Tough Justice
California Lawyer

Tough Justice

Under the felony murder rule, unarmed accomplices can be imprisoned for life. Is this justice, or overkill?

September 2009


Photo Courtesy of Adam Reich

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Connie Keel is a short, round-faced woman with long, grayish-brown hair that spills over her shoulders. Half Cherokee by descent, she has a pleasant smile and a relaxed manner. In April, at age 50, she was released on parole from the California Institution for Women (CIW) in Corona after spending 29 years behind bars for murder.

At her 1981 trial, Keel was never accused of actually killing anyone with her own hands. However, under the state's felony murder rule—a doctrine that dates back to 1850—the jury convicted the first-time offender, then 22, of first-degree murder for participating as an aider and abettor in the robbery of a liquor store that ended up costing a man's life.

To this day, Keel maintains that she had no idea what her husband, Ricky Keel, and his cousin Jeffrey Taylor had in mind on the night of February 26, 1980, when, after a day of celebrating the settlement of a civil lawsuit involving her in-laws' trucking business, they drove to the Garden City Liquor Store in Campbell, just south of San Jose.

"I thought we were going to buy some cigarettes," she says, "and then head back to Ricky's parents' home, where my two kids were waiting. ... I was sitting between them in the front seat of Ricky's old station wagon when Jeffrey said he wanted to rob the store. I tried to talk them out of it," she claims. "But Ricky pulled out a gun, and with the gun in my face, he told me to shut up and keep my ass right there in that fucking car.

"I heard a bunch of shots from inside the store," she continues, then Ricky and Jeffrey jumped into the station wagon and the trio sped away. Two days later the three were arrested after police had circulated photos of Ricky and Jeffrey taken by the store's security system. The two men were ultimately sentenced to life in prison without possibility of parole; she got 25 years to life.

Keel is recalling all of this now from the shady backyard of a halfway house in Claremont. It's been five months since her release from prison. And as she tells her tale, her eyes start to well up. "I was very shocked by the jury's verdict," she says. "I was in the wrong place at the wrong time."

Meanwhile, sitting by her side is a bookish-looking, curly-haired young man whom Keel refers to as her hero. His name is Adam Reich, and he is now a third-year law student at the University of Southern California.

In October 2008 Reich represented Keel at a parole hearing at CIW under the aus-pices of USC's Post-Conviction Justice Project. The project helps prison inmates, particularly battered women, prepare for parole proceedings and also drafts writs related to parole denials.

By the time Reich was assigned to the case, Keel had already been denied parole five times. And to make matters even more difficult for Reich, Keel had an uneasy feeling about him when they first met. "I had not been represented by a man since my trial," is how she explains it. But, slowly, Reich won her trust.

Recalls Reich: "I emphasized [to the parole board] that this was a woman who had served more than enough time for what she had done, had fully rehabilitated herself, and had endured a level of sexual, physical, and emotional abuse that had to be recognized."

As to the alleged abuse, the board didn't just take Reich's word for it. After conducting its own investigation, it concluded that Keel had indeed suffered from a long history of mistreatment—at the hands of relatives as a child, and later by her husband, Ricky, who, after his conviction, admitted that he had physically and sexually abused her.

And so it probably shouldn't have surprised anyone that this time around the board found Keel suitable for release. But even then Reich's job was far from over, because there was always the chance—and a pretty good one, actually—that the governor would overturn the board's decision. In fact, Gov. Arnold Schwarzenegger was reported to have reversed the panel's release recommendations for lifers 70 percent of the time.

So, rather than just sit back and wait to see what the governor would do, Reich enlisted the help of a friend he calls a "computer genius" to create a website—freeconnie.com—to kick-start a letter-writing campaign on Keel's behalf. The case became something of an obsession for Reich, and there were days, he says, when he worked almost 22 hours straight on it. Of course, it's impossible to know how much any of this influenced Schwarzenegger. But last April the governor, without comment, let Connie Keel go.


For all the sympathetic press that Keel has since received, most observers agree that there's very little chance California will abolish, or even substantially amend, its felony murder rule anytime soon. Nonetheless, for those who question the wisdom of the rule—let alone its fairness—cases like Keel's provide fresh cause for concern.

