Ruling Affects Murder Cases

By Henri E. Cauvin
Washington Post Staff Writer
Thursday, July 27, 2006

The D.C. Court of Appeals has overturned a long-standing interpretation of local criminal law, ruling that a person charged as an accomplice to a premeditated murder cannot be convicted of that crime unless prosecutors can prove the collaborator had the same intent to kill as the actual murderer.

Previously, a person who aided and abetted in such a murder could be convicted of the same charge as the killer, even if it had not been proven that the accomplice acted with specific intent to kill. Now, the only way to obtain such a conviction would be as part of a conspiracy charge, in which prosecutors argue that the premeditated murder advanced the conspiracy and was a foreseeable consequence of it.

The opinion specifically addresses premeditated murder, and it is in homicide cases -- in which intent and state of mind are key elements -- that the ruling is likely to have its greatest impact.

But the judges did not limit the ruling to homicide cases, and that suggests the opinion could guide trial judges in other criminal cases in which people are charged with aiding and abetting.

The ruling does not appear to affect the charge of felony murder, which provides prosecutors with a way to file a murder charge against accomplices to a killing when the killing occurs during an inherently dangerous crime such as a robbery.

At the center of last week's ruling was a question about the instructions given to jurors in the 2000 murder trial of sisters Lakeisha Wilson-Bey and Sckeena Marbury. The court ruled that the instructions were inherently inconsistent, and Marbury's murder conviction was reversed.

Both women were charged with first-degree premeditated murder, and the instructions therefore required the jurors to find intent. But the same instructions told jurors that Marbury could, under the principle of aiding and abetting, be convicted even if she did not have the specific intent to kill.

In a 50-page opinion, the appellate court said that was wrong and that the error, based on the standard jury instructions, was "of constitutional magnitude."

Conviction "of first-degree premeditated murder on an aiding and abetting theory requires the prosecution to prove that the accomplice acted with premeditation and deliberation and intent to kill," Judge Frank Schwelb wrote.

Defense lawyers in the District had argued for more than two decades that the jury instruction was unfair. But even as more states moved away from such an instruction, the law held on in the District, having been endorsed many years earlier by a three-judge panel of the appeals court.

Under rules of the appellate court, the earlier decision could be reversed only if the full court elected to take up the issue, which it did last year after the three-judge panel once again rejected a defense appeal.

In that ruling, the judges all but encouraged the full court to take up the issue, which it agreed to do. Oral arguments were held in November. John O. Iweanoge argued for Wilson-Bey; Matthew M. Hoffman argued for Marbury; and David B. Goodhand argued for the U.S. attorney's office. Andrea Roth, an appellate lawyer for the D.C. Public Defender Service, argued as an interested party.

The unanimous decision last week overturned Marbury's conviction on first-degree murder and sent the case back to D.C. Superior Court.

But Marbury's other convictions for assault and other offenses were upheld, and the opinion does not cast doubt on any of the evidence against her. Only the instructions to the jury were challenged, and even with a proper instruction, the court said, it is possible she would have been convicted of first-degree premeditated murder.

The court found that her sister, alleged to have been the principal in the killing, was not harmed by the error in jury instructions, and all of her convictions were upheld.

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