Murder by Forgery

Murder by Forgery - Essay with Stories

By Damon Nomad



The Felony Murder Rule

If you like US police or legal procedural television shows or movies, you have probably come across the felony murder rule. Let's start with a quick summary of the legal basis of this popular cinematic device. As a first step, liability for a crime requires a criminal act accompanied by criminal intent. For those who like to toss about some Latin, actus reus (act) must be accompanied by mens rea (state of mind or criminal intent). Common law murder requires what is known as specific criminal intent. The prosecutor must prove that the accused intended to do grave bodily harm or kill the victim.

The felony murder rule was carved out as a kind of exception to the specific intent required for murder. It was formulated especially for cases involving conspirators participating in dangerous felonies. A classic case is an armed robbery where one assailant kills a victim. The felony murder rule can operate even if the killing was not planned and the robbers all agreed there would be no killing beforehand. According to the rule, all of them can be found guilty of murder for their participation in the underlying felony, armed robbery. Maybe this sounds okay, a bunch of hoodlums with guns, what about the person in the getaway car with no gun? They could still be found guilty of murder under the felony murder rule, but things get more complex. We will hold that discussion for another day.

There have been some disagreements and inconsistent case law surrounding the scope of felonies which should fall under the felony murder rule. Generally, words like inherently dangerous get tossed about. What exactly does that mean?

Let's use two stories with a little dialog to explore this question and take away some of the abstraction. Randolph is a graphic artist making ends meet by forging corporate checks. His partner Alexander handles logistics. Could Randolph be charged with murder when Alexander kills someone as part of their ongoing criminal enterprise? Even if the killing is without Randolph's knowledge and contrary to their prior agreement?

Let's put Randolph into two different but similar circumstances and see what we might conclude. We will take it as a given that forging corporate checks is a felony, that is not a stretch. We will assume that this jurisdiction has a simple felony murder statute. The law is not specific on the felonies that trigger the liability. Stipulating that anyone participating in a dangerous felony can be convicted of murder for a homicide caused by the underlying felony.


A Delivery Gone Bad

Randolph rolled out of bed and turned on the floor fan. It was sweltering hot and he can't fall asleep. The cost of electricity makes the AC unit in the window nothing more than a bookshelf. He laid back down, it's not just the heat but the stress of life that is keeping him awake. He has significant regrets about ever getting into this business, but he has no choice now. His skill forging corporate checks is in high demand, with an advertising port on the dark net. He can't get permanent work in the legitimate world of graphic arts anymore. His reputation was destroyed by claims of copyright infringement. No one believed his side of the story. The client gave him the sketch to work from and told him they had already paid for a copyright search. After a lawsuit was filed, the client claimed they told Randolph he needed to have a copyright search before proceeding. His company didn't want to lose the client, so they settled the lawsuit. They fired him and spread the word that he should not be trusted. He nearly went broke and got tossed out of his apartment. He was lucky that Alexander let him crash in his place until he could find something. It seemed like luck at the time, until he realized that Alexander was a part-time delivery guy for drug dealers.

Randolph sighed quietly as the fan blew stale air across his face, that was nearly two years ago. Now he has his own place and Alexander is his business partner. Alexander worked the people end of the business dealing with clients, finding new targets, and taking care of delivery and collections. He knew Alexander threatened people sometimes but they had agreed to no violence. Randolph just had to focus on the product, forging corporate checks. He drifted off to sleep, he would finish the Straub Bakery checks tomorrow morning.

         *******

Bam. Bam. "Randolph! Open up." Bam. Bam.

Randolph's eyes flew open, "Okay! Crap don't knock the door down!" He put on a pair of sweatpants, a shirt, and flip-flops, and headed for the door. What was Alexander doing here so early?

Alexander rushed through the door and plopped onto the sofa. "How about a cup of coffee? Got the Straub checks ready? Delivery is at 11:30."

Randolph sneered, "No they aren't ready. Just need to do a final check and then print them. What time is it?"

Alexander shrugged with a smirk. "It's seven. I woke up early and didn't have coffee, thought you might have some. Figured we could get an early start on things."

          *******

A few hours later Alexander bounded down the stairs, with the box of fifty Straub Bakery checks. They would get two hundred dollars for the job. He guesses the customer will use them to float around a thousand dollars in small checks, getting maybe seven or eight hundred dollars in cash. By the time the Bakery knows what is going on he and Randolph will be onto the next business. Thousands of these small businesses between New York and Philadelphia as potential targets. They can keep this going for another five years if they are smart. Pulling in nearly eighty grand this past year, split fifty-fifty. He tossed the box into the passenger's side front seat and jumped in the driver's seat. It's a forty-minute drive, he glanced at the time on his mobile phone, he should be fine. He lit a cigarette and put the car into gear.

