Not the Killer, But Charged with Murder? Lawmakers Weigh Changing 'Felony Murder' Law

3 min
Neko Wilson, far left, with his brother Jacq Wilson, father Mack Wilson, and brothers Jacque, Gardol and Lance Wilson. Neko Wilson has been in jail for nine years after being charged with a murder he was not present for. (Courtesy of Wilson Family)

Jacque Wilson's life changed on Aug. 5, 2009.

"I always remember that day, because I was at work and I got a call," Wilson said. "My younger brother, the youngest one, Lance, said, 'Neko's been arrested for murder,' and I was like, 'Who’d he kill?' He said, 'I don't think he's killed anyone but he's been arrested for murder.' "

Wilson isn't just any big brother. He has made his life's work defending people accused of crimes at the San Francisco Public Defender's Office. But for the past nine years, he's had a second job of sorts: defending his younger sibling of a killing they both insist Neko Wilson had nothing to do with.

Prosecutors disagree. Nine years ago, they charged Neko with first-degree murder — and said they would seek the death penalty.

He was one of six people charged in the murders of a Fresno couple killed during a robbery of a marijuana grow. It's a killing that prosecutors contend Neko helped to plan.

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They're now seeking life without parole, not the death penalty, but Jacque Wilson insists his brother wasn’t even at the robbery and had no involvement in the killing.

The Wilsons have spent nearly a decade fighting the charge, which, unusually, still has not gone to trial. In those nine years, Neko has missed out on a lot. His daughter is now 12. His dad is now 83.

"I remember when my father turned 75 and Neko wasn't there. I remember all the holidays that he's not there. When we go on any fishing trip, or when I spend time with my dad," Jacque said. "It's just a huge, huge void in all of our lives."

So, when he’s not at the public defender’s office, Jacque lives and breathes the case, which could finally go to trial next year. But he has also received new hope by way of a bill currently making its way through the state Legislature.

Democratic State Sen. Nancy Skinner authored legislation, Senate Bill 1437, which would narrow California law so only someone who had direct involvement in a murder or planning of a murder could be charged with murder.

Skinner's proposal seeks to change a legal principle that dates back to British common law days — but has since been repealed in England, Canada and other common law countries, and more recently in a handful of U.S. states.

"I think, like most Californians, it never occurred to me that you could get a life without parole sentence for having, in effect, nothing to do with the murder," she said.

The idea behind felony murder is that someone who participates in a crime that results in a person's death is just as culpable as the actual killer. Prosecutors argue this acts as a deterrent, and someone who participates in a robbery that turns deadly should be held responsible for the violence.

But critics point to cases where accomplices received harsher sentences than killers who struck plea deals. In some cases, the felony murder rule has been used to charge criminal accomplices with murder when police actually pulled the trigger. In others, robbers have been charged with murder when the victim of the underlying crime was the shooter.

Skinner says the law isn’t just unfair — it’s also unevenly applied to men of color and often to women. She says of the approximately 170 women serving life sentences in the state, "80 percent of them did not commit murder."

She said her proposal would still let authorities hold people responsible, but only if they are directly involved in the actual killing.

"You don't necessarily have to be the murderer. If you planned it, if you directed it, if you paid for the murder, then of course you can be charged with felony murder," Skinner said. "But if you were just around or near when a murder occurred — or not even present, but just had an association with the folks who committed that murder — it would be far less likely, if not impossible, for you to be charged with felony murder under my bill."

But SB 1437 wouldn't just impact pending cases like Neko Wilson's. It would be applied retroactively and allow an estimated 800 current inmates to challenge their murder convictions through a new resentencing hearing.

Allowing people to challenge previous convictions is at the heart of the opposition from many law enforcement groups, including the powerful California District Attorneys Association. In comments to lawmakers, the association wrote that in cases where inmates made plea deals, there's no court record "to determine the exact level of participation in the crime," and that "virtually all participants in murders may qualify for relief to which they may not be entitled."

Unlike some criminal sentencing reforms that prosecutors see as nonstarters, however, this proposal has at least brought both sides to the table.

Take Sacramento County District Attorney Anne Marie Schubert, who has been vocal in her criticism of some other recent criminal justice changes.

Schubert called the felony murder law "a very harsh rule" and said while she wants to see some tweaks to the bill, "I do agree that there’s area for reform."

The bill already has passed the Senate and must clear the Assembly by the end of August.

If it passes and is signed by Gov. Jerry Brown, Jacque Wilson hopes that the murder charges against his brother will be dropped.