A Condescending Asshole!
And the legal fallacy of a subsequent, predicate felony
If you have ever seen a license plate from New Mexico it proudly touts "The Land of Enchantment" as an open invitation to come and experience all the beautiful vistas and scenery to be discovered at the end of the Rocky Mountains. But, to anyone in the New Mexico Department of Corrections, Enchantment is often replaced with Entrapment as an ongoing joke that when it comes to New Mexico's legal system the law is a chimaerical entity that metamorphoses based on the needs of the prosecutor or the agenda of the court. And as someone who is wrongfully convicted of killing a man I didn't kill and committing armed robbery against the same man in a way that defies our understanding of the spacetime continuum, I tend to think that the Land of Enchantment suits New Mexico just fine.
You might be someone who finds themselves on the fence about whether or not I'm guilty of murdering a man in cold blood twenty years ago. You're reasoning might go along the lines of something like, well, yeah, the court may have violated your constitutional right to confrontation, the real killer's pregnant wife may have lied to save her husband and avoid being prosecuted herself, and maybe there was an underhanded plot that had every intention of making you go down for something you didn't do. And, maybe your trial attorney who admittedly only spent $50 on investigation was really trying to help the then-embattled district attorney, former coworker and friend win a case to help save her political career. Yes, all of these are possibilities, but, you would then say something like, then again, according to what all the character witnesses presented at your trial, nothing good was said about you, either. In fact, the general consensus was, and, maybe still is, that you're a condescending asshole who—even if you're not a murderer—should probably be right where you are because the world is a better place without you in it.
I readily admit that what was said about me at trial by the carefully selected character witnesses the prosecution presented to the jury painted a picture of a dishonest, womanizing, opportunistic, self-centered asshole who absolutely needed to be found guilty of whatever criminal charges the prosecution could come up with. If not for actual guilt, then, as I said, because the world would seemingly be a better place without me in it. But, surely nobody is so naïve as to believe that in the long history of criminal prosecutions that have taken place in this country since its inception that a prosecutor has ever knowingly set out to intentionally procure a witness to say something good about someone being prosecuted for a crime; and, given the fact that my own trial attorney admitted under oath at a state evidentiary hearing that he hadn't investigated or even developed a defensive strategy other than "confusion" it stands to reason that prosecution, character witnesses at a criminal trial aren't exactly presenting an unbiased assessment of anything, much a less a person's character.
That being said, I'm definitely not someone who is actively going to attempt to change someone's potentially misguided opinion about me. Which isn't to say that I don't care what people think of me, it just means that I'm not in a position to perform a roll-call asking for anyone who thinks I'm a good person to please stand up. What I can do is exactly what I am doing: write, present, and otherwise speak on the illegality of what is taking place in my life.
And on that note, the fact that the predicate felony used to convict me of first-degree/felony murder allegedly took place as separate, standalone event after the murder is confusing to anyone grounded in the paradigm reality of past-present-future as we know it. In other words, how does a separate, subsequent event serve as a predicate cause for a murder?
Allow me to better explain the circumstances leading up to the question before actually addressing the question. And in order to do that I must explain a fictitious legal concept called felony murder.
The origin of felony murder dates back to English common law and can be explained through a relatively simple idea: any homicide committed during the perpetration or the attempted perpetration of a felony constituted felony murder, and death was the punishment. Of course, death was also the punishment for most felonies so it didn't readily matter whether the defendant was executed for committing the predicate felony or the subsequent homicide because the end result was one in the same.
For centuries legal scholars have debated the relative fairness of the legal fiction that is felony murder. Because when the legal concept is examined through the lens of constitutionality—i.e., the Due Process Clause of the Fourteenth Amendment—a problem arises. Due Process demands that the prosecution prove every element of a criminal offense beyond a reasonable doubt. Or, as Justice Brennan wrote in a Supreme Court decision in 1979, "the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the crime with which an accused is charged." Which helps explain why felony murder is somewhat of a legal fiction and certainly not an easy concept to follow when the constitutional right of Due Process is added to the equation.
As the concept follows: a death occurs during the course of a criminal transaction (felony) and the legal definition of the outcome is murder in the first-degree. But, wait just a moment, because, if Due Process demands that the prosecution prove every element of a criminal offense beyond a reasonable doubt, then, first-degree murder and the elements for which that entails must likewise be proven beyond a reasonable doubt. Do you see the problem? Which brings us back around to the initial question, how does a subsequent event serve as the predicate felony for arriving at felony murder?
The obvious answer is that doesn't and it can't. But I'm here to tell you that it absolutely does, and, it did. At least, it did in my case.
