Colo. Supreme Court Reverses Lisl Auman's Felony Murder Conviction

Bump and Update: The Colorado Supreme Court has reversed Lisl Auman's felony murder conviction and ordered a new trial! The opinion is here (pdf.) It was authored by Justice Michael Bender.

The Colorado Supreme Court on Monday reversed the felony murder conviction and life sentence of 29-year-old Lisl Auman, who was found guilty of murder even though she was handcuffed and in a police car when an accomplice shot and killed a police officer.

The high court ruled that improper jury instructions may have deprived Auman of her right to a full and fair jury trial on a second-degree burglary charge, reversing her conviction for felony murder -- which was based on the burglary conviction.

Great news for Lisl Auman. However, as the Court upheld the felony murder rule, even when the crime occurs in flight, she will have to stand trial again, unless the Denver District Attorney and the defense can work out a deal. I would hope for time served. And that she be granted bail pending her new trial.

From the opinion:

In this felony-murder case, the Supreme Court holds that, as a matter of law, a defendant’s arrest, by itself, does not terminate a coparticipant’s liability for felony murder when a death occurs at the hands of another participant who remains in flight. Whether a coparticipant’s arrest terminates his or her immediate flight from the commission of the predicate felony while another participant remains in flight is a question for the jury to decide. In this case, the Court holds that the defendant’s liability for felony-murder was properly left to the jury.

Because proof of the predicate crime is an essential element of the crime of felony-murder, the Court also determines whether an admittedly erroneous theft instruction requires reversal of the defendant’s second degree burglary conviction.

This crime served as the predicate crime for the defendant’s
felonymurder conviction. Based upon a review of the record, the Court concludes that the improper theft instruction may have deprived the defendant of her right to a full and fair jury consideration of her defense to burglary. The Court therefore reverses the defendant’s conviction for second degree burglary and, in turn, reverses her conviction for felony murder, which conviction was based upon the burglary conviction, and remands the case for a new trial.

Major credit goes to her public defender, Kathleen Lord, and to Norm Mueller and Rachel Bellis of Haddon, Foreman et.al. who wrote the Amicus brief for the National Association of Criminal Defense Lawyers.

Original Post: 6:47 am

The Colorado Supreme Court is going to release its opinion in the Lisl Auman felony murder case today. It is a case of grave injustice. Lisl Auman was handcuffed and in police custody at the time of the crime, yet under the felony-murder rule , inherited from and long since abandoned by England, she was sentenced to life in prison without parole.

Lisl Auman was 20 years old. She has no prior criminal record. Matthaeus Jaehnig was a skinhead rascist with a long record. She had been handcuffed for ten minutes in the back of the police car when Jaehnig unexpectedly shot the officer. Why should Lisl Auman spend the rest of her life in prison, without the possibility of parole?

It's sad that one of her strongest champions, Hunter Thompson, won't be around to hear the outcome. But you can bet he's watching from wherever he is. It was Hunter that grabbed onto criminal defense lawyers Gerry Goldstein of San Antonio and Aspen and Jerry Lefcourt of New York City, two of the best criminal defense lawyers around, to take up her case, and work along with Kathleen Lord, her public defender. And now, tomorrow's the day.

Here's some of what Hunter has written about the case in the past.

I don't do this very often -- Never, in fact -- but this case is such an outrage that it haunts me & gives me bad dreams at night. I am not a Criminal Lawyer, but I have what might be called "a very strong background" in the Criminal Justice System & many of my friends & associates are widely known as the best legal minds in that cruel & deadly business.

It is no place for amateurs, and even seasoned professionals can make mistakes that are often fatal. The System can grind up the Innocent as well as the Guilty, and that is what I believe happened to 20-year-old Lisl Auman, who was unjustly found guilty of murder and sent to prison for the rest of her Life Without Parole.

In all my experience with Courts & Crimes & downright Evil behavior by the Law & the Sometimes criminal cops who enforce it, this is the Worst & most Reprehensible miscarriage of "Justice" I've ever encountered -- and that covers a lot of rotten things, including a few close calls of my own. Which might easily have gone the other way if not for the help of some hammerhead Lawyers who came to my aid when I was in desperate trouble. (See "Songs of the Doomed," Summit Books, 1990.)

I learned a lot about Karma in those moments, and one thing that sticks with me is a quote from Edmund Burke that says: "THE ONLY THING NECESSARY FOR THE TRIUMPH OF EVIL IS FOR GOOD MEN TO DO NOTHING." That is what got me into the Lisl Auman case, and that is why I will stay in it until this brutal Wrong is Righted....

Indeed. It is no small trick to get a "Convicted cop-killer" out of prison -- but it will be a little easier in this case, because Lisl no more killed a cop than I did. She was handcuffed in the backseat of a Denver Police car when the cop was murdered in cold blood by a vicious skinhead who then shot himself in the head & left the D.A. with nobody to punish for the murder -- except Lisl. It is a long story & I can't explain it all now. But you can find it on the Web at Lisl.com.

