My new criminal defense practice in Springfield, IL is still in its infancy. I began renting an office on March 1 but didn’t sign up my first client until mid-April. This was really all right with me. During that six weeks I had time to rebuild my law library, refresh my criminal procedure and catch-up on changes to the law since I left the practice in 2013.

My first felony client was in custody at the local county jail. He began passing around my business card to fellow inmates. Then my phone really began ringing. Unlike in Chicago, inmates here can call me directly if they have “money on their phone.” This just means that they (someone on the outside, really) have prepaid for their phone calls.

Going to the Sangamon County jail is much, much easier than getting into that gigantic jail in Chicago. Here there is only one entrance. I sign in, they tell me on which floor the inmate I need to see is located; two big, heavy doors are unlocked; one and then the other, and then I take the elevator up—there are only three floors. And the jail is ten minutes from my home and two minutes from my office. So, I don’t mind at all going to this jail to talk to people who haven’t even hired me yet.

In Chicago, unless it was for a very violent case, I didn’t go to the jail to see an inmate until I was hired to represent them. I was way too busy to make free jail visits. Practicing here in Springfield is much, much easier. There is only one courthouse here compared to the ten in Cook County in which I used to appear. People come to my Springfield office to pay me; in Chicago I had to pick money up in the neighborhoods, and so my former life was spent running from courthouse to courthouse and then all over the south and west side neighborhoods trying to get paid. Thinking back…I have no idea how I did that for five years. I never stopped moving.

I have drifted here a little.

A recent caller from our jail told me he was in on a murder case. That perked my ears. I like murder cases. But I won’t take a murder case if I think the defendant actually did it. So, I went in to talk to this young man. He has been charged with felony murder under accomplice liability. And it is these two legal concepts that I want to explain.

Felony murder happens when during the commission of a felony a death is caused and there is a clear nexus between the felony and the death. Example: a man goes into a bank, pulls a gun on the teller and demands money; then the teller has a heart attack and dies. That is felony murder. The underlying felony is the robbery and the death is from the heart attack. At trial, the prosecution doesn’t have to prove the murder; only the underlying felony and the death itself. In other words, intent to kill doesn’t have to be proven. Another example: a would-be car thief is attempting to flee pursuing police officers, runs through a red light and crashes into another car, killing the driver—this is also felony murder; in this case, however, there are probably two underlying felonies: theft of the car and fleeing from police, and the prosecution would only have to prove one them and then the death from the car crash.

Accomplice liability has a lot of teeth. Under this legal theory anyone who aids in the planning or commission of a crime is as legally culpable as the primary offender. Most people have a general understanding of the commission part of this. If you’re surrounded by three men who demand you hand over your wallet, all three have robbed you. But accomplice liability stretches much farther. Let’s say two men are walking down the street and one of them decides to rob the convenient store on the corner but doesn’t have a pistol, so he says to his friend, “Let me have your pistol so I can go in that store and get some money.” In this example, the man who gives his friend his pistol but never goes in the store will have the same legal culpability as the man who commits the robbery. What this means is that they will both be charged for armed robbery with a firearm.

And felony murder can also come into play under accomplice liability. Example: three men are driving around. The one in the backseat says he wants to buy some drugs, but he doesn’t trust his dealer, so he asks the man riding in the front passenger seat for his gun just in case he needs it. Only the man in the backseat goes into the dealer’s home, but the drug deal goes bad and the dealer ends up getting shot and dies. The shooter runs out of the apartment with the drugs and his money, jumps in the car and says, “I shot him! I shot him!” and the three speed away. In this scenario, all three men are likely to be charged with armed robbery and felony murder.

But what if the guy in the backseat had the gun and the other two didn’t know he had it? And what if when he came out he didn’t tell the others that he had shot the dealer but acted like nothing had happened inside? And only later when he was arrested did he allege one of his friends had given him the gun and that the driver sped away from the scene of the crime so they wouldn’t get caught or seen.

Now you have a credibility battle.

The only evidence against the two men who waited in the car is the word of the guy who killed the dealer, and he clearly has some credibility issues. If the two men in the car indeed had no idea what had happened, their stories should corroborate each other, making their cases much stronger than that of the shooter.

But anything can happen at trial. Anything.

People lie in court all the time–even police officers. Some think trials are a search for the truth, but rarely does the entire truth of the matter surface during a trial. What you have are two competing stories: that of the prosecution and that of the defense. Typically, the side with the best story wins; and by best story I mean the one that is easiest to understand and believe; and is rooted in common sense.

So, in the hypothetical above, will the jury believe a killer who is snitching on two other people? Or will they believe the two who were out in the car the entire time?

The jury will want to know why the shooter is saying the other two men helped in the robbery and are thus also culpable for the felony murder.


Suppose the two outside are called to testify as prosecution witnesses at the trial of the shooter. They have really good testimony to offer, because they can put the shooter in the apartment around the time of the murder.

Isn’t retaliation a believable motive here? You testify against me and I’ll testify against you–even lie, because why not? I’ve nothing to lose. I’ve already been convicted for murder!

This job often gets complicated.