Man accused of killing daughter says her death was not a crime
Published: Wednesday, January 10, 2007 at 6:01 a.m.
Last Modified: Wednesday, January 10, 2007 at 12:00 a.m.
NEW PORT RICHEY — Christopher Michael Wells has an eyebrow-raising answer to the indictment that accuses him of murdering his daughter: Her death was not a crime.
The case against Wells began in 1986. That was when he shook and slapped 2-month-old Christina. She survived, but the attack left her left brain-damaged, wheelchair-bound and partly blind, a perpetual infant whose body grew into adulthood.
In March, Christina died. The cause of death, according to the medical examiner: the injuries Wells inflicted so long ago. In a move with little or no precedent, prosecutors got a grand jury to indict him for first-degree murder.
Now Wells' attorney wants the charge thrown out based on what experts say is an intriguing new argument based on an old law: that a defendant cannot be charged with murder if the victim died more than a year and a day after infliction of the fatal injury.
It's an ancient rule of English common law.
It was also, Assistant Public Defender Michael Tewell argues, the law in Florida in 1986. It follows then that a death that occurred two decades after the crime cannot be murder.
Legal authorities differed on whether that argument will ultimately prevail. But there was wide agreement on this: The issue "will not only be litigated here, it will be litigated in many appellate courts," said Pinellas-Pasco Circuit Senior Judge Susan Schaeffer, emphasizing she could not speak to the specifics of the Wells case.
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'After the fact'
English common law — a body of laws based on tradition, custom and precedent — is the basis for much of American jurisprudence. But Wells' defense rests on a bedrock tenet of constitutional law: No citizen may be prosecuted for doing something that became a crime after the act was committed. Those laws are ex post facto — Latin for "after the fact."
The defense argues the murder charge against Wells is based on the laws of 1988, when the Legislature abolished the common law "year and a day" rule.
But the attack on Christina was two years earlier, on Oct. 21, 1986.
"He has to be tried under the laws that applied the day he shook that baby," said Stetson University College of Law professor Robert Batey.
"To retroactively change the law would violate his constitutional rights because it would be an ex post facto law."
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No it's not, said Assistant State Attorney Mike Halkitis. The "year and a day" rule is a procedural rule of evidence, the prosecutor said, not a substantive rule of law.
Procedural rules are the steps both sides follow through the entire court process, like setting a hearing to argue motions. Substantive rules are what the laws actually mean say, the definition of murder.
Procedural rules of evidence can and have been retroactively changed, Halkitis said, and courts have ruled these are not ex post facto violations.
Batey, however, says a 2000 U.S. Supreme Court decision said, in short: It's not a procedural rule if it affects the verdict.
Halkitis also argues that case law shows higher courts describing the "year and a day" rule as an "anachronism."
University of Florida law professor Robert Moffat backed up the prosecutor, saying there are "good arguments that it's not a rule that applies" in modern times.
Other legal experts agree it is an anachronism.
"When this country started," said UF law professor Jerold Israel, "there was a 'year and a day' rule.
"It was created in a different medical climate, and in today's world where we can keep people alive on machines for a long period of time it doesn't necessarily make sense."
Moffat said the rule hasn't been used in this state since before World War II.
But that doesn't mean the state will win.
The defense could win, Moffat said, because the state Legislature blundered when it tried to fix the law 19 years ago.
"It's not that the defense motion is correct," he said. "It's that the law that was passed in 1988 was badly drafted so it leaves an apparent loophole."
By passing a statute to fix the "year and a day" rule, the professor said, the Legislature actually made it appear that the rule had been law, when it hadn't been applied in more than 80 years.
In 1989, Wells pleaded guilty to aggravated child abuse on his daughter and spent a year in prison. Would prosecuting him again now violate the constitutional prohibition against double jeopardy? The defense makes that claim, but the experts who talked to the Times said that argument may not hold up.
Abusing a child is one crime, the prosecution says. Murder is another.
If convicted of murder, Wells, 39, faces life in prison or death. Halkitis said his office hasn't decided whether to pursue the death penalty.
Batey, the Stetson professor, expects the defense will eventually prevail. Moffat said it's not clear-cut. But he expects a circuit judge to rule for the state, setting up an appeal by the defense that will allow higher courts to weigh in.
But this much, the law professors do agree on:
"What makes this a great exam question," Moffat wrote via e-mail, "is that there is no clear right or wrong answer."
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