Good luck, Lisl. I've been writing about you since 2001, and I really hope your conviction is overturned. As to how Lisl has spent the past nine years in custody, Diane Carman of the Denver Post, provided this poignant account Sunday.

While Auman waits for the ruling to be announced, she said, she has tried to control her anxiety. She's nearly completed her associate degree from Adams State College. She works out in the gym. She knits. She keeps a diary. She writes letters. She meditates.

She used to talk to Hunter S. Thompson regularly and was devastated by his suicide. Thompson had been a vocal advocate for Auman, as was rocker Warren Zevon, who died of cancer in 2003.

But for Auman, life in prison goes on.

While she has been at Cañon City, her brother has married and her father has remarried. She has become an aunt to twin nieces. This year, she'll turn 30. Her days are a blur of fear, anxiety, boredom and intense focus on the positive, whether that means studying for her cultural anthropology exam or fantasizing about what life would be like when - if - she ever gets out of prison.

We're all very apprehensive," said her father, Don Auman. "We're really hoping for the best ... hoping for the best."

Her stepfather, Rob Auerbach, said Friday that the whole family is "scared." So much rides on this decision.

We're all pulling for you Lisl, and wherever Hunter is, he's probably shouting the loudest. Keep the Faith!

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    Reggie Rivers has also been beating the Lisl Auman drum for years and years. Before Reggie took over his show on KHOW, it was my neighbor Sebastian Metz who got the drumbeat started. So many people--high profile people--are on Lisl's side that I have to think that even if the court doesn't act that the legislature will, to clarify the statute so that this doesn't happen again.

    "Hunter Thompson, won't be around to hear the outcome. But you can bet he's watching from wherever he is." Hunter, a noted atheist, would take issue with that comment.

    I'm not sure I'd want to see the concept totally done away with, since if you and a friend rob a bank and your friend shoots someone in the process, you are in some way a party to that shooting as well, but in this case it seems a stretch. If she was really handcuffed and in the back of a police car, after surrendering, I don't see how she is responsible for what the other guy did. Nevertheless, I love some of the verbiage used here. The shooting of the police officer was "unexpected"? Right. He shot at the police cars during the chase, so they knew he had a gun. They shot at him once he was on foot and she was in custody/ Yes he shooting back was unexpected? The only way that works is if they thought she was the shooter in the car and that seems unlikely given the rest of the story. I hope the Colorado Court sees the problem here. Don't know if they will.

    et al - LWOP is too much, but she is guilty of murder. BTW - High profile intervention didn't work in another well known case in FL....

    Fighting Dem, there was nothing religious about my comment - it did not say he was "looking down" as if from above - it said he was watching. Could even be from the next room, who knows?

    Re: Colo. Supreme Court Reverses Lisl Auman's Felo (none / 0) (#6)
    by glanton on Mon Mar 28, 2005 at 07:59:06 AM EST
    How on earth is she guilty of murder? Someone please explain this to me in layman terms, explain how a woman handcuffed in a police car can be held as an accomplice to this muder?

    Isn't that big of our justice stsyem, how nice the boys in black are. let me see the woman is handcuffed raped by the police of her civil and human rights and now someone gets the message? On top of that Our great system of non justice we find out that the judge improperly instructed the jury? it must be how justice is done in the new third world. Oh yes was she allowed an attorney? or just beaten in the court room of our new third world system of one bush one prison cell for all? Don't ask don't tell, is that the system of our national system of justice? by the way "HELP"

    It is good to see Lisl Auman get some relief, and the grounds are appropriate. Calling a botched attempt to recover your own possessions from an ex-boyfriend a serious felony was a mistake, and if cops hadn't been shot at, and if one of those cops hadn't ended up dead, this likely would have been plea bargained down to a misdemeanor criminal trespass and larceny case, if it was prosecuted at all. Still, the real problem is the felony-murder statute. I thought it was unjust when I first heard about the concept in my very first law school course, and I still think it is unjust. By all means, attempt to prosecute conspirators and aiders and abetters for the inchoate offense of conspiring to commit or aiding and abetting a murder. By all means, allow a life in prison sentence for someone who actually does the killing in the course of a felony, but an accomplice simply is not as culpable as someone who makes a conscious decision to kill, and should face the long prison term associated with being an accomplice, rather than the life in prison sentence associated with actually committing murder.

