The tragic story of Nicole Lovell keeps getting more tragic. Eighteen-year-old David Eisenhauer has been charged with first-degree murder and abduction of the 13-year-old. Natalie Keepers, 19, was originally charged with improper disposal of a body and being an accessory after the fact in the commission of a felony. But in yet another new development, the charges against Keepers have been upgraded: accessory before the fact.
Keepers, like countless criminal defendants before her, is learning a hard fact about our justice system: wherever possible, our laws are designed to hold a nonkiller liable for what a killer did. The warning is clear: Beware the company you keep, especially if that company is homicidal.
Holding accomplices liable for the acts of others has always posed a moral challenge. After all, often the crime really exists in the thoughts, and not the physical acts, of the accomplice. For example, the physical act of stabbing someone is almost always criminal. On the other hand, giving a person a knife is not, by itself, criminal. Instead, it depends on the intent accompanying the act: if the knife is for chopping broccoli, giving someone a knife is perfectly legal.
Now take that same physical act of handing someone a knife, except imagine it’s coupled with the specific intent that Professor Plum stab Mr. Boddy in the billiard room. That previously innocent act of handing one a knife suddenly escalates to the worst of crimes, even though in each example you have an identical physical act.
But while it’s fascinating that the criminality depends solely on the thoughts swirling around in one’s mind during that act, our law does not really dwell on these philosophical, coffee house discussions. Instead, American law simply makes it very easy to hold a person liable as an accomplice, even if their participation in the crime was minimal.
In this case, Keepers was initially charged as an accessory AFTER the fact. That crime is treated differently than someone who assists before or during a crime. Technically, assistance after the fact does not contribute to the crime itself, it assists in the avoidance of prosecution. That’s why this crime is subject to much less punishment; in Virginia, for example, it’s a class 1 misdemeanor. But now, the prosecution appears to feel that assistance came before the crime, and so has upgraded the charges.
Oh what a difference if Keepers’ alleged assistance came BEFORE the crime, instead of after it was completed! Accessories before the fact are generally punished as if they did the killing themselves. In Virginia, an accessory before the fact shares the criminal purpose of the doer and gives encouragement or assistance, even though she is not present at the commission of the crime. Almost any amount of help — even verbal encouragement — is enough for criminal liability, as long as it actually induced the killer to do the killing.
But what if Keepers did nothing more than have knowledge about the horrific crime?
At the other end of the spectrum of criminal liability is the concept of mere presence. It is fundamental to American law — and morally surprising to many — that a defendant’s mere presence at the scene of a crime, or even knowledge that a crime is going to be committed, is not itself a crime. In practice, however, courts see even the slightest involvement as rising above “mere presence” and into criminal assistance. In fact, the Virginia Supreme Court once suggested that “mere presence” itself is the conduct that suggests more than “mere presence” at a crime!
“…accompanying a person with full knowledge that the person intends to commit a crime and doing nothing to discourage it bolsters the perpetrator’s resolve, lends countenance to the perpetrator’s criminal intentions, and thereby aids and abets the actual perpetrator in the commission of the crime.”
Wait, what? So mere presence is not a crime, but mere presence itself is evidence that a defendant was more than merely present?
This is actually not an atypical view in the state or federal courts. Criminal defense attorneys will tell you that “mere presence” is frequently offered, but infrequently accepted as a defense. Since even the slightest physical, verbal, or other participation allows for criminal liability, rare is the case that gets tossed because a defendant was merely present.
The case against this Virginia Tech student will depend upon the evidence of her conduct and intent. What exactly did Keepers do? Did she help the alleged killer? If so, what did she know when she did? Did that help, if any, come before or after the killing? Conceptually, it’s easy to talk about something happening “before” or “after” a crime, but when is a crime actually “completed”?
When you think about it, a criminal (or any of us) receives all kinds of “assistance.” Someone fills up the getaway car with gas. His mother cooks him dinner. His girlfriend loans him 50 bucks, and his other girlfriend gives him a twenty. Where does criminality begin?
Our law sends a clear message: It’s true that Americans are generally under no duty to help others or report crimes. It’s also true that mere presence or knowledge of a crime is not a crime. However, knowingly helping criminals in any way is usually a crime.
Of course, that message has largely fallen on deaf ears since time immemorial. Criminals always need help, and are pretty good at persuading people to help them. In fact, our prisons are full of gifted persuaders, experts in coaxing assistance from family or paramours. Check out the visitor’s parking lot at a correctional facility on a weekend, and watch the steady flow of people marching in to put their hard-earned money in a prisoner’s account. People help people. Some people are better at obtaining help than others.
In the coming weeks, we’ll learn more about what the prosecution thinks Keepers did, what she knew, and when either of those things happened. How her defense counters these allegations will be the difference between the visitor’s lot at the prison, and long-term residence at the facility.
The lesson in all this? If a friend or relative shows up and asks for help, don’t let loyalty get in the way of self-preservation. To the law, a friend in need is a co-conspirator indeed.
