KC-area teens didn’t pull the trigger but are charged with murder. Is that justice?
By Luke Nozicka Updated September 22, 2019 05:00 AM
Johnson County District Attorney Stephen M. Howe discusses the felony murder rule and how his office uses it. The law gives prosecutors the power to charge people with murder who have committed felonies but never actually killed. By Tammy Ljungblad | Luke Nozicka Up Next Current Time 1:14/Duration 3:22 Johnson County District Attorney Stephen M. Howe discusses the felony murder rule and how his office uses it. The law gives prosecutors the power to charge people with murder who have committed felonies but never actually killed. By Tammy Ljungblad | Luke Nozicka
Jordan Denny called off a deal to sell $8 of Xanax before the fatal shooting of 17-year-old Rowan Padgett, court records say.
The 16-year-old girl has not been accused of touching the gun or knowing the alleged shooter had one. But she still faces life in prison under a Kansas law that allows prosecutors to charge her with murder.
She told police she watched Padgett get in the back seat of a car. Minutes later, he was thrown out and collapsed. Investigators later told her Padgett had been shot, court records show.
Denny was charged with felony murder, a doctrine that exists in 42 states in which someone can be charged if a death occurs during the commission of an inherently dangerous felony.
Cases like Denny’s have been controversial, with opinions split among legal experts, attorneys and activists about whether prosecutors may take the law too far.
Proponents of the rule argue it allows prosecutors to hold everyone in a crime responsible and deters criminals from committing violent felonies.
Critics say it may unjustly punish people for crimes they never committed.
“Even for someone that might support felony murder in some cases, they probably would not see this as an appropriate case for felony murder,” Guyora Binder, a law professor at the University at Buffalo regarded as a national expert on the issue, said of the charge against Denny, who is also accused of initially lying to detectives. Her attorney did not return calls seeking comment.
“Any time you have liability for someone who didn’t pull the trigger, people are concerned about that,” Binder said.
Johnson County District Attorney Steve Howe said he could not comment on the pending case against Denny or co-defendant Rolland Kobelo, 17, who is also charged with felony murder but not accused of firing any shots.
It’s not clear that Kobelo was present when the killing occurred.
But Howe said the felony murder rule is an important tool to convict people who put the public in danger and his office has ramped up its use.
In past years, Howe’s office filed few felony murder charges. But after a rash of deadly drug ripoffs, prosecutors filed cases against at least 10 people in the last 15 months — a “major increase,” Howe said.
The defendants ranged in age from 16 to 24 at the time of their alleged crimes.
“We’re talking about taking another person’s life,” Howe said. He opposes changing the felony murder rule, as two states have done in recent years.
Still, critics of felony murder argue someone like Denny, especially as a juvenile, should not be liable for another person’s crime.
She is among a series of people on both sides of the state line charged with felony murder in recent months. Many such cases come when a death occurs during a robbery, a burglary or a drug deal gone bad, local lawyers said.
In September, Cass County prosecutors charged five young adults with felony murder, robbery and armed criminal action in the fatal shooting of a 25-year-old man.
The group allegedly used a counterfeit $100 bill to buy marijuana. One of them, 19-year-old Crishon Marquese Willis of Grandview, shot and killed the alleged seller, police said.
The other four people in the car were charged with murder along with him.
They are: Makayla Marie Davis, 18, of Grandview; Shane M. Pierce, 20, of Kansas City; Alea Marie Campbell, 18, of Belton, and Andre Alonzo McKinney III, 18, of Kansas City.
They also face charges of first-degree robbery, forgery and two counts of armed criminal action.
Messages seeking comment from Cass County Prosecutor Ben Butler were not returned.
Missouri’s broad law
Missouri is one of the easiest states for prosecutors to obtain a felony murder conviction, said Binder, the law professor.
The state employs a broad rule allowing any felony to be used as an underlying offense to charge felony murder if someone dies in the process, legal experts said.
That differs from most states with felony murder statutes, which restrict felony murder to certain dangerous crimes, such as robbery, rape and arson.
Prosecutors don’t have to prove intent, as they do in other murder charges.
The poster child for Missouri’s broad law was James Colenburg in 1986. He had stolen a car and, seven months later, fatally struck a child who ran out in front of it.
