Mimesis Law
21 September 2018

Santos’ Murderers, But Not His Killers

Mar. 29, 2016 (Mimesis Law) — The Oklahoma County District Attorney charged Carlos Santos’ best friends, Jessey Gonzalez and Nicolas Gedela, both 18, with murder after the 17-year-old’s shooting death during a drug deal gone wrong.  This would be unremarkable, but for the fact that neither Gonzalez nor Gedela shot or killed Santos. Or anyone else, for that matter.

The deal itself was a pretty modest affair. Santos, Gonzalez and Gedela were trying to sell a quarter pound of marijuana for $850 to three strangers in a parking lot. But for that weed, Gonzalez and Gedela would be considered innocent bystanders: they played no immediate role in Santos’ death. They didn’t pull the trigger, want him dead or contribute to his death in any meaningful sense.

According to an Edmond police spokeswoman, all they did was sit in the same car as their friend.  The murder occurred as Gonzalez pulled out of the lot, when one of the men with whom they’d been dealing decided to shoot Santos in the head.

Gonzalez and Gedela drove Santos to the nearest hospital. He died the next day. Both surviving pot dealers were arrested and charged with first-degree murder, unlawful distribution of marijuana and, in Gonzalez’ case, possession of drug proceeds. The actual killer has yet to be identified or apprehended.

How is it possible that Gonzalez and Gedela are being held responsible for Santos’ murder? The answer lies in a common-law oddity, the felony murder doctrine. At its most basic, the felony murder doctrine holds that if someone dies during the commission of a specified felony, anyone involved in the felony can be charged with murder, in addition to the charges arising from the original (or “predicate”) felony.

The rule applies without regard to whether the person charged with felony murder actually participated in the killing. Nor does it require that the person charged with felony murder intended for the victim to die; it’s enough to prove that he intended to commit the predicate felony. In fact, the dead person need not even have been murdered: in a recent high-profile case, a Missouri biker was charged with his state’s version of felony murder after a highway patrolman crashed his car and died while pursuing him after he “resisted a lawful stop.”

As a result, the doctrine has a very broad reach. For example, it’s possible to be charged with felony murder when the police shoot one of your co-felons. Standards for causation vary from state to state: though the government always has to show that but for the commission of the predicate felony, the dead person would still be alive, some states subscribe to a stricter “proximate cause” theory. Additionally, the lack of an intent requirement for the killing makes it very difficult to successfully argue self-defense.

Internationally, America is essentially alone in keeping the felony murder doctrine on the books. Most states, plus D.C. and the federal government, have some version of the rule. (Oklahoma’s, for instance, applies even when the victim is a viable unborn fetus. It also makes a predicate felony of “trafficking in illegal drugs,” hence Gonzalez and Gedela’s charges.) The Supreme Court upheld and articulated a new standard for the death penalty for felony murderers in Tison v. Arizona (1987).

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