Robinson: Auman case exemplifies felony murder quandary

Published May 1, 2002 at midnight

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Impersonal responsibility.

That's what the hoary felony murder rule might appear to impose in the Lisl Auman case, heard by the Colorado Court of Appeals on Tuesday.

Felony murder originated in English common law about 500 years ago. It makes anyone involved in a felony culpable for deaths that occur during the crime or in "immediate flight" from the scene -- even if it was not intended that anyone would be hurt or killed.

In Colorado, felony murder is first-degree murder, indistinguishable at sentencing from intentional cold-blooded killings or murders-for-hire: Life without parole is the mandatory minimum sentence.

The idea of felony murder is to discourage felonies such as armed robbery, which often result in violence.

That philosophy in a nutshell? Commit such a crime, and if anyone is killed, even by accident, be prepared to be punished equally with whomever pulled the trigger.

Critics claim that the felony murder rule is outmoded, a relic of a less enlightened time when committing a felony in and of itself could result in hanging. Parliament abolished felony murder in 1957 upon public outcry after a controversial execution.

Supporters of Lisl Auman would have her be the poster girl for reform here in the United States, advocating on a "Free Lisl" Web site and in court documents for a reversal of her conviction in the death of Denver police officer Bruce VanderJagt, who was shot with an assault rifle by Auman's companion, Matthew Jaehnig, outside an apartment house in 1997.

The Auman case represents the outer limits of felony murder. While Auman was admittedly involved in the burglary of a former boyfriend's home, and was a participant in an extended police chase, it was only after she had been arrested, handcuffed and placed in the back of a squad car that the fatal shots were fired by her erstwhile accomplice.

Auman's lawyers argued that her involvement in the burglary and subsequent police chase had terminated with her arrest, and noted that never before in Colorado has an individual been found guilty of felony murder while in custody.

The three-judge panel who heard arguments Tuesday will not have the luxury of redeciding the case factually. Rather, as with all appellate courts, the judges simply have to accept any factual determinations made by jurors on contested facts.

That would include significant testimony seemingly overlooked by Auman's many advocates, such as a confession in which she admitted holding the steering wheel during the police pursuit so that Jaehnig could fire at police, her remaining with Jaehnig during the chase when she might have been able to get out of the car, and a disinclination following her arrest to help authorities apprehend others involved.

The court also has the responsibility of following prior precedent, which includes cases upholding felony murder convictions under the "immediate flight" theory in situations where a death occurred, even hours after and miles away from the underlying crime.

The court might choose to resolve the case on other points without grappling with the gnarly felony murder rule, but one thing about the case is inescapable.

Since the objective of felony murder is to deter potentially violent crimes, any ruling that an arrest does not cut off criminal responsibility for the conduct of an unapprehended accomplice would seem counterproductive.

That would be deterring surrender more than the crime.

Scott Robinson is a Denver trial lawyer specializing in personal injury and criminal defense.

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