« "The High Costs of Low Risk: The Crisis of America’s Aging Prison Population" | Main | Early data from Colorado suggest teenage use of marijuana is down since legalization »

August 9, 2014

"May the government try John Hinckley for James Brady’s murder?"

The question in the title of this post is the headline of this astute analysis by Eugene Volokh concerning the legal question that emerged in the wake of James Brady's death being rules a homicide.  Here is how it begins:

The death of James Brady, President Ronald Reagan’s press secretary, at age 73 earlier this week has been ruled a homicide by a medical examiner. Brady was injured during an attempt on Reagan’s life in 1981. Let’s assume that the government can prove beyond a reasonable doubt that, but for the shooting, Brady would have lived longer (pretty much the legal test for causation in this sort of situation). Could the shooter, John Hinckley Jr., be tried for murdering Brady, even though he has already been tried for attempting to kill Brady, and found not guilty by reason of insanity?

The answer is no, likely for two different reasons.

August 9, 2014 at 08:35 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "May the government try John Hinckley for James Brady’s murder?":


How about the answer is no because it is farcical to suggest that someone can be guilty of murder for an incident that happened decades before. Under that logic my mother should be in prison for killing me because one day I will die.

The idea that Brady died of homicide is ludicrous to begin with.

Posted by: Daniel | Aug 9, 2014 1:36:18 PM

The first comment takes a logical bit of disbelief (I took think it too late in the day on the facts here) too far -- the mother there is not guilty of criminally killing you. And, since she is the very reason you came into the world, how is your birth a reason for shortening it? Anyway, obviously, it isn't an act of criminal homicide to give birth (one would have to find some creative exception).

But, it need not be "farcical." If a person was shot and lingered in a coma for ten years, and then died, do you think the shooter isn't guilty of murder? OTOH, if a person was shot, disabled, and died decades in the future, it is rather tangential to the death. One can think of various thought experiments there. But, this doesn't mean we should toss the baby out with the bathwater.

Posted by: Joe | Aug 9, 2014 6:05:59 PM

"the mother there is not guilty of criminally killing you"

I have no memory of coming into this world on my own free choice. As far as I know about how procreation works it's the mommy and daddy that make the choice, not the child. So since mommy and daddy made the choice to sentence a child to death, they should bear the legal consequences for the murder. BTW, I'm not saying I agree with this but rather to point out the absurdity of saying there are no limits anywhere to murder prosecutions.

"If a person was shot and lingered in a coma for ten years, and then died, do you think the shooter isn't guilty of murder?"

Yes, I think they are entirely innocent of murder. I recognize that there is an exercise in line-drawing here but there is a reason that statute of limitations or statutes of repose exist at the conceptual level. We can have a debate as to when they should kick in...six months, one year, five years, etc. but for me ten years is clearly past that limit.

Posted by: Daniel | Aug 9, 2014 7:37:17 PM

I will wait to see if the indictment and prosecution go forward before I comment further. If it does, God help us all.

I would also like to see a copy printed of the death certificate as to "cause of death" as I do not trust the media. I am sure that the ME's decision can be argued for years.

Posted by: albeed | Aug 9, 2014 9:35:27 PM

From AP: "His family said he died Monday at age 73 from a series of health issues.

Nancy Bull, district administrator for the Virginia medical examiner's office, which made the ruling, declined to disclose the results of the autopsy and referred inquiries to District police."

Medical examiner will not release the report.

Basic law school question. Was the intervening cause of death dependent or independent of the shooting decades ago? If dependent, was it reasonably foreseeable? Without the report, these fact and jury questions cannot be answered yet.

Posted by: Supremacy Claus | Aug 10, 2014 1:15:39 AM

My reaction is overly simplistic but because I was intrigued by the posed question long enough to read with curiosity - here it goes:

He was tried, and found not guilty by reason of insanity for his part in this horrific crime. Double jeopardy attaches and the prosecutors chose to charge him with attempted murder, rather than wait until such time as the victim died.

