Murder Verdict Nixed Over Lawyer Not Objecting to Instruction

Sept. 23, 2020, 7:37 PM

A defendant convicted as an accomplice in a double murder is entitled to a new trial because his lawyer didn’t object when the judge dropped the mental-intent requirement from the jury instruction, the Third Circuit said Wednesday.

Aaron Tyson, Otis Powell, and Kasine George were in a car following a van with two brothers in it who pulled a gun on Tyson. When they pulled up behind the van, Powell asked Tyson, who was driving, for his gun, and he gave it to him.

Powell got out of the car, told the other two to wait, walked up to Daniel and Keith Fotiathis and shot them to death. Powell got back n the car and the three drove away.

Under Pennsylvania law, the specific intent to kill is an element of first degree murder, and an accomplice must act with the same intention as the principal, the appeals court said here in an opinion by Judge L. Felipe Restrepo.

The judge in Tyson’s trial instructed the jury that a person is an accomplice if he intended to promote or facilitate a crime, the court said. But he didn’t say that Tyson had to intend to promote or facilitate the murders, U.S. District Court for the Third Circuit said.

The due process clause of the U.S. Constitution requires prosecutors to prove every element of the crime, and the instruction didn’t require him to prove Tyson’s specific intent, the appeals court said.

There also was no language in the instruction that would have led the jury to connect the requisite intent to kill to the role of an accomplice, it said.

The absence of an objection in this instance by Tyson’s lawyer “is indefensible,” the court said.

“We cannot fathom a strategic reason for counsel’s failure to object to an instruction that eliminates the state’s burden to prove an element of a crime that carries a mandatory sentence of life imprisonment,” it said.

Judges Kent A. Jordan and Morton I. Greenberg joined the opinion.

Wiseman & Schwartz LLP represented Tyson.

The case is Tyson v. Superintendent Houtzdale SCI, 2020 BL 363594, 3d Cir., No. 19-1391, 9/23/20.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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