Jim Brady was shot by John Hinckley Jr. in 1981 when Hinckley attempted to assassinate President Ronald Reagan. Hinckley was indicted on 13 counts, including the attempted murder of Jim Brady, and he was found not guilty by reason of insanity. Now, almost 33 years later, Jim Brady has died and the coroner ruled that his death was a homicide as it was a result of the gunshot wound inflicted by Hinckley. Now--can Hinckley be retried for Brady's murder? Will he?
Thirty-three years have passed since the shooting. Under common law, the rule was that murder could only be charged if the victim died a year and a day from the act. Since then, however, medicine has evolved and people are living much longer after serious injury. Many states have changed their laws in response. Since it has been more than 15 years since federal courts have specifically addressed how much time must pass between the act and the death, it is not clear what a court would rule here. Given that other courts have extended the time, it certainly seems this would not be the biggest problem for the prosecution. Other legal hurdles are much higher.
One important question is whether a retrial of Hinckley would violate the Double Jeopardy clause. It would not. He was tried on the charge of attempted murder of Brady, not the murder of Brady. A new trial would involve a different charge, and therefore would not violate Double Jeopardy. However, the jury was presented with the same facts and evidence as it would be in a future trial. Hinckley was ruled to be not guilty by reason of insanity. There is a doctrine under the law which says that if an ultimate issue in a case has already been decided it cannot be retried. The defense would say this makes the jury's conclusion that Hinckley was insane binding on the government. While the prosecution may argue that the finding of insanity was not an "ultimate issue", this argument is likely to fail, and therefore a new trial is unlikely.
This is lucky for Hinckley, because if he were to be retried under the current insanity defense law, he may well be found guilty. After Hinckley was found not guilty by reason of insanity, the Congress (and most states) passed legislation to change the insanity defense. Federal law applies here, and the Federal Insanity Defense Reform Act changed the law to not only make the burden to prove insanity more difficult, but also place that burden on the defendant and not the prosecution. Hinckley's attorneys would have a real challenge proving his insanity under current law.
While Hinckley is unlikely to be retried for murder, the ruling by the coroner that this was a homicide may effect his future leave from St. Elizabeths Hospital. Over the years, Hinckley has been granted increased privileges, and he has been out to eat and shopping on his periods of leave to visit his mother. In fact, in 2012 Hinckley's doctors felt that he was well enough to live with his mother full time, but mainly due to an inability to find outpatient therapists, that plan fell through. Any judge asked to give him increased privileges in the future will likely consider the coroner's finding of homicide and be less likely to extend the privileges. It may be that Brady's homicide will serve to keep Hinckley locked up after all-where many believe he belongs.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