At Loyola Law School in Los Angeles, former federal prosecutor Laurie Levenson is among those who look at the rule with a critical eye. "Generally in criminal law," says the professor, "punishment and culpability are based on a perpetrator's intent. But with felony murder, intent to kill doesn't matter. Intent gets unhooked from punishment and culpability. As long as you commit the felony and death results, intent to kill isn't needed. You're guilty of murder, even if the death is accidental."

And as Keel's case showed, this can apply to aiders and abettors just as easily as it can to shooters.

"The principal problem, in my opinion," says Michael Brennan, the director of USC's Post-Conviction Justice Project, who supervised Reich's work on the Keel case, "is that someone who is not involved in the felony, or only marginally involved, can end up getting convicted and sentenced the same as a major perpetrator."

Of course, none of this is new. Most legal scholars trace the felony murder rule to English common law. And though England and other common law countries such as India and Northern Ireland ultimately abandoned the rule, in the United States only a handful of states—including Hawaii, Kentucky, and Michigan—have discarded it (with only Michigan doing so through judicial action (People v. Aaron, 409 Mich. 672 (1980))).

In California, specifically, the felony murder rule dates back to the state's first criminal law compilation—the Crimes and Punishment Act of 1850—and the first edition of the state Penal Code, adopted in 1872.

California defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought (Cal. Penal Code § 187). Murder, in turn, is divided into first and second degrees. The penalty for first-degree murder with special circumstances is either life in prison without the possibility of parole, or death. The penalty for first-degree murder without special circumstances is 25 years to life. Under the state's felony murder rule, which is inscribed in Penal Code section 189, any homicide committed during the course of specified felonies—such as robbery, rape, and burglary—is treated as a first-degree murder. By virtue of a long string of state Supreme Court decisions, California also recognizes the offense of second-degree felony murder, punishable by sentences of 15 years to life, which applies to homicides committed during the course of other felonies not enumerated in the statute but deemed "inherently dangerous to human life."

On any number of occasions, judges have criticized the state's felony murder rule. And these criticisms have come not just from liberals like former Chief Justice Rose Bird but from conservatives as well, such as former Justice Janice Rogers Brown (now serving on the federal District of Columbia Circuit). In one opinion, Brown described the rule as "an artificial concept of strict criminal liability ..." (People v. Howard, 34 Cal. 4th 1129, 1140 (2005) (Brown, J., concurring and dissenting)).

In 1983 the state's highest court held in People v. Dillon (34 Cal. 3d 441) that the penalty for first-degree felony murder is subject to the prohibition against cruel and unusual punishment, which in turn paved the way for proportionality reviews to determine whether the facts presented in first-degree murder cases warranted sentence reductions to second degree. (Such reviews, most observers agree, are important, but, as occurred in Keel's case, they rarely result in leniency.)

The U.S. Supreme Court has also weighed in on the rule. In a 5–4 decision two decades ago, it upheld the death penalty for accomplices, but only if they intended to kill or were major participants in the underlying crime and acted with reckless indifference for life (Tison v. Arizona, 481 U.S. 137 (1987)). Similar criteria are set forth in California's special circumstance statute (Cal. Penal Code § 190.2).

This year, the state Supreme Court again took up the issue when it published a clarification to the "merger rule," the long-standing principle in felony murder cases that requires the underlying felony to be an independent crime and not merely an inherent part of the killing itself. Remanding to the court of appeal the second-degree felony murder conviction of a gang member in a car-to-car shooting, the state Supreme Court held that assaultive crimes such as shooting into an occupied vehicle merge into any resulting homicide. This renders the felony murder doctrine inapplicable unless the underlying crimes are committed with an intent collateral to the homicide (People v. Chun, 45 Cal. 4th 1172 (2009)).

For all this tinkering, though, the felony murder rule remains very much intact in California. "In the typical case, the felony murder rule is very valid," maintains Kent Scheidegger, legal director of the Criminal Justice Legal Foundation (CJLF), a Sacramento-based victims' rights organization. "In the usual felony murder, the perpetrator commits robbery or rape and kills the victim. Law professors worry about scenarios where someone drops a gun and it goes off and someone is killed. I'm aware of no such cases in the real world."

