Archive for Tuesday, April 25, 2006

Lawyers want charges dropped

Murder, arson claims called unconstitutional

April 25, 2006


Attorneys for a man accused of setting a deadly apartment fire want a judge to drop the murder and arson charges against him, on the grounds that they're unconstitutional.

To win a conviction under the state's "felony murder" statute, prosecutors don't have to prove that Jason A. Rose intended to hurt anyone by setting an Oct. 7 fire at Boardwalk Apartments. They just have to prove he set the fire.

But Rose's court-appointed attorney, Tim Frieden, argued in court on Monday that that violates the 14th Amendment, which guarantees due process and "equal protection" under the laws.

"It violates the presumption of innocence," Frieden told District Court Judge Jack Murphy.

A detective testified earlier this year that Rose admitted setting a box full of paperwork on fire outside the building the night of the fire. Rose's attorneys say that's not enough to show that Rose meant to burn the building - that, at best, it shows he started a fire and it got out of control.

"He has no intent to commit any felony," Frieden said.

But Assistant Dist. Atty. Amy McGowan argued that Rose told police he wanted to see part of the building burn and that he changed his story several times about how he initially set a railing outside the building on fire.

McGowan said the concept behind the "felony murder" law was well established.

Jason Allen Rose sits in the court room Thursday at the second day of his preliminary hearing.

Jason Allen Rose sits in the court room Thursday at the second day of his preliminary hearing.

"Essentially, you don't get to call it an accident," she said.

Rose is charged with three counts of murder for the deaths of Kansas University student Nicole Bingham, electrician Jose Gonzalez and social worker Yolanda Riddle. He's also charged with aggravated arson and eight counts of aggravated battery for people who suffered burns and broken bones while running or jumping from the blocklong apartment building in the 500 block of Fireside Drive.

Judge Murphy said he would rule on the motion to dismiss at a later date. Rose is scheduled to stand trial Sept. 18 and remains in jail with bond set at $500,000.

Frieden also is asking for more evidence, including training records of the detectives who interviewed Rose.

Murphy on Monday gave Frieden 30 days to give notice of whether he plans to use a defense of a "mental disease or defect" at trial. Rose, a former foster child who had moved out on his own shortly before the fire, has conditions including attention-deficit disorder, a learning disability and post-traumatic stress disorder, according to testimony.


bmwjhawk 11 years, 10 months ago

What? A felony murder charge violates equal protection? Does this mean that no accused criminals can be tried, because the presumption of innocence is gone? Maybe I misunderstand the point, but I don't get it.

neopolss 11 years, 10 months ago

Under the law, they only need to prove that he set a fire, or in other words, if they can stick him with the arson, since people died, he is automatically guilty of murder. They don't even need to focus the case on murder, motive, or intent. In other words, he never really goes to trial for murder - he's being tried for arson, with the ruling that if guilty he is also guilty of murder. You cannot come back with a ruling of guilty for arson, innocent for murder, or vice versa.

punky 11 years, 10 months ago

this is some bull...the likelyhood of them actually dropping the charges is not likely at all...but as one of the fire victims that lost everythig, it pisses me off to no end reading that first thing in the morning. He, not only should be charged with arson (because he did indeed set the box on fire), but he should be charged with murder. he did, whether he meant to or not, murder 3 people.

betti81 11 years, 10 months ago

let me start by saying I do not condone what this person did. It was wrong and he should be punished for it. unfortunately the law itself is flawed. that is all the defense lawyer is trying to say.

roadrunner 11 years, 10 months ago

It amazes me at how much time is spent coming up with ways to "get around" the system/charges. Do our laws really have that many loop holes? Our society certainly has gone soft since the days of stonings and hangings. Can't someone just be guilty and sent to jail or do we really have to spend all of our tax dollars defending them?

Rationalanimal 11 years, 10 months ago

Mark Twain's Tom Sawyer said: even if Satan himself were on trial I reckon there'd be folks that'd think he was innocent.

How true, how true.

jafs 11 years, 10 months ago

The felony murder law is an odd one - if you are driving a car for people who are robbing a convenience store and one of them accidentally kills the clerk, you can be convicted of felony murder. It seems to me that this is a very different situation from someone who deliberately and intentionally kills another, and that our legal system should recognize this in some way.

Baille 11 years, 10 months ago

More stonings and hangings. That is what this country needs.

Baille 11 years, 10 months ago

"Under the law, they only need to prove that he set a fire..."

No. They need to prove a felony, arson. That is more than just setting a fire.

Ceallach 11 years, 10 months ago

"if you are driving a car for people who are robbing a convenience store and one of them accidentally kills the clerk," *** obviously they entered the store intentionally, took actions that killed the clerk, so how is that ever accidental? The fact that were prepared to kill if necessary to accomplish their crime makes them guilty of pre-meditation. IMHO, anyone stupid enough to drive armed criminals to an from their crime should be locked up for the same amount of time as the "active" members of the group. What did they think the gun, knife, etc., was being carried?

