President Garfield, President Reagan, murder, and jurisdiction

A post of mine on Friday asked, May the government try John Hinckley for James Brady’s murder?. The answer it gave was “no” (even assuming that the government could prove that Brady would have died later but for the shooting): Neither the D.C. authorities nor the federal government may try Hinckley for murder, partly because of the “year-and-a-day rule,” and partly because the jury finding of insanity is binding on both D.C. and the federal government.

But, some commenters asked, what about Virginia? True, Brady was shot in D.C., but he ultimately died in the Virginia retirement community in which he was living.

Could Virginia authorities therefore prosecute Hinckley for murder because of that? The Court has held that the Double Jeopardy Clause (which would include the collateral estoppel doctrine) doesn’t preclude one sovereign — such as Virginia — from trying someone who has been acquitted in the courts of another sovereign (the United States). And whether Virginia recognizes the year-and-a-day rule (under which an attacker can only be convicted of murder if the death occurs within a year and a day of the attack) is not clear, though Clark v. Commonwealth (Va. 1893) acknowledges the existence of the rule in passing. [UPDATE: A 2009 statute expressly abrogated the year-and-a-day-rule -- thanks to commenter CockleCove for the pointer -- but statutory changes like that can't be applied retroactively, given the Ex Post Facto Clause, so the question would be whether the year-and-a-day rule would be seen as having still existed in Virginia as of 1981.]

Of course, a state generally doesn’t have jurisdiction over a crime unless the crime was committed within the state (with some exceptions). But murder involves (1) causing (2) another’s death. What happens if the death is caused in one state, but the death happens in another state?

Oddly, this very issue came up with a presidential shooting 100 years before the Reagan shooting: the killing by Charles Guiteau of President James Garfield (the only president to have published a proof of the Pythagorean theorem). But the question was the flip side of the one the commenters asked. Garfield was shot in D.C., but died two and a half months later in New Jersey — and Guiteau argued that this meant he couldn’t be tried in D.C.

In a court decision that proved highly influential throughout the U.S., Guiteau’s argument was rejected. The murder was seen as being triable in “the place where the blow was struck,” and “the place of death” was seen as “immaterial.” And the dominant view, as best I can tell, was that the murder could only be prosecuted where the victim was injured, and not where he eventually died. “[I]n such case it is the law of [the state where the mortal blow is given] that is violated, and not the law of the state where death may happen to occur” (Stout v. State (Md. 1892)). “[T]he offence was committed where the mortal wound was inflicted and the crime was complete there so far as the defendant was concerned” (Robertson v. State (Fla. 1900)). “[T]he crime is committed at the place where the act is done which results in the injury or death, and … the prosecution for such act is properly conducted at the place where the act is done, and not where the death may occur.” (Commonwealth v. Apkins (Ky. 1912).

“The place where the blow was inflicted is the place where the crime was committed, and it is wholly immaterial to what points the injured man wandered or was removed, or the extent to which he changed his place of residence, or where he died” (Kirkham v. People (Ill. 1897)). “[T]he place where [the defendant gives the fatal blow] is the place where he commits the crime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime” (State v. Bowen (Kan. 1876)). “It is for his acts that defendant is responsible. They constitute his offence. The place where they are committed, must be the place where his offence is committed, and therefore the place where he should be indicted and tried” (State v. Gessert (Minn. 1875)).

Now these were rulings about state law, not about any constitutional constraints, and the courts contemplated that the rule could be changed by state statute (at least when the state has a sufficient connection to the killing, such as when the victim dies in the state). But as I read the relevant Virginia statutes, they don’t actually purport to change the rule in a Hinckley-like case.

Va. Code § 19.2-248 (“Venue when mortal wound, etc., inflicted in one county and death ensues in another”) provides that, “If a mortal wound, or other violence or injury, be inflicted, or poison administered in one county or city, and death ensues therefrom in another county or city, the offense may be prosecuted in either.” That, though, seems to me to be limited to intrastate venue disputes, and doesn’t claim Virginia jurisdiction over shootings that take place in D.C.; for a case so holding as to a similar Michigan statute, see People v. Duffield (Mich. 1972). And Va. Code § 18.2-37 (“How and where homicide prosecuted and punished if death occur without the Commonwealth”) seems to reaffirm the traditional place-of-fatal-blow rule:

If any person be stricken or poisoned in this Commonwealth, and die by reason thereof out of this Commonwealth, the offender shall be as guilty, and shall be prosecuted and punished, as if the death had occurred in the county or corporation in which the stroke or poison was given or administered.

To be sure, this statute doesn’t by itself exclude the possibility that Virginia would punish both those cases in which the attack takes places in Virginia and the death happens elsewhere, and those cases in which the attack takes places elsewhere and the death happens in Virginia. But neither does the statute expressly claim for Virginia jurisdiction over the latter kind of cases. And given the background rule I described above — a rule that Va. Code § 18.2-37 seems to echo — I think the better view is that Virginia would view Hinckley’s case as a matter for D.C. authorities, D.C. being the place “in which the stroke … was given.” To quote again one of the cases mentioned above,

[T]he place where [the defendant gives the fatal blow] is the place where he commits the crime, and that the subsequent wanderings of the injured party, uninfluenced by the defendant, do not give an ambulatory character to the crime.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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