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Saturday, Nov 17 2012 11:00 PM

When murder isn't literally murder

By The Bakersfield Californian

Californians earlier this month approved reforms for the state's three-strikes law, one of the nation's harshest sentencing laws, but stopped short of repealing the death penalty. It was a reminder that many in this blue state, while opposed to unnecessarily severe sentences, still solemnly support an important underlying principle of justice: an eye for an eye.

Somewhere in between those positions lies the case of Katila Nash, the Bakersfield teen who was sentenced last week to 25 years to life in prison for the murder of a woman she didn't kill. Nash was prosecuted under the felony murder rule, whereby an individual involved in a felony can be held liable for deaths that occur during the commission of a crime. Nash was charged and convicted of first-degree murder because she was deemed to have been burglarizing the home where the murder took place. The 18-year-old man Nash was with at the time violently struck Dorothy Session, who later died of her injuries. Even though Nash didn't lay a finger on the elderly victim, she was convicted of the exact same crime as her co-defendant who actually committed the murder.

Let's be clear here. Session's murder was horrifying, tragic and senseless. Session was a defenseless 81-year-old widow attacked in her own home. She was a gentle and kind church-goer who baked cookies for children and other widows. There is no excuse for this crime; the young man who committed this murder was well-deserving of his sentence, life without the possibility of parole.

Nash is no angel, either. Though she was the victim of abuse as a child, and has an IQ so low she is considered borderline mentally disabled, she has also been described as violent and manipulative to the point that a judge agreed her previous time spent in group homes and juvenile hall had done no good. He refused to allow the case against her to be heard in juvenile court, even though she was 15 when the crime was committed.

But despite her troubled past, there's no evidence that Nash was violent toward Session. Why should she be convicted of murder and locked away for 25 years?

"She probably didn't intend to kill Dorothy Session," said prosecutor David Wilson two days after the sentencing. "But she did intend to commit a burglary and burglaries are dangerous."

And that's all that matters under the felony murder rule.

It doesn't matter that this was a burglary where nothing was stolen, no weapons were present, no evidence of forcible entry into the home was found and there was, by the prosecutor's own admission, no glaring intent to harm or kill on Nash's part. The felony murder rule boils down to one thing: When you engage in dangerous activity, you're liable for the consequences that can result. This doctrine makes sense, for example, if a bank robber accidentally fires a gun during the robbery and kills someone. He should be held responsible for the death his reckless actions caused, whether he meant to kill or not. But the rule has also been used to convict a man who lent his car to a friend who then committed a crime that resulted in someone's death.

The felony murder rule is a black-and-white doctrine that is liberally applied to crimes of varying shades of gray. Considering the circumstances of the case, her age and her mental capacities, Nash's punishment doesn't fit a crime that, based on her specific participation, is some distance away on the spectrum of liability.

The day after Nash's sentencing, a man in Buffalo, N.Y., received the same 25-years-to-life sentence as Nash. His crime? He bound his 10-year-old stepson's hands, stuffed a sock in his mouth and covered it with duct tape, and beat him so hard with a rolling pin that it crushed the boy's skull, killing him. The district attorney called it one "one of the worst cases" he'd seen in his 24 years as a prosecutor. And yet his punishment is identical to that of a foolish girl who assumed she was involving herself in a burglary. The Buffalo case took place in another state and involved different charges and different circumstances, but it shows how legal rules that inflate the definition of murder can result in uneven applications of justice.

Wilson, who prosecuted Nash, said he simply applied the law the Legislature enacted. That's his job. And it's nothing new. The felony murder rule, like the three-strikes law, exists is all but a few states and hundreds of people nationwide are prosecuted under some version of it each year.

But as California continues to grapple with overcrowded and costly prisons, cases like Nash's shouldn't just come and go without notice. Nash was effectively convicted of a crime someone else committed. How will our state prison system fare if we continue to impose harsh sentences on two people or more for every one person who, solely, commits a crime? Nash's case should remind voters and legislators that our legal system is still far from perfect.

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