It was a prosecutorial decision, not unlike charging a lesser crime, or agreeing to a plea bargain.

Just a lay[wo]man's view ...

Posted by: Britton Bell | Aug 10, 2014 1:58:16 AM

Probably not ; the mental state AT THE TIME OF SHOOTING says NO.

Posted by: Docile Jim Brady in Columbus, Ohio | Aug 10, 2014 3:31:06 AM

Daniel, it is not understood to be a CRIMINAL act to bring someone into the would, even if the person has some sort of disability that causes discomfort.

OTOH, it is illegal to shoot people in a range of cases. You are being overly cute here and what annoys me is that you probably know it. Your concern for line drawing is more sensible, though there isn't a statute of limitations for murder. That is the bottom line.

Also, the difference in this case is that over a span of decades a person in his condition can die in any number of ways. He is old enough to be the average age of a person dying, for example. OTOH, if a person is shot and put in a coma, there very well can be a clear direct connection between the death, even machines or whatnot causes the person to linger. The fact that a complication directly a result of the bullet came in two, five or ten years is a much more arbitrary line that in the case of James Brady who was disabled but lived a fairly normal life for decades after the shooting.

The line drawing of one v ten again is quite separate than the logic fail example regarding the parents. Ridicule works better when the point isn't missed.

Posted by: Joe | Aug 10, 2014 10:34:41 AM

[edited and updated]

Daniel, it is not understood to be a CRIMINAL act to bring someone into the would, even if the person has some sort of disability that causes discomfort. OTOH, it is illegal to shoot people in a range of cases. The argument is that criminal act led eventually to the person's death. You are being overly cute here and what annoys me is that you probably know it.

Your concern for line drawing is more sensible. Also, reading Prof. Volokh's article, it very well works in Hinckley's favor here. Traditionally, there was a "year and a day rule" though as a matter of policy, it might with current means of extending life, be somewhat out of date. Even so, this isn't a good example, since even if he is disabled, after so many decades (contra my coma example) the connection between the shooting and his eventual death is rather tangential. Less tangential connections failed:


EV notes double jeopardy need not attach because Hinckley was not charged with MURDER the first time around (for obvious reasons), but the jury's finding of temporary insanity does apply even if the act eventually led to his death. So, the matter seems somewhat moot.

Posted by: Joe | Aug 10, 2014 10:46:54 AM

"Daniel, it is not understood to be a CRIMINAL act to bring someone into the would,"

Joe, I'm not trying to be cute. I'm trying to make an important point. The fact that giving birth is not understood to be a criminal act is based upon a cultural understanding, not a logical one. There is nothing in abstract logic that prevents such a prosecution. However, no prosecutor would bring such a case because he'd get laughed out of court.

That's the point. The point is that logic cannot create a statute of limitations. So we are left with an understanding based upon cultural experience--it is an intuitive judgement, not a rational one. And one one starts from that perspective--that statues of limitations or statues of repose are line drawing exercises that define and shape cultural intuitions one begins to realize just how blatantly ridiculous not only was the medical examiner's opinion but the notion that any prosecution should be allowed based upon it.

Posted by: Daniel | Aug 10, 2014 11:04:48 PM

Interestingly, the common law rule was that if the victim of a shooting, stabbing or beating lived more than a year and day after the date of the incident, then the defendant could not be prosecuted for homicide. I spent time in prison at an FCI in Maryland with a defendant from Virginia, who had an explosive temper that had gotten him into trouble many times. He had body slammed a man onto concrete during an assault. Although it took him about 14 months to die from his injuries, he never left the hospital. Because of the rule referenced above, he could only be prosecuted for aggravated assault. The year and a day rule seems to be a common sense limit on homicide prosecutions, but it may be complicated by modern medical technology.

Posted by: Jim Gormley | Aug 11, 2014 12:01:35 AM

The answer is no: double jeopardy and collateral estoppel consequences of Govt's failure to prove Hinckley sane beyond a reasonable doubt.

Posted by: Da Man | Aug 11, 2014 11:56:52 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB