So strange that Law & Crime article questioning whether the Capitol rioters could be prosecuted for felony murder and it *never discusses* the most obvious predicate felony—burglary

https://t.co/cSFJzB5fwq via @lawcrimenews

As I will be teaching my first year criminal law students later this semester, felony murder is often a question of charging strategy for prosecutors. The defendant has often multiple felonies, some of which trigger felony murder and some of which don’t.
This article makes the classic mistake of analyzing only one possible underlying felony—sedition—and not the other, more mundane felonies, including burglary.
It’s the sort of error that loses students a lot of points on their final exam!
This basic error--misidentifying the relevant predicate felony--ends up affecting the other analysis in the article. For example, the author correctly points out that there are some other Qs that must be answered for felony murder to apply.
This analysis looks different if we are talking about burglary---which the Supreme Court defines not only as entering a building to commit a crime, but also remaining in the building.
That's going to make the "remoteness" inquiry pretty easy, not complicated as the article says.
To be fair to the article, it does mention one legal issue that could prevent prosecutors from obtaining a conviction for the death of Ashli Babbitt---the fact that she was killed by police, rather than her fellow rioters (and burglars).
But even here, the article's got problems.
Jurisdictions are actually split on whether a police officer killing one of the people committing a felony can result in a felony murder conviction for the other people who were committing that same felony.

Again, this is an issue that we teach in 1st year criminal law.
This article suggests that the fact that the police officer did the killing makes it impossible to bring a felony murder charge. But that's not true. It depends on the specific case law that's been developed in a jurisdiction.
The article should have talked about what federal court opinions say about this issue. And the mere fact that the article quotes a federal prosecutor (who speaks about the "rule" and not about cases) doesn't make me more confident. I imagine most AUSAs haven't handled a FM case.
The sloppy legal analysis in this article is compounded by the fact that the whole article was framed as trying to criticize people on Twitter who said felony murder did or should apply.
Maybe they were wrong, but this article certainly didn't make the case for it.
Also, I question the journalistic decision to write an article about why some people's comments about the law are wrong without *asking those people* to explain and/or defend what they've said. Interviewing some other folks doesn't seem like it really gets the job done.
Let me add that many of the @lawcrimenews stories that I've seen are just an aggregation of tweets.

I'm no journalism expert, but that doesn't strike me as a helpful way to inform readers.

Why not call the people who are tweeting about things for a more thoughtful quote?
At a minimum, if your publication is literally called "Law & Crime," I would hope that your articles are actually getting the law about crimes correct.

This one made a pretty basic application error--an error that could have easily been fixed with some slightly better reporting.

More from Legal

1/ On Jan 2 we introduced Proud Boy Billy Knutson to the world. Billy said he was going to DC to "literally go Antifa hunting."

Well, Proud Boy Billy Knutson stormed the U.S. capitol with his fellow terrorists and participated in a failed coup:
https://t.co/Ctb7vThYhs


2/ Terrorist Proud Boy Billy Knutson placing himself at the scene of the failed coup in DC to overthrow democracy:


3/ From terrorist Proud Boy Billy Knutson's Parler in his own words:

PS: We see Texas Charter Plane 5 Jenna Ryan made the big time at the failed U.S. coup in DC


4/ FAIR USE claim: shows context in tweets

Terrorist Proud Boy Billy Knutson's Parler video where you can hear him screaming, "Stand Back and Stand By Motherf*ckers!" while standing on the US capitol steps. Speaker says they'll be back on Inauguration Day.


5/ Terrorist Proud Boy Billy Knutson already lost his Instagram, Facebook, TikTok, & Twitter before heading to DC

However @Spotify & @YouTube continue to platform Billy Knutson, aka Playboy The Beast, a terrorist that participated in the U.S. failed
A detention hearing is about to start in federal court in Arkansas in the case of Richard Barnett, the man photographed sitting in Nancy Pelosi's office (see: https://t.co/GAAENhkxf0). He's been in custody since his arrest

Prosecutors alleged Barnett was carrying a stun gun. He's charged with entering a restricted area w/ a weapon, violent entry/disorderly conduct, and theft. There isn't anything on the docket indicating what the govt/Barnett will be seeking as far as detention v. release


We're still waiting for the Richard Barnett detention hearing to start in Arkansas. Meanwhile, follow @o_ema for updates on initial appearances in DC federal court today for a few of the Capitol insurrection arrestees -->


Richard Barnett's detention hearing is underway in Arkansas — Judge Erin Wiedemann will decide if Barnett should stay behind bars. The first witness is FBI special agent Jonathan Willett, who was involved in the Capitol riot investigation

FBI agent walks the judge through surveillance videos that the agent says show Barnett walking in and out of Nancy Pelosi's office, with a "walking stick Taser" on his hip, as well as the widely disseminated photos of Barnett sitting in Pelosi's chair with his feet up

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