He was convicted of felony murder based on the theft.
“It’s inherently unfair,” John Picerno, a Kansas City-based criminal defense attorney, said generally about the statute. “In the hands of the wrong charging authority, it can certainly be abused and misused.”
Self-defense is not a valid legal defense to felony murder, Picerno said. So when defending someone charged with the crime, aside from denial, he tries to make his client appear the least culpable of the participants, he said.
Picerno said prosecutors frequently tell jurors to hold people responsible for their actions. He said he agreed with the notion, saying he would like to see Missouri’s laws do just that.
“Why are we holding defendants responsible for the actions of others?” he asked.
St. Charles Prosecuting Attorney Tim Lohmar said if lawmakers changed the felony murder rule, there would still need to be a way for prosecutors to hold people responsible for indirectly causing the death of another person.
Lohmar, who is also president of the Missouri Association of Prosecuting Attorneys, said because the state’s statute is broad, prosecutors need to be cautious when applying it.
Even though the ability to foresee the possibility of death is not a requirement for felony murder in Missouri, prosecutors generally reserve the charge for violent crimes where the defendant should have known someone could die, he said.
“Had that person not committed that felony, a life wouldn’t be lost,” Lohmar said.
Debate over drug sales
Kansas uses a relatively long list of inherently dangerous felonies, including drug selling, that can be charged as felony murder.
A minority of states with the rule list any form of drug distribution as a predicate felony for felony murder, Binder said.
In Kansas, it means the sale of a small amount of drugs, even if the sale is never completed and the drug never changes hands, can be treated as murder.
It’s an issue Lawrence-based defense attorney Sarah Swain has raised with lawmakers.
Swain, who opposes the felony murder rule, said selling marijuana, which was added to the felony murder statute in 1998, has led to long prison terms for people who never killed anyone.
Swain, a Democrat who last year unsuccessfully ran for Kansas Attorney General, defended a man named Kyler Carriker, who was then 22, against a felony murder charge for allegedly arranging a $1,100 marijuana deal.
One of the would-be buyers, intending to commit a robbery, shot and killed a man, also injuring Carriker.
Carriker was acquitted at trial.
Swain said she tries to get jurors to consider whether her client should be held liable for murder and sentenced to life in prison — not whether he is technically guilty.
“When you really do bring out the issues of trying to hold a group of people responsible for the actions of one person, it puts jurors in a very uncomfortable situation,” said Swain, who is now defending one of the 10 people recently charged in Johnson County.
Still, some local prosecutors, including Howe, say people should know dealing drugs could end in robberies and gun battles.
It’s one of the leading causes of homicides in the Kansas City metro area, he said.
Change in other states
The felony murder rule has been criticized as unjust since it first appeared in American law in the early 1800s, legal experts said.
Other countries, including Canada and England, have scrapped felony murder altogether.
In the U.S., state legislators for decades have supported the rule despite having been “scorned as irrational” by academics, Binder wrote in one paper.
Nationally, about 20% of murder convictions across the country are felony murder, according to one estimate.
In the 1970s and 1980s, most states revised criminal laws but very few followed recommendations to abolish felony murder, legal experts said.
Now the U.S. may be undergoing a second movement to reform the use of felony murder.
Earlier this week, prosecutors in Lake County, Illinois, dropped felony murder charges against teenagers whose friend was killed during an alleged burglary. They were instead charged with lesser offenses.
In 2017, Massachusetts ended its felony murder statute through the state’s highest court. Last year, California restricted its rule through legislation so that a person can only be charged if they were a “major participant” in the felony. Prosecutors opposed the change.
Binder suggested Kansas and Missouri lawmakers consider the changes made in California law, which would remove the charge for someone like Denny.
There’s been little discussion of such reform in Missouri and Kansas, according to attorneys interviewed by The Star.
“We seem to be behind the curve on that,” Picerno said.
How and why we did this story
In recent months, The Star noticed what seemed to be an increase in felony murder cases filed in Johnson County. A reporter interviewed several prosecutors and defense attorneys about the felony murder rule in Kansas and Missouri to give readers a better idea about how and why people can be charged with murder who may have never intended to kill, and the criticisms of the practice.
A reporter examined court records of some recent cases, sought interviews with those involved, and spoke with experts on the law.