable to the defendant than the federal constitution provides.

    Quote Quoting L-1
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    And if I read the article correctly, he's been convicted and has been serving time in prison for what he did.
    That particular fact doesn't bar the prosecution. If you read my post on the Carpenter case the defendant had been convicted of the stabbing and had already finished his prison term when the state brought the murder charge. The Ohio courts said that didn't violate double jeopardy. Rather, the problem for the state in Carpenter was that the defendant entered into a plea deal and the state did not reserve the right to pursue murder charges in the event the victim died. That's an issue separate from double jeopardy and one that is very much an issue of state law, so states may well vary on that.

  8. #18
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    Sep 2018
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    Ohio
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    Default Re: Should a Murder Charge Be Even Considered

    Quote Quoting L-1
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    I was under5 the impression all charges arising out of the same incident had to be heard at the same trial and you couldn't keep going back for multiple bites of the apple. (At least in my state.) And if I read the article correctly, he's been convicted and has been serving time in prison for what he did.
    Right, the state can't try every crime committed separately, it would be like "splitting a cause of action" in a civil suit.

    This statute explains a little about charging and conviction, though not directly on point of your question.

    http://codes.ohio.gov/orc/2941.25v1

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