Therefore, if you set a fire in or around a building full of people (who are unaware of your fire," the fire gets out of control and people die --- you killed them. 1 2 3 a b c

Ceallach 11 years, 10 months ago

Had to hurry and botched the last part of the first paragraph -- WHY did they think the gun, knife, etc., was being carried? (Since I was in a hurry the typo should be considered an accident, right? Not just my failure to take time to proofread :)

Jamesaust 11 years, 10 months ago

Felony murder is certainly an odd duck but it is a long, long established duck. The idea that it is unconstitutional because it fails to "presume innocence" is absurd.

The law does presume innocence of the underlying felony, which prosecutors still have to prove - in this case, arson.

In felony murder, the law lists a limited number of crimes that are so inherently dangerous that there is an irrebutable presumption that ONCE it is proven that the accused INTENDED to commit the underlying (again) inherently dangerous act that the accused cannot reasonably claim to have not intended the consequences of this act.

One cannot be charged with felony murder if, for example, a charcoal fired grill managed to catch grass or leaves on fire and then spread to a house and then burned that house. This perhaps could be criminal negligence but that would not qualify for felony murder. However, if one piled the charcoal up against the house and set it on fire, proving arson should be easy and with that ... felony murder.

One does not stumble into felony murder nor does it fall onto one's head like the rain.

Baille 11 years, 10 months ago

"All they need to prove is that he intetionally started the fire and that the fire was not contained by reasonable measures."

Nope. Look at KSA 21-3718.

classclown 11 years, 10 months ago

Can someone explain to me why it is murder and not manslaughter? I thought that is what manslaughter was. Unintentional death resulting from your actions. i.e. start a fire but people die even though you didn't want or expect people to die.

Or does manslaughter only apply due to negligence?

classclown 11 years, 10 months ago

Secondly, was it intentional arson, or was he just being stupid and wanted to burn something only to have it go out of control.

Don't get me wrong... You won't see me marching for his freedom. Just curious about the finer points of the law these days.

monkeywrench1969 11 years, 10 months ago

That place was a fire trap. I used to deliver pizzas in college years ago and they were old, dry would back then. Anyone with common sense should know lighting a box on a wood railing is going to set the place on fire.

wonderhorse 11 years, 10 months ago

"You folks should remember that it is the obligation of a defence lawyer to provide the best possible legal arguments for the accused.

Whenver you seek to limit the ability of one attorney in one case to do that you are limiting your own rights as well.

Think about it and let the system do its job.



I often don't agree with your views, but I am with you on this one. Let the system do its job.

And (because I can't resist the jab) please notice smitty that no one got beat or shot by LPD.

kansasboy 11 years, 10 months ago

You mean to tell me that there is actually a "court oppointed" defense attorny that gives a sh*t. WOW!

So if I burn a box of papers in my house, my house burns down, does that mean that insurance will still pay me, because I was burning the paper and had no "intetions" of burning my house. Yeah right.

Baille 11 years, 10 months ago

"So if I burn a box of papers in my house, my house burns down, does that mean that insurance will still pay me, because I was burning the paper and had no "intetions" of burning my house. Yeah right."

That is a contract issue.

maveric 11 years, 10 months ago

Remember the VERY FIRST call to 911 was from Rose's apartment about the fire!!!!!!!!!!!!!!!!!!!!!!!!!

Ragingbear 11 years, 10 months ago

Under the laws of our country, there is a concept that says that even though you didn't intend something to happen, the fact that a certain outcome has a high probability will still make somebody at fault.

Rose claimed that he took that box outside, set it on fire, and then returned to watch tv with it still burning outside. This box was apparently set on the ground floor in the middle of the complex, when he lived on a higher level at the far end of the complex. If anyone sets a fire, a reasonable outcome would be that if unattended, it would get out of hand. Such is the case here even if his story is true. Leaving a burning box of stuff, unattended in the middle of the night ,on a wooden decking easily produce a foreseeable result of a fire.

At minimum, he was criminally negligent. That is still a feleony. And if people die as a result of whatever actions you do while performing a felony, then it is an automatic charge of 1st degree murder.

When all is said and done, this kid will probably plea out and either get life, or something like a 60 year sentence.

Baille 11 years, 10 months ago

Not exactly, Ragingbear. While involuntary manslaughter is a felony and contains a degree of negligence (recklessness), Kansas does not have a felony defined as criminal negligence.

Involuntary manslaughter can be found at KSA 21-3404, but the key is the definition of "reckless." This can be found at KSA 21-3201, and states in relevant part:

"Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. "

Now there are at least four elements to this definiton, but it is clearly a much higher bar than regular negligence, or doing something with a "high probablity" of a certain outcome. One's actions must be grossly negigent, willful, or wanton.

Shooting a gun into a crowded house would qualify. You know that someone is in all probability going to be hit and the outcome disastrous. Burning papers? I don't know. I would want to have more facts than that.

jafs 11 years, 10 months ago

I stand by my earlier comment - someone who is driving others to commit a robbery (clearly intended) in which a shooting occurs (not clearly intended) is not, in my opinion, on the same footing with someone who sets out to deliberately commit murder and does so themselves. There are degrees of responsibility - certainly they are guilty of something, but not first degree murder.

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