Logical impossibilities and felony murder

State v. Nolan, No. 2013-1290 (Ohio Nov. 5, 2014).

“This case devolves to an anfractuous question: Can a person be guilty of attempting to cause an unintended death?” That’s the question that the Ohio Supreme Court answers in this case. (“Anfractuous,” by the way, means “circuitous.”)

This case is about the felony murder rule. To be convicted of murder, you usually have to intend to cause the death of another person. Under the felony murder rule, though, a defendant can be convicted of murder even if he didn’t intend the death of another person, as long as the death occurred while the defendant was committing a felony (burglary, say). 

In this case, Bobby Nolan was found guilty of “attempted felony murder.” This doesn’t make any sense at all, the Ohio Supreme Court says. Felony murder doesn’t require intent—the whole point of the felony murder rule is that you can be convicted of murder even if you didn’t intend the death of another. But the crime of attempted murder necessarily requires intent. To be convicted of attempted murder, you must have intended to cause—but were unsuccessful in causing—the death of another. And, because you cannot unintentionally intend to do something, there is no such thing as “attempted felony murder.” Nolan’s conviction for that crime cannot stand.

There may be another, and perhaps an easier, way to get to the same result. The crime of felony murder requires that someone have been killed. The crime of attempted murder, I would think, requires that someone not have been killed (because, otherwise, you’d be guilty of murder and not attempted murder). So, to my way of thinking, “attempted felony murder” is an internally inconsistent proposition because it requires that the victim both have died and have survived.