If firefighter dies in arson fire, is it felony murder?

A firefighter died of burns and smoke inhalation while battling an arson fire. Should his death be certified an accident or a homicide?

That question was posed to the National Association of Medical Examiners by one of the member pathologists.

Homicide, most responders thought. Arson is an intentional act, it’s foreseeable that somebody could die as a result and, but for the arson, the firefighter wouldn’t have died.

Some of my colleagues invoked felony murder – a charge brought in many jurisdictions when a death occurs during the commission or as a result of a felony – to justify their decision. Others disagreed.

“I think it’s a very bad idea to incorporate the concept of ‘felony murder’ into the distinction between homicide and accident,” one of my colleagues said.

He cited a Supreme Court opinion noting that many crimes have felony and misdemeanor versions, often distinguished only by prosecutorial whim.

This doctor posed a hypothetical scenario to support his position: If I go to a friend’s house to use his high-speed connection, download a movie illegally and watch it, then hit and kill somebody while driving home, it’s an accident.

If I commit a felony by charging friends five bucks each to watch the movie, then drive home and hit someone, it’s a homicide? Nonsense.

Further, a certification of accident wouldn’t hinder prosecution for felony murder. Drunken-driving deaths are routinely certified as accidents, and prosecution of the drunken driver is routinely successful.

I’ve come to think my colleagues who argue against using the context of a felonious act to justify certifying death a homicide rather than an accident are right – at least for some cases.

Years ago, an elderly man died months after a thief who was fleeing from police ran a stop sign and hit him.

The injured man had severe heart disease at the time of the accident, but he was able to live independently and drive short distances.

His injuries were relatively minor – a broken hip, scrapes and bruises – but he never recovered. After hip surgery, he developed pneumonia.

Worsening heart failure, partially the result of chronic pain requiring medication, adversely affected other organs. Never well enough to return home, he spent the last months of his life in the hospital and a rehab facility.

Just as in the old nursery rhyme (“For want of a nail, the shoe was lost. For want of a shoe, the horse was lost. ... For want of a battle, the kingdom was lost. All for the want of a horseshoe nail”), the series of events leading to the man’s death formed an unbroken chain leading back to the traffic crash. The crash was caused by somebody who was committing a crime. I certified the manner of death as homicide.

The public defender fought like a tiger, but a jury found the thief guilty of felony murder.

I doubt the outcome would have been different if I’d ruled the death an accident. Today, I think that’s what I’d do.

husercj@co.laplata.co.usDr. Carol J. Huser, a forensic pathologist, has served as La Plata County coroner since January 2003.