Controversial felony murder rule under microscope after Lake County shooting

Illinois has a lengthy and controversial history with its rule that allows prosecutors to charge accomplices in certain felonies with the murder of anyone who dies during the commission of those crimes.

Lake County State's Attorney Michael Nerheim's decision to levy murder charges against five teenage accomplices of a 14-year-old boy who was shot to death by a homeowner while allegedly trying to break into the man's car is only the latest chapter, legal experts said.

Almost all states have a felony murder rule. About half of those, Illinois included, allow co-conspirators to be charged with the deaths of their accomplices at the hands of someone else. The rule is rooted in medieval law, with its current incarnation dating back to 18th century English criminal law.

“With accomplice liability, we often get the situation where a co-felon is held liable for an unintended killing by one of their partners,” said Guyora Binder, a law professor at the State University of New York at Buffalo and author of a book on the history and application of felony murder rules in the United States. “But many states have exceptions to co-felons being charged with the death of their partner by another party like police or a victim of the crime or even a bystander.”

The Old Mill Creek resident who shot the 14-year-old in his driveway early Tuesday morning is not charged, with prosecutors saying he feared for his life. He has not responded to requests for comment.

Those charged with murder include four cousins and a friend of the 14-year-old. All are from Chicago and are between ages 16 and 18.

Authorities said the teens were confronted by the 75-year-old owner of the car they were breaking into at 1:15 a.m. The homeowner told investigators that when he shouted at the teens, one approached him with something in his hand, so the man opened fire, striking the boy in the head. A knife was found at the scene of the shooting. Authorities said the teens then fled in an SUV stolen days earlier in Wilmette, stopping in Gurnee where one 17-year-old boy and the mortally wounded 14-year-old got out to seek medical help from police.

The SUV then sped away with the other four teens leading police on a chase from Gurnee to Chicago before the SUV ran out of gas and they were captured, authorities said.

Nerheim said the teens are culpable because they armed themselves with the knife, drove the stolen car to Lake County “to commit several forcible felonies, including vehicular burglary and residential burglary,” and “collectively ignored” the 75-year-old's demands that they leave.

“These offenders were solely responsible for placing the now-deceased 14-year-old offender in danger. They are ultimately responsible for his death. Had they not made the decisions they did make early Tuesday morning, this 14-year-old would still be alive today,” Nerheim said Thursday in a statement.

In Illinois, the felony murder rule applies to 14 specific “forcible felonies” like murder, robbery, sexual assault, kidnapping and even burglary and treason, but also allows prosecutorial discretion to charge someone in cases involving “the use or threat of physical force or violence against any individual.”

Critics of felony murder argue it unduly punishes someone who didn't actually commit the deadly act and requires no intent to kill to be applied. Supporters argue it prioritizes life by establishing severe consequences for criminal actions that can end with someone's death.

“The rule is there to discourage people from committing crime,” said Woodstock-based defense attorney Hank Sugden. “The moral of the story is don't commit a serious crime.”

One of Illinois' most famous felony murder cases involved the shooting death of a Joliet police officer by another officer in 1970. Three men burglarized a warehouse late one April night but fled when police arrived. One of the burglars was immediately captured, but two remained on the lam. During the search for the two burglars, one of the officers mistook another officer crouched near some bushes for one of the burglars and opened fire when his commands to drop a weapon were not heeded. The burglars were caught a few hours later. The Illinois Supreme Court upheld the murder conviction against the two burglars, saying their commission of the burglary ultimately led to the officer's death.

Binder said there is ongoing debate in the legal community about the inclusion of burglary in felony murder rules because of cases like that.

“Statistically, burglary is not a very dangerous crime,” he said. “When burglars set out to steal, they're looking for places where no one is going to be.”

Binder said the burglary inclusion allows prosecutors to “sweep” any accomplices to the burglary, even though they planned a crime where in most instances no one would be present.

Legal experts believe the suspects' ages and the fact that it was an accomplice who was killed will make convicting the five of murder tough.

“It's going to be a difficult case to convict on for murder because it's such a technicality,” said Ernie DiBenedetto, a criminal defense attorney and former prosecutor who has tried and fought felony murder cases. “It doesn't help them that it looks like they were all up to no good, but their age is going to be heavily factored and the young man who was killed also appears to be the aggressor.”

The murder charges against the five teens is a starting point for prosecutors, Sugden said.

“Prosecutors always start at the top and they normally charge heavy to begin with and then bring them down,” he said. “I would be surprised if any of them go away for murder.”

Nerheim, in his statement, said he will “continue to evaluate this case and work towards a resolution that is fair to all parties involved, while also fulfilling my obligation to keep our community safe. In doing so, I will consider the facts, circumstances, any mitigating factors, and the ages of the offenders.”

The U.S. is one of the last “major, modern countries” to still enforce felony murder rules, Binder said. England, Wales and Northern Ireland abandoned the felony murder rule years ago. It was ruled unconstitutional in Canada. And some parts of Australia have abolished it, as well.

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Upper from left, Kendrick Cooper, Diamond Davis, Stacey Davis and lower from left, Steven Davis and Curtis Dawson are charged in the Aug. 13, 2019 shooting where their 14-year-old accomplice was shot and killed by a homeowner as authorities say the six were attempting to steal the homeowner's car near Old Mill Creek in Lake County.
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