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James Brady's Death a Homicide, but Will John Hinckley Be Charged?

By Mark Wilson, Esq. on August 11, 2014 | Last updated on March 21, 2019

Former Reagan press secretary James Brady's death earlier this month has been ruled a homicide by the District of Columbia medical examiner, apparently based on his being shot in 1981 by John Hinckley Jr.

Hinckley was trying to assassinate President Reagan but failed; instead, he wounded both Reagan and Brady, who was shot in the head. A jury found Hinckley not guilty by reason of insanity (he said he'd shot Reagan to impress actress Jodie Foster, whom he had been stalking), though he didn't go free. He's spent his life since then in St. Elizabeth's Hospital in Washington, D.C., as The New York Times has reported.

But even with the homicide ruling, prosecuting Hinckley for Brady's death 33 years after the shooting "could prove tough," an Associated Press headline from over the weekend reads. That would seem to be an understatement.

Double Jeopardy?

The most obvious problem with such an undertaking would be the double jeopardy clause, which prohibits the same jurisdiction from prosecuting a person twice for the same crime. Because Hinckley was found not guilty of attempted murder, he can't be charged with murder later -- right?

Maybe. It depends on the law. New York, for example, has a "delayed death" exception that allows a person to be prosecuted for murder even if found guilty of attempted murder. In 1994, Ronald Latham pleaded guilty to attempted murder after he stabbed his girlfriend. A month after he pleaded guilty and was sentenced, his girlfriend died. The New York Court of Appeals upheld his conviction under the state's delayed death statute. Washington, D.C., however, has no such exception.

Causation Is Also a Problem

Of course, Brady's is an extreme situation. It's one thing to survive for a month, but Brady survived for 33 years. This presents a problem for causation, which is one of the elements of murder, but usually goes unnoticed ("gun plus gunshot plus loss of blood equals death" makes things pretty clear). But 33 years later, Barry Levine, Hinckley's attorney, told the AP, "How do you prove causation beyond a reasonable doubt?" There are plenty of gunshot victims who survive and die many years later from something other than complications related to the gunshot wound.

At Least Hinckley's Doing Better

Hinckley has been to the U.S. District Court for the District of Columbia numerous times, often in an attempt to gain more freedom.

His latest trip to court involved a government challenge to the hospital's decision to allow him to spend up to 24 days a month at his mother's home in Williamsburg, Virginia. The District Court agreed with the hospital, but cautioned that more time spent outside the hospital would necessitate more court involvement, reported The Washington Post.

The chances are slim that Hinckley will be charged with murder, but that won't stop this news story from hanging around for another week or so.

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