When Law and Order Collide

On Thanksgiving morning, Joseph Henry III was playing with his girlfriend's infant daughter when the girl began to cry. He tried to calm her by throwing her up in the air six or seven times, including one instance when he spun her in the air, he later told police. But within minutes, she started moaning, her eyes became glossy and her body went limp. She died the next day, and Henry was taken into police custody and charged with first-degree murder.

People whose legal training comes from John Grisham movies and episodes of the myriad Law & Order franchises may be surprised to learn that a first-degree murder conviction in Oklahoma does not necessarily require proof that the defendant intended to kill the victim. In Henry's case, because it involves a child, prosecutors would only need to prove that he willfully used "unreasonable force" to make a first-degree murder charge stick -- and the Police Department's assessment that the 7-month-old likely died from being shaken fits that bill.

In fact, the law requires a first-degree murder charge in cases of suspected child abuse that result in death.

A convicted criminal guilty of first-degree murder faces death, life in prison without the possibility of parole or life in prison with the possibility of parole. A life sentence equates to 45 years, and felons must serve at least 85 percent of that sentence, or about 38 years.

"[The statute] is harsh on child abuse murder, but it's a popular thing for the legislature to do, to protect children," Tulsa attorney Kevin Adams said.

Oklahoma Chief Public Defender Pete Silva, however, said he doesn't think harsh penalties act as a deterrent for violent crimes, and the wording of the child abuse murder statute "gets us into the area of 'There but for the grace of God go any of us.'" The use of "unreasonable force," he said, could apply to any number of situations in which the defendant did not intend to harm, let alone kill, the child.

"Let's say a dad is watching the Super Bowl and there's two seconds left and it's a plunge at the line, and a toddler walks across [the TV screen] and the dad pushes the child out of the way and the child hits their head on the fireplace and cracks their head open and dies," Silva said. "Most people would agree that pushing the child at all would be unreasonable force, so technically the dad could be guilty of first-degree murder."

Oklahoma City resident Theresa Hernandez was charged with first-degree murder in September 2004 after her baby was stillborn, because prosecutors said the stillbirth resulted from Hernandez's use of methamphetamine. Some medical experts disputed that claim, however, saying research has not established a link between methamphetamine use and stillbirth. She eventually pled guilty to second-degree murder and was released in November of this year.

Oklahoma cases involving children, however, are not the only ones in which a person can be charged with first-degree murder if there is no proof of intent. In fact, Oklahoma has charged, convicted and even executed people who were accomplices in crimes that led to a person's death, without proving intent to kill.

Attorney Kevin Adams recalled the 2002 case of a McDonald's restaurant robbery gone awry. Three men entered a McDonald's on Southwest Boulevard to rob the establishment, including Delvin Lamar Golden, whom Adams later represented on appeal. Golden said he was coerced into robbing the restaurant and actually left the scene before the robbery was completed because he did not want to commit the crime. Golden therefore did not witness the events that ultimately led to his conviction for first-degree murder, Adams said.

After Golden's two accomplices completed the robbery, they fled the scene and were tailed by police officers and a police dog. One of the men, Charles Turner, shot and wounded the dog, and the officers returned fire, killing Turner. Golden was hiding under a boat in a nearby yard while these events unfolded.

Golden and his surviving accomplice, Christopher Michael Dickens, were both tried and convicted of first-degree murder for the death of their accomplice, who had been killed by a police officer. Golden and Dickens are serving life sentences, with the possibility of parole.

"This guy (Golden) was hiding under a boat at the time. He changed his mind and runs out of the place -- he wasn't even around at the time, and the Court of Criminal Appeals says it's first-degree murder," Adams said. "I mean, that's crazy."

Assistant District Attorney Doug Drummond, however, said that a person taking part in an armed robbery must realize that a "foreseeable" consequence of such a crime is that a person could end up dead -- even if that person is an accomplice. Silva said the state legislature changed the law during the 1990s specifically to enable prosecutors to charge felons with first-degree murder when their accomplices get killed.

"There are certain violent felonies that our legislature has decided that if you make the decision to engage in that violent felony and somebody dies as a result of you being engaged in that conduct, you ought to be treated as harshly as someone who's performed a malice aforethought murder," said Steve Kunzweiler, chief of the criminal division of the Tulsa County District Attorney's Office.

"If I go into a bank and I'm armed and going to rob the bank, and a security guard or somebody has a heart attack in response to my brazen or violent conduct ... I ought to be punished. I should have anticipated the consequences -- that death could ensue."

Kunzweiler also used the example of an arsonist who does not intend to kill the people inside the building he burns: "I should probably know that people could die or get severely injured."

Deadly Impulse

The Oklahoma Legislature is not the only state governing body that has said those types of criminals should be prosecuted as murderers. All except four states in the country have a "felony murder" statute (though some of those do not allow felony murder to be prosecuted as first-degree murder). In 24 of those states, a person convicted of felony murder can be given the death penalty, according to the nonprofit Death Penalty Information Center.

Seven people have been executed since 1985 for felony murder, according to the nonprofit, and the most recent, Steven Hatch, was executed by the State of Oklahoma in 1996. Hatch participated in a 1979 home invasion in Okarche with Glen Ake. After raping a 12-year-old girl and robbing the family of $43, Hatch left the home to wait in a vehicle while Ake shot all four family members, killing two of them.

The benefit of the death penalty as a deterrent for future crimes has long been debated, but University of Tulsa Associate Professor of Law Lyn Entzeroth said research has generally shown the use of the death penalty does not prevent similar crimes. She said she was not aware of research into the deterrent effect of long-term sentences such as life or life without parole, but Kunzweiler said he thinks the deterrent effect of harsh sentences in some cases is "pretty obvious."

"If a guy flying like a bat out of hell in a car [eluding an officer] gets prosecuted for murder [after hitting someone] ... other people will get second thoughts," he said. "People do give a second thought of 'Can I lose my freedom for the rest of my life?'"

Richard O'Carroll, a defense attorney who has handled more than 20 death penalty cases, including at least six felony murder cases, however, said the idea that harsh sentences are a deterrent does not take into account the mindset of somebody who commits a violent crime.

"Most of these acts are impulsive -- even the supposedly premeditated ones are impulsive and usually the product of impaired thinking," he said. "People don't reasonably weigh the cost-benefit analysis before a crime. They usually weigh desperation or some other impulse like anger."

Silva further stated that harsh sentences in felony murder cases and child abuse murder cases don't act as a deterrent because most Oklahomans don't understand the statute.

But Kunzweiler said harsh sentences aren't only doled out as a deterrent.

"Not in every crime do we have to be focused on deterrent, because the heinousness of the crime warrants severe punishment," he said. "This is the kind of person we don't want on our streets at all."