GA - Suspicion over heat death of Cooper, 22 mo., Cobb County, June 2014, #11

[RainCheck]

No. Prior to the law change (and after it), you had to prove 2nd degree child cruelty. Which did not, and still does not, require malice. Under the old law, the 2nd degree child cruelty charge was the underlying felony for a felony murder charge -- meaning if you were guilty of 2nd degree child cruelty, you were autoguilty of felony murder and could be sentenced to life or the DP. Under the new law, if you're convicted of 2nd degree child cruelty, you're no longer autoguilty of felony murder. Instead, they've created a new crime under GA law for you (second degree murder) that carries a max penalty of 30 years. I'm absolutely certain. So we can agree to disagree.

I see! It's still much easier to get a conviction for 2nd degree murder though, right? Doesn't it give the DA a better chance of getting any punishment at all? Could 2nd degree murder even have been considered before this new law?

 

[MsMarple]

No they don't have to prove intent with the new charge. Same exact crime and a lighter sentence.

eta: for clarity, the new law provides that IF you are guilty of second degree child cruelty (which requires only criminal negligence) you are autoguilty of second degree murder (rather than felony murder). The proofs stay exactly the same.

That's the way I read it. IOW what changed was LWOP or DP to max. 30 years. The requirements for conviction are the same. But I could be wrong. Also, which law does this case fall under, pre- July 1 or post? So confusing.

Argh! I used to think I was kinda bright...

 

[sorrell skye]

Here's how the law was previously written:

(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

(d) A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.

http://law.justia.com/codes/georgia/2010/title-16/chapter-5/article-1/16-5-1

Here's how the new law is written:

(d) A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

(2) A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than thirty years.

http://www.legis.ga.gov/Legislation/20132014/144947.pdf

The amendment created a new subsection - murder in the second degree.

Malice wasn't required under the previous law, nor is it required under the amended law for these particular offenses.

There is a significant difference in the penalty under the new law.

 

[Karmady]

I see! It's still much easier to get a conviction for 2nd degree murder though, right? Doesn't it give the DA a better chance of getting any punishment at all? Could 2nd degree murder even have been considered before this new law?

Always easier to get second degree...yes. Which is why they downgraded. Keep in mind, though, there's a serious question about whether the new law applies to this defendant at all, imo

 

[MsMarple]

No. Prior to the law change (and after it), you had to prove 2nd degree child cruelty. Which did not, and still does not, require malice. Under the old law, the 2nd degree child cruelty charge was the underlying felony for a felony murder charge -- meaning if you were guilty of 2nd degree child cruelty, you were autoguilty of felony murder and could be sentenced to life or the DP. Under the new law, if you're convicted of 2nd degree child cruelty, you're no longer autoguilty of felony murder. Instead, they've created a new crime under GA law for you (second degree murder) that carries a max penalty of 30 years. I'm absolutely certain. So we can agree to disagree.

Ah - this clarifies it for me. Thank you so much!

 

[Karmady]

That's the way I read it. IOW what changed was LWOP or DP to max. 30 years. The requirements for conviction are the same. But I could be wrong. Also, which law does this case fall under, pre- July 1 or post? So confusing.

Argh! I used to think I was kinda bright...

bbm

I think that's a big question under GA law and why I think they will definitely upgrade if they can. jmo

 

[RainCheck]

That's the way I read it. IOW what changed was LWOP or DP to max. 30 years. The requirements for conviction are the same. But I could be wrong. Also, which law does this case fall under, pre- July 1 or post? So confusing.

Argh! I used to think I was kinda bright...

That doesn't make sense though! How could the requirements be the same for 1st degree murder with the possibility of the DP and 2nd degree murder with a max of 30 years? I'm really asking because I'm clearly very confused! You can still be charged with felony murder with the option for the DP so why would they charge someone with 2nd degree murder instead if their burden of proof is exactly the same?

 

[PigPong]

You are almost there. The felony murder charge was the same burden to prove as the new 2nd degree murder. They didn't need the option for 2nd degree murder because they had felony murder to apply with the 2nd degree cruelty.

Now, the new murder charge is 10-30 year sentence as opposed to felony murder which is a mandatory life sentence with a possibility of parole at 30 if you have no prior felony convictions.

 

[momrids6]

this may seem off topic but who else thinks that 20 minutes is not enough time for a toddler to have breakfast?

Depends on what he was eating I would think. We will find out when the full autopsy is released. I am still very interested in TOD.

 

[newone]

my meagre understanding is that the new law did not have a retroactive clause yet so does not apply to this case

 

[RainCheck]

Is it just because the jury finds 2nd degree murder with a punishment of 30 years max easier to dole out that than life or the DP? I always thought capital murder and 2nd degree murder were different crimes?

 

[cluciano63]

Well, what is the felony he was in commission of, if not murder?

 

[PigPong]

Always easier to get second degree...yes. Which is why they downgraded. Keep in mind, though, there's a serious question about whether the new law applies to this defendant at all, imo

We didn't have 2nd degree murder when they charged him. They downgraded the cruelty charge. Both were felonies, but less burden to prove 2nd. Same felony murder applied to either cruelty charge.

Now though...

 

[PigPong]

Well, what is the felony he was in commission of, if not murder?

2nd degree cruelty to children.

 

[newone]

Depends on what he was eating I would think. We will find out when the full autopsy is released. I am still very interested in TOD.

yes....I really tried to envision anyone of my kids scarfing back breakfast in 20 minutes and I couldn't -- not until they were teens LOL -- I don't think that 20 minutes in ChikfilA had anything to do with feeding poor baby at all.

 

[Karmady]

That doesn't make sense though! How could the requirements be the same for 1st degree murder with the possibility of the DP and 2nd degree murder with a max of 30 years? I'm really asking because I'm clearly very confused! You can still be charged with felony murder with the option for the DP so why would they charge someone with 2nd degree murder instead if their burden of proof is exactly the same?

The new law says that if you are guilty of 2nd degree child cruelty you are guilty of second degree murder. It will supplant the felony murder charge (although I wouldn't be surprised to see some lawyer arguing about it )

 

[cluciano63]

Is it just because the jury find 2nd degree murder with a punishment of 30 years max easy to dole out that than life or the DP? I always thought 1st degree murder and 2nd degree murder were different crimes?

2nd degree can be no premeditation, generally. When people are convicted of second degree, usually they had a choice on the ballot of first and second. And opt for second if they can't see premeditation, IMO

 

[PigPong]

Is it just because the jury find 2nd degree murder with a punishment of 30 years max easy to dole out that than life or the DP? I always thought 1st degree murder and 2nd degree murder were different crimes?

Dunno, this is brand spanking new for Georgia. Murder is murder the difference in degrees is usually the intent, or lack of intent, and/or premeditation.

 

[RainCheck]

You are almost there. The felony murder charge was the same burden to prove as the new 2nd degree murder. They didn't need the option for 2nd degree murder because they had felony murder to apply with the 2nd degree cruelty.

Now, the new murder charge is 10-30 year sentence as opposed to felony murder which is a mandatory life sentence with a possibility of parole at 30 if you have no prior felony convictions.

They still have the option to charge RH with felony murder with possibility of the DP though, right? Why did they decide to create a 2nd degree murder charge?

 

[newone]

Well, what is the felony he was in commission of, if not murder?

child abuse and if I had my way inappropriate communication (*advertiser censored*) with a person under 18