Prosecutors weigh ‘heavy hammer’ — felony murder — for rioters in Capitol officer’s death

The former federal prosecutor who oversaw the investigation into the police response in the 2017 Charlottesville white nationalist rally, says many rioters inside the U.S. Capitol could potentially be charged with felony murder, in the death of Capitol Police officer Brian Sicknick.

As federal prosecutors file charges against rioters who took part in last Wednesday’s violent takeover of the U.S. Capitol, investigators continue to gather evidence in the death of Capitol Police officer Brian Sicknick, who died from injuries sustained during the attack.

While most murder investigations focus on the person or persons who caused the fatal injury, former federal prosecutor Tim Heaphy said prosecutors could charge many rioters with felony murder, even if they were nowhere near Sicknick.

Heaphy led the monthslong investigation into the law enforcement performance before, during, and after the deadly 2017 white nationalist rally, in Charlottesville, Virginia. Heaphy was the U.S. Attorney for Western District of Virginia from December 2009 through January 2015, appointed by President Barack Obama.

Under the doctrine of felony murder, which applies in the District of Columbia, any murder that occurs during the commission of one of several underlying felonies is chargeable as felony murder.

“The classic example is if three guys go to rob a convenience store, and one guy is the getaway driver. If in the commission of the robbery, the clerk was shot and killed, all three of the participants in the robbery of the store are potentially guilty of felony murder,” said Heaphy.

On Jan. 6, hundreds of supporters of President Donald Trump broke through barricades and into the U.S. Capitol, as Congress worked to count the electoral votes to affirm President-Elect Joe Biden’s victory.

In the federal murder code, 11 underlying felonies which can be part of a felony murder charge are listed — one which could be applicable to the Jan. 6 takeover is burglary.

“You could look at the storming of the doors of the Capitol by that riotous mob as burglary. If they went in with the intent to steal, disrupt proceedings, to commit other offenses, they committed burglary. And, therefore, a murder that occurred during the course of a burglary could be potentially charged as felony murder,” Heaphy said.

The mere act of breaking into the Capitol doesn’t constitute burglary, Heaphy said. Prosecutors would need to prove that they intended to do something criminal, once they were inside.

“Let’s say somebody storms the Capitol with the intent to disrupt Congress, or steal the sign outside of Speaker Pelosi’s door, and there’s a murder that occurs in the midst of that, he could be charged with felony murder,” Heaphy said.

As with any crime, federal or state, prosecutors have to weigh whether charges can be sustained in court.

In this case, with the crimes committed on federal property, and in the death of a federal employee, the U.S. Attorney for the District of Columbia — which prosecutes cases in both federal and local courts — would have the felony murder count at its disposal.

“That’s why it is such a friend to the prosecutor,” Heaphy said.

“It’s a pretty heavy hammer to charge accomplices, to charge aiders and abettors, who don’t necessarily intend to murder — if they’re going to engage in felonious conduct, they are potentially responsible for the consequences of that conduct, if death ensues.”

Asked whether Acting U.S. Attorney Michael Sherwin and Acting Principal U.S. Attorney Ken Kohl had ruled out filing felony murder charges in connections with Sicknick’s death, spokeswoman Shelia Miller said: “Since this is a pending death investigation, we cannot comment at this time.”

Prosecutors have not named any suspects in connection with the physical altercation that led to Sicknick’s death. A federal conviction for first-degree murder in the District of Columbia, unlike in D.C. Superior Court, is eligible for the death penalty.