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Lisl Auman sat handcuffed in the back of a squad car in late 1997 when a Denver police officer was killed by her accomplice in a burglary, yet she is serving life in prison for his murder. Auman’s sentence is a result of Colorado’s felony murder rule, a controversial law that holds accomplices liable if a death occurs during a felony, or in immediate flight of a felony. But Auman’s case is far from over. In an appeal closely watched by the national criminal defense bar, the Colorado Supreme Court is expected to rule this summer on whether Auman’s arrest precluded her liability for felony murder. Auman v. Colorado, No. 99CA0016. In a rare move, the court requested an additional briefing from defense counsel as to whether or not the jury was properly instructed on felony murder and immediate flight. Felony murder statutes have been a clashing point between defense counsel and prosecutors in states across the country, including Michigan, Kentucky and Hawaii. Despite a trend in U.S. state courts to restrict the statute, Colorado’s felony murder statute remains one of the toughest in the country. In the Auman case, some defense counsel assert that if the case is affirmed, it could stretch the limits of accomplice liability in felony murder and pave the way for increased prosecution. ‘Lot of attention’ “There’s a lot of attention on this case,” said Guss Guarino, executive director of the Colorado Criminal Defense Bar. “The question here is, what are the limits of accomplice liability?” Jack King, public affairs director of the National Association of Criminal Defense Lawyers, asserted that the Auman case is “the broadest interpretation [of the statute] that I’ve ever seen.” The NACDL has filed an amicus brief with the Colorado Supreme Court in Auman. The brief criticizes the statute for disregarding intention and unforeseeable results, and urges the reversal of Auman’s conviction. But prosecutors see it differently. “The idea that this is a major legal movement is just illusory,” said Joshua Marquis, Clatsop County, Ore., district attorney and a member of the board of directors of the National District Attorneys Association. “You are guilty for the logical consequences of your actions.” Auman and Mattheus Jaehnig, a man she had met the previous night, were fleeing from an alleged burglary in November 1997 when Jaehnig shot and killed police officer Bruce VanderJagt, and then shot himself. Auman was already in police custody at the time of the shooting, according to court documents. On Nov. 17, 1998, a jury found Auman guilty of felony murder, second-degree burglary, menacing and conspiracy to commit first-degree burglary in the shooting death of an officer. The intermediate Colorado Court of Appeals upheld the jury verdict in September 2002. The case sheds light on mandatory life sentencing in first-degree felony murder convictions in Colorado. Auman’s attorney, Kathleen Lord, Denver’s chief appellate deputy, said felony murder should be a second-degree offense, which would limit the sentence to eight to 48 years. Most states have first- and second-degree felony murder. “I think if I prevail in this case that it will just reaffirm what felony murder statutes are, and that there are limits to them,” Lord said. Marquis concedes that Auman’s conviction is severe, but that second-degree murder is too modest. “If you change it to second degree, you’d get the lower end of it,” he said. “Is six or seven years with parole an appropriate sentence? No, not at all.” Denver District Attorney Bill Ritter, the head prosecutor in the case, also disagrees that the law needs alteration. “A felony has been committed and a murder resulted, and there is a place in America for this law . . . .I believe I was in my ethical bounds to prosecute this case,” Ritter said. But Gerald H. Goldstein of San Antonio’s Goldstein, Goldstein & Hilley�a past president of the NACDL�countered that “[felony murder statutes] are laws that have been extended way beyond their usefulness. England did away with this arcane doctrine years ago, and it’s stupefying that we haven’t.” Other states have varying accomplice liability in murder cases. The Michigan Supreme Court ruled that an accomplice must have “intent to kill” to be convicted for murder. People v. Aaron, 409 Mich. 672 (1980). In Kentucky, the culpability of an accomplice depends on “the degree of wantonness or recklessness” in the commission of the felony resulting in a death. Hawaii abolished felony murder in 1972. What’s more, the U.S. Supreme Court effectively abolished the death penalty in felony murder cases in Enmund v. Florida, 458 U.S. 782 (1982).

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