Far more representative, says Scheidegger, are cases like Hedgpeth v. Pulido (129 S. Ct. 530 (2008))—a U.S. Supreme Court case in which he and the CJLF filed an amicus brief. In that instance the high court reinstated the conviction of a man found guilty of shooting to death a Bay Area gas station cashier during a 1993 robbery. Scheidegger also points to People v. Story (45 Cal. 4th 1282 (2009)), in which the California Supreme Court reinstated the felony murder conviction of a man who raped and strangled a Mountain View woman. "These guys know they are doing something very wrong," Scheidegger insists, "and they ought to be held responsible for the consequences."


As for Connie Keel, one person who clearly doesn't think she got a raw deal when she was convicted of first-degree murder is the lawyer who prosecuted her. "All rules can be abused and misapplied, but not in this case," says Al Bender, who until 2004 served as a trial deputy with the Santa Clara County District Attorney's office. "The record showed that Connie Keel acted as a lookout during the robbery, and there was no evidence that her husband pulled a gun on her or that she was a battered woman. If I had believed that, I wouldn't have charged her."

Bender also doesn't believe the post-conviction admissions of Keel's husband, Ricky, that he had abused her. And to buttress his arguments, Bender refers to the 52-page unpublished opinion that the Court of Appeal for the First Appellate District issued in 1987 upholding all three convictions in the robbery (People v. Taylor, No. A001579 (Feb. 24, 1987)).

The opinion notes that Ricky Keel's uncle—who worked as a clerk at another liquor shop—had told a local investigator that on the day of the robbery, Ricky, Jeffrey, and Connie had visited his store. The uncle overheard one of them talking about committing a robbery. The uncle also said he saw a gun in Keel's purse. The opinion further notes that when she was arrested, Connie Keel had in her possession some "bait money" (marked dollar bills) that had been taken from Garden City Liquor Store the night of the robbery.

But both Reich and USC's Brennan scoff at these findings. For starters, they point out—as did the appeals court—that Ricky Keel's uncle had recanted his statements by the time of the trial. In addition, says Reich, it wasn't until 1992 that expert testimony on battered women's syndrome (now referred to as intimate partner battering) became formally admissible in California under Evidence Code section 1107.

If Keel had taken the stand at her trial, Brennan conjectures, "she may well have had a credible duress defense" because she lived in fear of her husband and was under his control until the time of her arrest. But Keel didn't take the stand, he says, in large part because she believed that the criminal justice system would not convict an innocent person. (Keel's trial lawyer, San Jose defense attorney Steven Manchester, declined to discuss the case.)

"Battered-women situations are the most heartbreaking of all," says Loyola's Levenson. "Technically, you're not guilty of felony murder unless you're guilty of the predicate felony. But, technically, you may not meet the duress-defense standards as to robbery, and then you're guilty of murder."

In addition to battered women, juvenile and very young adult defendants raise troubling questions in felony murder trials. Consider the case of Brandon Hein. In 1996 Hein, along with four other teenagers (two of whom were juveniles; Hein was 18), was convicted of first-degree felony murder for the stabbing death of another teen during a backyard brawl in Malibu. The predicate felonies were burglary and attempted robbery. The case attracted an unusual amount of attention, in part because the slain youth was the son of a Los Angeles police officer. Hein received a life sentence with no chance of parole (People v. Hein, 104 Cal. Rptr. 2d 85 (2001) (depublished)).

One of the unspoken purposes of the felony murder rule, contends Hein's current lawyer, William Genego, is to "bootstrap" manslaughter cases up to murder when the prosecutor can't prove premeditation or intent to kill.

In the Hein case specifically, Genego says that "the felony murder rule allowed the prosecution to convert what at worst began as an attempted theft [Hein and his buddies had driven to Malibu to obtain marijuana] into a murder case against everyone who was present, even though only one of the teens [not Hein] committed the stabbing."

Of course, bootstrapping is not a word that most prosecutors would use to describe what they do. "We don't create fictitious crimes," declares Riverside County District Attorney Rod Pacheco. "A crime is what it is."

When a law enforcement agency refers a felony murder case to his office, Pacheco explains, a staff meeting of police and senior prosecutors convenes to screen the case and scrutinize all the evidence. "We ask ourselves in all cases, including those involving aiders and abettors, the so-called lookout persons: Subjectively, do we believe that the defendant is guilty? If yes, then is the evidence sufficient to prove to a jury beyond a reasonable doubt that the defendant is guilty, and, objectively, do we believe we can prove our case? If the answer [again] is yes, we file. If it's no, we don't."

