Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense Podcast. My name is Jacqui Ford. And today we’re going to talk about defending murder charges. So, if you’re in Oklahoma City, or the Oklahoma state area, and you’ve been charged with murder you’ve big, big problems on your hands. Most likely, if you’re listening to this podcast you may have a friend or family member who’s been charged with some version of murder in the state of Oklahoma, and you need to know what their rights are and how we can move forward in defending them.

I’ve got good news. You’re listening to someone who happens to know a little bit about this. There are all kinds of different murders that we all think about – levels of murder. But, in Oklahoma, we really only have two: that’s murder in the first degree and murder in the second degree. There are lots of other homicide cases, and we’ll save those for another podcast, for another day.

But, let’s talk about murder. So, if we’re charged with murder in the first degree, one of two things the government is alleging. Either, this crime was committed with malice aforethought. Which means that you planned it, and you thought about it, and you executed that plan. Or, that this murder occurred during the commission of an inherently dangerous felony. You hear it on the news, and people use the language the felony murder rule. The felony murder rule picks up more murder charges than most other types of murders here in Oklahoma. And that’s because the legislature has decided if you are engaged in behavior that is so inherently dangerous, that you should be able to foresee a death occurring, and a death occurs, whether you did it, or your co-defendant did it, or the person that’s actually being shot at committed the homicide, the perpetrator of the underlying felony can, and will, be charged with murder in the first degree.

It’s kind of a head scratcher. It goes against what we naturally think about when we think about murder in the first degree. Most of us think when you’re charged with murder in Oklahoma, that you must have had some sort of evil intent, or malice aforethought.

One of the interesting things to know is that malice aforethought, and that intent, can happen in Oklahoma, in a second. There’s no need that you plan it, or think about it. You’re decision to take someone else’s life can happen in a moment’s time. And that is the same charge as if you were plotting and planning it for months on end. That’s incredibly scary, because in that very moment that you make a decision to either pull the trigger, or slash that knife, or engage in whatever activity that’s given rise to the death of this individual, you are now facing very, very serious punishment.

Punishment for murder in the first degree in Oklahoma is very simple – minimum life in prison. Maximum penalty – death. The only thing in between is life without the possibility of parole. We’ll talk about all three of those really briefly. Life, in the state of Oklahoma, is calculated at 40 years. Basically, you have to serve 38 years and three months of any sentence before you’re ever even eligible for parole. So, if you’re sentenced for murder, and you’re sent to The State Department of Corrections, and you don’t have an appellate relief anywhere, you are going to sit there day-for-day for 38 years and three months before the Parole and Pardon Board even looks at your case to determine whether, or not, you’re eligible for early release. That’s a pretty overwhelming number.

Many states in this country have a range of punishment. Our good friends down south, Texas, the wild, wild west if you will. In Texas, you can murder somebody, and murder in the first degree has a range of punishment of a minimum of five years, and a maximum of life. Why does that matter? Because, man it makes working these cases out on a plea deal next to impossible.

The same rule applies with murder in the first degree felony murder. The punishment is life calculated at 45 years. You’ll serve 38 years and three months before being eligible for parole. Or, life without the possibility of parole. Life without the possibility of parole is exactly what it sounds like. That means you go into The Department of Corrections and you never, ever step out. You will die and buried in an unmarked, sad grave somewhere in The State Department of Corrections. You will never, ever breathe another breath of fresh air.

Life without the possibility of parole is an incredibly harsh, oftentimes, deemed unjust punishment. Because, people who engage in this activity, unfortunately, oftentimes are young people. They’re young people who’s brains haven’t even developed so much that they can do a nice cost-benefit analysis of whether, or not, to engage in the behavior that they’re engaged in. Life without the possibility of parole is the thing that drives most people into pleading guilty to a murder charge, even if they’re not guilty. It’s a very, very scary proposition because that judgment is very final. And, it leaves very little room for a jury to justify some of your actions, or mitigate the fact that you were young and inexperienced. Or, that you suffer from mental health illnesses. Or, that you do not have the requisite education to make a cognizant decision.

All of these things matter for the purposes negotiating a plea on murder charges. They do not matter when a jury is assessing punishment. They are not given the opportunity to reduce your sentence because you’re a 17-year-old that functions at a seventh-grade level. And you have mental health issues, and a life and history of abuse. The law in Oklahoma doesn’t care.

The other type of murder that we see, oftentimes charged in the state of Oklahoma, is murder in second degree – depraved mind. What does that mean? Well, it means that you’ve walked into a situation, and you’ve almost ‘lost it.’ It’s almost a moment of insanity. You’ve lost your good judgment. Your mind is depraved of good will. The example that we oftentimes see is if you walk in and you see your spouse in bed with another person, and you absolutely lose it. And, you jump on the bed and you just choke the living life out of one of the two of them. If that happens you may be charged with murder in the second degree. It is my experience that you’re likely going to be charge with murder in the first degree, and we can ask a jury to convict you murder in the second degree.

Murder in the second degree is very uncommonly charged. I think the point of that is because our law allows malice aforethought to happen in a second, the district attorneys use that knowledge, and that use of the law to be able to charge you with murder in the first degree to force a plea down your throat for a depraved-heart murder.

Why would you ever want to plead to depraved-hear murder? Well, because it has a range of punishment of 10 years in The Department of Corrections, and a maximum of life. Therefore, we have something to work with. So, oftentimes cases are negotiated down from murder one to murder two. Also, giving a jury an opportunity to convict you of murder two, as opposed to murder one, if the facts fit the crime. And not all facts fit murder two. It’s very, very specific. And it’s case law driven, and it’s very fact specific. It’s something that you need to sit down with your Oklahoma murder defense lawyer, and talk to them about it.

The second type of second degree murder is murder in the second degree felony murder. These are different that felony murder in the first degree. Felony murder in the first degree have the specific crimes enumerated that tell us exactly what crimes would give rise to murder in the first degree. And they’re the big ones that you would think: armed robbery, rape in the first degree, bank robbery, where you’re engaged in behavior that is so inherently dangerous that you should able to foresee something going wrong. That list includes distribution of CDS. A drug deal gone bad, and somebody dies, that gives rise to felony murder in the first degree. Any other felony, that is not enumerated in the Oklahoma statutes, meaning it is not listed out specifically in law, but if the person is accused of being engaged in any one of the other felonies, and a homicide occurs as a result thereof, you could be looking at murder in the second degree felony murder.

There’s funny things about murder. The sound, the word, always drives home a very different feeling to the listener than any other charge. Many lawyers find themselves a little intimidated by taking on a murder case, because the stakes are so high. People who are charged with murder feel like it’s a greater challenge to defeat, because, again the stakes are so high. But, even more importantly, the risks are very, very high.

That’s why it’s important that you find someone who has experience in defending these cases. Experience in not only defending them in front of a jury, and successfully. But, you need to find someone who is experienced in negotiating murder cases for the purposes of a plea agreement. And what does that look like? You know? When we take away the overlying fear that someone is dead, and that someone is facing life in prison, it’s just a simple assault and battery with a dangerous case. You don’t have a complaining witness, obviously. But, that witness is simply replaced with a medical examiner, and a medical examiner’s report.

So, the challenge in sorting it out for the purposes of going to trial, should not be so great. I understand why it is, but we’ve tried a lot of those cases and we’re incredibly successful in it. It’s not so intimidating that an experienced criminal defense lawyer can’t take it on.

One of the other things that people concern themselves with murder cases, is this idea that jurors, as well as law enforcement and the community, believe that i...