2016.027: Law of Parties and Felony-Murder Rule


Wood was convicted and sentenced to die under Texas’ arcane felony-murder law, more commonly known as the “the law of parties” — for his role as an accomplice to a killing, which he had no reason to anticipate.

(Hedayati: In Texas death row case, punishment does not fit crime.)

That Wood “had no reason to anticipate” the killing should have prevented him from being convicted under a parties theory. Here’s the Law of Parties:

Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Texas’s Law of Parties is surely draconian. But it’s distinct from the Felony-Murder Rule:

Sec. 19.02. MURDER.

(b) A person commits an offense if he:

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Calling the Law of Parties the Felony Murder Rule makes people stupider. Where did Hedayati —described by his bio in the Statesman as an attorney, but not a criminal lawyer — get the idea that they are the same thing? My guess is Wikipedia, which until I edited it just now equated the two.

What’s more, Hedayati’s premise — that the Law of Parties required Wood’s conviction — is false: If it is true that Wood “had no reason to anticipate” the murder then it is not true that the murder “should have been anticipated as a result of the carrying out of the conspiracy.” He may not have anticipated it, but in order to convict him a jury found that he should (that is, had reason to) have anticipated it.

Hedayati goes on:

Under the law of parties, those who conspire to commit a felony, like a robbery, can be held responsible for a subsequent crime, like murder, if it “should have been anticipated.” The law does not require a finding that the person intended to kill. It only requires that the defendant, charged under the law of parties, was a major participant in the underlying felony and exhibited a reckless indifference to human life. In other words, neglecting to anticipate another actor’s commission of murder in the course of a felony is all that is required to make a Texas defendant death-eligible.

Where he oversold the Law of Parties on anticipation, here he undersells it on participation. The Law of Parties does not require that the defendant have been a “major participant in the underlying felony,” but only that he be a conspirator — that he have agreed with another to commit the underlying offense and that he or the other have performed an overt act. If you and I agree to rob a convenience store and you go rob the convenience store, we are conspirators.

Nor does either the Law of Parties or the Felony-Murder Rule require that the party “exhibit a reckless indifference to human life.” The former requires that the murder “should have been anticipated”; the latter requires “an act clearly dangerous to human life.”

The idea that I can be executed for a death that I didn’t cause, didn’t help with, and didn’t anticipate is harsh. Most people, presented with the actual law, might agree that it is too harsh. But making things up is unhelpful, and is likely to backfire when people realize that you haven’t told the truth. The law is not complicated, and Hedayati should have gotten it right before sending it in for publication.


One response to “2016.027: Law of Parties and Felony-Murder Rule”

  1. I have a friend who had a husband who robbed a convenience store, murdering the clerk. She had driven him there and had no idea of what he was about to do. She did 20 years anyway.

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