The District Attorney who prosecuted me twenty years ago found herself in an embattled, political predicament at the time. She had allegedly used her elected position to communicate a payoff to her son's victims from a drug-induced crime spree, and those who were allegedly being encouraged to defer from their criminal complaints against her son had come forward to the media. Which, you can imagine the barrage of corruption claims that pursued her administration. When the murder case for which I was convicted came to her desk, she didn't just have the problem of needing to prosecute the case, as was demanded of her elected office, she also had the added problem that the victim's family was federal law enforcement (U.S. Marshals). So, when she removed the assigned Assistant District Attorney from my case and assigned herself she was very much walking out on a political-limb, where she probably felt that a conviction against me would alleviate some of the public concerns about corruption. Which brings us to why she needed a predicate felony in order to seal my fate with first-degree/felony murder, and armed robbery was her choice.
The victim's wallet was missing from his person when the police arrived at the scene of the crime. And weeks after I was already in police custody the wallet appeared inside an empty locker at a Jewish Community Center in Tucson, Arizona, where on the day it was found—accidentally dropped or placed—there were only eleven men who had signed in. One of those men was none other than Dennis Melin, ex-father-in-law, who had been openly threatening my life for weeks prior to the crime for a fallout we had had in Phoenix over a business. There was zero evidence presented or insinuated suggesting that I ever had possession of the victim's wallet. Even the actual killer, a man so adamant about saving himself at my expense, didn't place the wallet in my hands. Nevertheless, that was the prosecution's theory at trial.
Keep in mind that the District Attorney didn't sideline one of her ADAs just to prosecute a case herself, she did it to make a political statement about the efficacy of her administration. Which meant that she needed first-degree murder and to get there she needed a predicate felony, hence, armed robbery. But, she had another problem, even if she could convince the jury that an armed robbery had taken place, which wasn't too difficult given my trial attorney's non-investigative strategy and expended budget of fifty dollars, she was faced with the problem that I couldn't legally be sentenced to first-degree/felony murder and the predicate felony because of double jeopardy laws that prevent a defendant from being punished twice for the same crime. Her solution was to present a theory to the jury where the murder and the armed robbery took place as two separate events, which thereby made it possible to convict and punish me for both crimes.
When the jury reached its verdict and found me guilty on all counts my trial attorney at some point made the objection to the court that double jeopardy prevented me from being sentenced for both the predicate felony (armed robbery) and first-degree/felony murder. And this is where you'll really want to pay close attention, because, the court's response was priceless: in that, since the state's theory of the case was that the armed robbery took place as a separate, subsequent event to the initial murder the court was going to allow the armed robbery charge to stand on its own and thereby sentence me accordingly.
Did you catch the problem? I certainly didn't. My trial attorney, though having raised the obvious objection, didn't seem to notice the problem. And no less than six appellate attorneys have all failed to notice a problem that is now so blatantly obvious that all I can do is laugh out loud—again and again and again and again!
If you're asking yourself what's so hilarious that would make me need to lay down on the floor, let me explain it by taking a moment to define armed robbery as the state legislature has defined it: "robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence"; and to arrive at armed-robbery you need the added caveat of being "armed with a deadly weapon." If the perpetrator is armed with a deadly weapon the crime is a second-degree felony, if unarmed it's a third-degree felony. If you're still not seeing the hilarity of what I'm telling you, I'll explain it.
Legally or actually speaking, nobody—not even a condescending asshole—can commit robbery, much less armed-robbery against a person who is already deceased. Of course, you might be thinking, well, what about when a perpetrator walks into a convenience store, shoots and kills the clerk behind the counter and then proceeds to clean out the cash register? That would undoubtedly still be armed-robbery despite the fact that the victim is presumably already dead when the actual robbery part of the crime takes place. And, you're right, that is armed-robbery.
In fact, the New Mexico Supreme Court addressed this issue in 2013, and found that, "as an abstract principle of law, one ordinarily cannot be guilty of robbery if the victim is a deceased person, this principle does not apply [however] where a robbery and homicide are part of the same transaction and are so interwoven with each other as to be inseparable." So, in the aforementioned hypothetical of the armed-robbery in a convenience store where the clerk is murdered before the cash register is pilfered the armed-robbery stands and should be charged accordingly. But, in my case where the overzealous, politically embattled district attorney was attempting to create a criminal narrative where the murder and the robbery stood alone as separate crimes for the purpose of burying me under as many years as possible she created a legal and factual impossibility, in that, if the murder was followed by a separate event at a later time in the day by a robbery, how does it stand as the necessary predicate felony for arriving at felony murder?
Logically speaking a predicate felony can't occur subsequently on the timeline of events without resorting to wormholes or other theoretical concepts, but yet, here I am in the Land of Enchantment where apparently I traveled into into the future to commit an armed-robbery and then traveled back in time to murder the victim who would otherwise already had been dead at the time of the robbery had I just allowed the normal chain of events to follow. But since I wanted to help the district attorney with her embattled political career, I decided to step into the realm of quantum theory and use an Einstein-Rosen bridge to time travel and thereby create a paradox where a subsequent event serves as a predicate felony to ensure that I would be sentenced to both the subsequent-predicate felony and first-degree/felony murder. Let it not be said that I have not done my share to help a local politician clean up her image!