He sped up when he saw the light go yellow, to make it through before the light turned red. He didn't see the woman with the baby stroller starting to cross the street. She froze in the middle of the crosswalk right in his path. Alexander swerved toward the middle of the street to avoid hitting the woman and her baby. An express messenger on a bike darted out from behind traffic coming from the opposite direction, trying to speed through the intersection. There was nothing Alexander could do, he hit the bicycle going nearly forty miles per hour, just slightly over the speed limit. The accident wasn't his fault, but the biker was dead.

          *******

Randolph sat nervously tapping his fingers on the table in the interview room, waiting for detective Lewis to return. Randolph knows they found the checks in Alexander's car and he is suspicious that Alexander has been talking trying to get some kind of deal. Randolph has already told Lewis he doesn't want a lawyer. He figures he will plead guilty and use this as the chance to get out of this life. The door opens, and a woman in a suit is with Lewis, they sit down across from Randolph.

The woman's eyes narrow, "I'm Emily Grant deputy assistant prosecutor. Detective Lewis tells me you have already been given a Miranda warning. You waived the right to an attorney. I understand you might want to cooperate."

Randolph took a deep breath, "Is forgery a felony?"

Grant nodded slowly, "Yes it is. Did Lewis tell you the bike messenger was dead at the scene?"

Randolph grimaced, "Yeah, that is a horrible accident. I am ready to give my statement about the forgery."

Grant leaned forward with a curt nod, "We can take your statement. Just so you are clear, the district attorney's office will be prosecuting both you and Alexander for murder."

Randolph's mouth fell open, "Murder? What are you talking about?"

Grant continued, "The felony murder rule. Alexander told us he was delivering forged checks straight from your apartment when he killed that messenger. You change your mind about a lawyer?"


A Rough Customer

We start the story with Alexander knocking at Randolph's door that morning, same basic setup. The traffic accident never happened. The day will play out a little bit differently.

         *******

Alexander rushed through the door and plopped onto the sofa. "How about a cup of coffee? Got the Straub checks ready? Delivery is at 11:30."

Randolph shook his head with a worried expression. "No, I need to print the last hundred. What time is it?"

Alexander gestured for calm, "Calm down, it's only seven. I woke up early and didn't have coffee, thought you might have some. And I can't be late to meet these people." Alexander reached into his jacket pocket took out a semi-automatic pistol, dropped out the magazine double-checking it was full, and popped it back in. He put the gun back in his jacket.

Randolph winced, "I think we should avoid customers like this. You shouldn't carry a gun. You know what we agreed. Wear a vest and run if someone has a gun."

Alexander huffed, "They order big volume and pay a premium, five thousand dollars for this one job. We get a few more customers like this, we could each be making six figures. It's my life on the line. I ain't wearing no vest."

         *******

Randolph sat nervously tapping his fingers on the table in the interview room, waiting for detective Lewis. He knows Alexander got into a shoot-out during the delivery this morning, he got shot but according to the detective, he will be fine. He took a bullet in the shoulder. One of the customer's men was not so lucky, he is dead. Lewis says Alexander already told them what was going down and they have the box of forged checks. Randolph has told Lewis he doesn't want a lawyer. He figures he will plead guilty to the forgery and use this as the chance to get out of this life. The door opens, and a woman in a suit is with Lewis, they sit down across from Randolph.

The woman focused her gaze on Randolph, "I'm Emily Grant deputy assistant prosecutor. Detective Lewis tells me you have already been given a Miranda warning and you are waiving the right to counsel. You sure about that?"

Randolph shrugged, "Yeah, I think so. What is the maximum sentence I could get?"

Grant smirked, "Life."

Randolph's mouth fell open, "For forgery?"

Grant gave a curt nod, "Felony murder, forgery is a felony."


Concluding Comments

On the surface, Randolph did the same thing that morning in each scenario. Met with his partner working on their forgery scheme. He gave Alexander the forged checks for the next delivery. In both cases, someone died during the delivery of the bogus checks. Randolph never endorsed killing anyone and Alexander agreed to no violence. Forgery does not seem like an inherently dangerous felony. Your instincts are probably telling you there should be different results. The legal jargon is that the felony murder rule makes the most sense when the homicide is a reasonably foreseeable consequence of the underlying felony. Of course, lawyers can argue for days about what is reasonably foreseeable.

In considering the two cases, it is fair to say that the commission of the crime includes the delivery of the forged checks. Is it reasonably foreseeable, that the delivery of a box of forged checks would result in a fatal traffic accident? Most people would say no. What if there was evidence that Alexander had a history of serious accidents during deliveries of forged checks? Could you argue that the delivery end of their forgery operation made this a dangerous felony? Sounds a little more promising.

Delivering a box of forged checks to some shady characters while carrying a firearm sounds dangerous. Seems to be a strong argument that it was reasonably foreseeable that this delivery could lead to gunfire. Could you convince a jury that Randolph knew about the risk and should be held accountable for felony murder?

There is no precisely correct answer in either case. Share your comments about what you might be inclined to do as the prosecutor in these two examples. Feel free to add some facts if you would like.