    The facts in this case strongly support the contention that 1. Lisal was not burglarizing anyone but getting her stuff out of her abusive boyfriends room. 2. The guys she was with (friends of her friends whom she had only met that day) are the ones who actually took stuff that was the boyfriend's, not Lisl's while she was somewhere else. 3. The shooter had Lisl in his car by his design and she was as much or more in fear of her life than the police that day. 4. The police made assumptions that the two were "Bonnie and Clyde"ing it and the murder charge stemmed from an accusation that Lisl, while in the back of the police car "withheld" the info. that the alley the shooter ran down was a dead end - which she knew according to the cops (but which the dead cop, who had been in that alley as recently as the day before could not have known!). Lisl deserves justice. Ignore the trolls in here - no cookies today PPJ.

    One more comment, since I can't edit my previous one. This case points out the problem with giving extraordinary deferrence to trial proceedings. The prosecution and defense alike agree that the jury instructions on a key defense point were wrong, and that Auman's defense attorney at trial screwed up by not objecting to the instructions. But, insisting that the defense attorney mistake should put someone in prison for the rest of their life, as the dissent in this decision does, seems like overkill. The "plain error" standard for allowing an appeal even when a trial attorney screws up by not objecting is a very slippery standard that doesn't seem appropriate to apply when a living death sentence is at issue, as in this case. When the stakes are so high, mistakes like the one made by the trial attorney for Auman, should be permitted to have such an immense effect. In misdemeanor and minor felony cases where, at most, a couple of years in prison are at stake, making the court administration efficiency argument might trump substantive justice. But, when a living death sentence is at stake, "plain error" needs to be interpreted liberally. Fortunately, Justice Bender's opinion has that measure of mercy.

    Good for her. And good for Colorado.

    jim was guilty of the murder even tho he was at home masterbating to torture pictures at time

    Isn't this where the Bush's and Tom DeLay intervene in the judiciary to ensure that they "err on the side of life??" **...spitting the bad taste out of my mouth...**

    Re: Colo. Supreme Court Reverses Lisl Auman's Felo (none / 0) (#15)
    by Johnny on Tue Mar 29, 2005 at 08:54:02 PM EST
    Come on ricky, don't bait the man, he is one of the more intelligent republicans around.

    Posted by: Amber Dawson on March 10, 2005 08:31 AM I Am very upset to hear that this happened. I would think that a police department would try to fix the way thay were doing things. If thay relized that thay have been doing things that are uniceptable. Don't you think thay would change there ways or at lest take responsibility for what there doing. Well thay haven't yet and I don't see them doing so any time soon. If thay can't even take responsibility how are we as citizens ever suppost to feel safe. I beleave we need to as citizens maybe start looking over alot of these cases that these cops have over looked. start pulling out officers names that could have handeled the situation differently. After we have gathered a number of situations involving the same officers. We as citizens stand up for our rights and start gainning back a little control over were are tax dollars are going. We are the people paying taxes so we are the people paying these BAD COPES wadges. I personaly hate to think that payed Officer: ERIC BOND, ANTHONY MARTINEZ & SEAN MICHELLS. For the time that thay were put on suspended leave with pay from the night of Dec 29, 2004 the night thay Brutaly Murderd My Husband and Three Childrens Father. Thay Wounded him 19 times 16 of them in the Back. Thay said my husband fired a gun at them. this is March and I have sevral times tried to get some answers from the APD thay refuse to answer. The Autopsy of my Husband came back the secound week of Febuary. This is all the answers I have got. It might be all the answers I need My Huband Was killed approx..2:00 to 2:30 am Shoot 19 times above the waste line and only one shoot to the left arm all the rest in the upper, middle and lower back. Imagen 19 times can you beleave thay took HANDCUFFS OFF MY HUSBAND at the CORNERS OFFICE at 11:00 am and thay still have no exsplination to why the Handcuffs. An in the Autopsy Report there is no prooff that my husband shoot off any weapon. I'll get my answers. I have decided to dedicate the rest of my life to the safty and protection of my Children and one day there children. I WILL MAKE EVERYONE SEE ONE DAY THAT A.P.D has a big hand full of DIRTIE, MURDERING, SERIAL KILLING COPS. One fine day I will make sure that justice is served for the 21 or so overlooked cases In the last 5 months. Im sure this is gonna be a big beginning to the end of the A.P.D as we know it today. MARK MY WORDS Amber M. Dawson We need help from everyone this is a a serious matter. My husband was like any other hard working human he wasn't perfect but I can prodly say that he's not a MURDER and we will be granted the time to be together again. I beleave that nobody has the right to play the role of GOD. There for nobody had the right to decide that Dec 29 would be the last night that my Babies would kiss there Dad goodnight. Posted by: Pete on March 10, 2005 10:05 AM Have any of you read the article? The 19 year old man refused to step outside with the police. This was an individual looking for trouble. Would it have been better for everyone if the police would have said "There's nothing we can here, so we'll just leave". Then everyone can complain that the police won't do anything.

    This is one of the few times I have seen Talkleft actually post the court's opinion and quote the relevant language. Well done! If only all the other posts were like that. [Ed. we almost always cite the opinion so people can read it for themselves when we write about a court decision.]