Friday, March 19, 1999
Murder charge follows new law
BY DAN HORN
The Cincinnati Enquirer
Prosecutors say they know James L. Clark didn't mean to kill his father. A year ago, they say, they would have called the shooting death involuntary manslaughter and Mr. Clark would have faced no more than 10 years in prison. Today they call it murder.
The reason is a new state law that has changed the way murder is defined in Ohio, making it easier for prosecutors to seek the most serious charges and the most severe prison sentences.
Prosecutors have praised the law as a valuable weapon against violent crime, while defense attorneys have labeled it as poorly written, unconstitutional and “just plain stupid.”
Its first major test in Hamilton County is expected today when Mr. Clark's attorney asks Common Pleas Judge Thomas Crush to throw out the charges against his client.
“It's not a good law,” said the attorney, Kenneth Lawson. “Under this, you'd be doing the same amount of time in prison as someone who intentionally killed somebody.”
While it may seem a legal technicality, the distinction between an intentional and unintentional homicide is recognized in many states.
The result of the crimes may be the same — a dead victim — but the seriousness of the offense is based in large part on the intent of the defen dant.
Most states, including Ohio, have a sliding scale of offenses that runs from negligent homicide to involuntary manslaughter to aggravated murder. The more serious the offense, the longer the potential prison sentence.
Intent argued
The theory behind the sentencing structure is that someone who plots a murder deserves a stiffer punishment than someone who unintentionally causes a death in a fistfight.
Mr. Lawson and other defense attorneys argue that the new law eliminates that distinction.
“They're trying to take intent out of criminal law,” said Louis Strigari, Hamilton County's public defender. “What you intended to do doesn't make a bit of difference anymore.”
He said the new law does this by allowing prosecutors to seek murder charges when a defendant causes a death while in the act of committing a serious felony.
Under the old law, murder charges could be used only if the defendant “purposely caused the death of another.”
The law means that defendants such as Mr. Clark are now facing 15 years to life in prison for murder, instead of three to 10 years for involuntary manslaughter.
Mr. Lawson said that's far too much time for someone such as Mr. Clark, who is accused of shooting his father during a Jan. 19 street fight in Over-the-Rhine. Mr. Clark's father, James Clark Sr., died five days later.
Although prosecutors acknowledge that Mr. Clark was not aiming at his father, they say he is guilty of murder under the new law because he committed a violent felony the moment he fired the gun.
"Another tool'
Prosecutor Mike Allen said the murder charge is appropriate because Mr. Clark intentionally used violent force, even if he didn't intend to use it against his father.
“I can understand why the defense would be unhappy with this law,” Mr. Allen said. “It just gives us another tool in our arsenal.
“And we're going to take advantage of it.”
Like many changes in state law, this one was spawned by outrage over a single criminal case. A Cleveland woman was shot and killed during a robbery by a defendant who claimed his gun went off accidentally.
The jury convicted him of involuntary manslaughter instead of murder.
One of the prosecutors who helped draft the new law said the intent was to limit the use of the manslaughter charge without eliminating it.
“It took the major offenses and made them murder,” said John Mur phy, executive director of the Ohio Prosecuting Attorney's Association. “Involuntary manslaughter is still there for all other felonies.”
While that may seem true on paper, Mr. Lawson said prosecutors can now manipulate almost any homicide charge into a murder case. And that, he argues, is unconstitutional.
What's more, he said, the law is so poorly written that it would hopelessly confuse most judges or juries. The reason, he said, is a clause that states it can only be used in cases that are not covered by the manslaughter statutes.
Having it both ways
Mr. Lawson contends there are no such cases. He said the problem is that the laws are just too similar:
• According to the manslaughter statutes, they apply to anyone who causes the death of another while committing “a felony.”
• According to the murder law, it applies to anyone who causes the death of another while committing “a felony of the first or second degree.”
Mr. Lawson said prosecutors can't have it both ways. He said the manslaughter statutes still cover everything the new murder law was intended to cover.
“What needs to happen,” he said, “is the legislature needs to rewrite the law.”
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