Pacheco is also unsympathetic to the claim that the sentences meted out to accomplices are overly harsh. "Under the law, an aider and abettor is a major participant in crime who plays a different role than a shooter, but an equal role, and is equally guilty," he says. "Without the lookout person, the robbery and shooting probably would not have happened."


Questions of fairness aside, does the felony murder rule effectively deter crime? At the University of Chicago Law School, professor Anup Malani, one of the country's leading researchers on the subject, analyzed FBI crime data from 1970 to 1998. He reports that roughly 20 percent of murders committed nationwide are classified as felony murders, although the data make no distinction between accomplices and direct killers. "I found the felony murder rule had a relatively small effect on criminal behavior, either in terms of deterring the overall felony rate, or the murder rate," he says. "So," he reasons, "if policymakers want to retain the rule, they should base it on theories of retribution or reverence for victims' lives, rather than crime control."

David Crump, a professor at the University of Houston Law Center, doesn't think it's quite that simple. On the one hand, he acknowledges that California's statute isn't a very good model when it comes to deterrence, because the rule is tied to crimes in the abstract rather than to the actual dangerousness of the particular acts with which a defendant is charged. One case frequently cited to underscore this point is People v. Stamp (2 Cal. App. 3d 203 (1969)). There the court of appeal upheld three defendants' first-degree murder convictions for the robbery of a business owner who died of a heart attack 15 to 20 minutes after they had fled the scene.

On the other hand, Crump notes that in Texas prosecutors who charge felony murder must show that the defendant committed or attempted "to commit an act clearly dangerous to human life that caused the death of an individual." (Tex. Penal Code ;§ 19.02(b)(3).) It's not the identity of the underlying felony or its abstract dangerousness, but the defendant's actual conduct in committing the felony that brings the rule into play. In this way, says Crump, the Texas law reconnects criminal liability to blameworthiness.

Besides Texas, a small number of other states—including Arkansas, Maine, and New York—offer additional protections not available in California. In such states affirmative defenses are made available to accomplices who did not commit or solicit homicidal acts, were unarmed, and reasonably believed no other participant was either armed or intended to engage in conduct likely to result in death.

At CJLF, director Scheidegger says that in principle he would not oppose a partial affirmative defense in California that would allow a person to prove he or she was just a lookout for a robbery and played no role in the killing. But he doubts it would have much impact. "When two or more people commit a robbery or rape and the victim is killed, you typically do not have any credible witnesses to testify as to who was a bit player," he says. "Under such circumstances, you have two choices: Convict both of murder, or convict neither. Convicting both is by far the better option."


While the felony murder debate roils on among academics, lawyers, and judges, Connie Keel is looking to the future without forgetting the past. She divorced her husband in 1987, has been reunited with her children, and is now a grandmother. But until she finds a job to support herself, she says, she will continue to live at the halfway house. (At this writing, she is considering work in upholstery and roofing—both of which she learned at CIW—as well as in-home care.)

Reflecting on her three-decade ordeal, Keel says she has no quarrel with applying the felony murder rule to shooters who kill during the course of a robbery. But she insists that it shouldn't be used against people like her—people who were simply in the wrong place at the wrong time.

Still, Keel considers herself lucky in some ways. "I know a lot of women in prison in the same position as me who weren't the perpetrator of the crime and weren't a willing participant in the crime, and they are still in prison and fighting for their release."

Keel says she doesn't want to forget those women, and she understands too that her case gives others hope. She smiles and laughs softly. "I'm grateful to be out," she says, and adds that she's "optimistic" about the future.

So, too, is Adam Reich. After graduating from law school, he hopes to land a job with a private firm that will allow him to continue his legal work on public-interest issues.

Bill Blum is an administrative law judge and freelance writer in Los Angeles

Reader Comments

Danilla3comet - September 29, 2009
Wow, what an ordeal. Of course I don't have the police report or video in front of me, but just reading the story alone and seeing Keel's face in that photo you can tell how grateful she is and how its very possibe her sentence was "overkill". It's hard to understand why our system can be too hard on some while ignore others. I'm glad she is doing good now, and I hope she undergoes another type of couseling for PTSD, which most people that are subjected to the prison system should do. I'm glad she's out. Let's hope she continues to teach others through her story. Also, I hope that Attorney remembers what he likes to do, where his heart is in the legal field, and continues to do his best.

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