Sorry, but I’m a lawyer. I looked this up. While this issue hasn’t been 100% settled, it appears that Fracture’s double jeopardy issue rests on solid ground. Under a 1912 Supreme Court case called Diaz, it appears that one can be charged for a greater offense even if one has been acquitted for a lesser included offense IF one element of the greater offense does not arise until after the first prosecution. Hopkin’s wife wasn’t dead when he was acquitted for attempted murder. Therefore, he wasn’t in “jeopardy” for a murder prosecution. After she died, he was. Illinois and California courts have applied the Supreme Court holding to attempted murder/delayed death/murder prosecution scenarios and upheld the second prosecution.

Sorry Terry, you are wrong here and are misapplying a legal principal to the facts of Fracture. Once it is established as a matter of law that the alleged killer DID NOT shoot the gun, it is impossible to prove murder that thereaftre flows from the gunshot wound. It is Res Judicata that he did not shoot a gun at his wife. Your principal could only apply to a new crime with a new element that can secure a conviction despite an already adjudicated element of not guilty.

Troy, I can understand what you are trying to say. But, when a person accused of the attempted murder of a person that was shot winds up acquitted, it is established as a matter of law that he never fired the gun, which would be a 100% necessary element to prove a murder. You would have to be a lawyer to understand that Res Judicata works this way. It does not matter if it was ever known who fired what gun. It is enough that we know she was shot and that the law now deems that HE did not shoot a gun, any gun, at her. You can never prove that he killed her with a gun when he has been acquitted of a crime that involved the firing of a gun. (P.S., it is kind of fun discussing this issue, even thoguht the film is fictional. I guess it was a good movie aftre all if we are all chatting about it.)

Are we not forgetting something huge here - that this is a MOVIE! It is a work of fiction! It is not, and does not claim to be, based on any true story! As such, the movie writers and directors are free to work within the general realms of what might be possible - in order to entertain a viewing audience! I work as a teacher - but I havent seen a movie yet that portrays to exacting standards, what is involved in teaching. I have friends who work as Doctors - does every episode of E.R. or any movie, ever truly replicate a true medical situation? I know people working in Law Enforcement - that doesnt mean that that “Beverly Hills Cop” has to conform to law enforcement regulations! If you want to watch something that is 100% real, and 100% current, and an accurate representation of our jobs, and our lives, and the times we live in - then watch the news!!!

How could the Anthony Hopkins character know with near certainty which gun the cop/lover would leave with after the Hopkins character was arrested? It was essential to the Hopkins character’s plan that he leave with the gun used to shoot the wife.

But here’s the thing about switching the guns: It’s hard to believe that Hopkins could have expected to have the opportunity to switch the guns’ locations without being detected by the cop/lover. Without being near-certain that he could do this, his plan was far from foolproof. And this was pre-planned — that’s why Hopkins went into the cop/lover’s room.

John - good question. I really don’t know if an acquittal would make a difference, but the guarantee of double jeopardy is to protect a person from a second prosecution after he has been already acquitted or convicted of that offense… North Carolina v. Pearce, 395 U.S. 711. So, I think it probably doesn’t matter.

H - relax… we are just having a legal discussion. Either way, the movie was entertaining. However, it is certainly better from my standpoint if the crux of the movie has some legal validity.

Frank Booth- I think DJ would still attach, since the charges were brought. the defendant has already been placed in “jeopardy,” even though the case was not carried through to the end. Therefore, he can’t be re-charged for the same issues, right?

I love this legal discussion. My husband and I (2 lawyers) engaged in a fairly heated discussion concerning the same issue on the way home from seeing the movie this evening. As an ex-prosecutor and criminal law prof, I plan to do some research but thought that the legal justification may lie in the charging of a separate offense. Double Jeopardy says you cannot be tried twice for the SAME offense. Hopkins was aquitted for the attempted murder of his wife - the actus reus being the shooting, the harm being the gunshot wound to the head. My theory is that the Murder charge at the end of the movie was for a totally separate act by Hopkins which resulted in a totally separate harm. The actus reus being the pulling of the plug or the termination of her life support, the mens rea - he did it with the intent to kill and the harm - her death by lack of oxygen to the brain. At trial, Gosling would use the dramatic confession he obtained at the end of the movie for his evidence of mens rea. Thoughts?

i have to agree w/ John. the (not too extensive) research i conducted after my earlier posts leads me to these conclusion:
(1) if convicted of assault, the charge can be upgraded to murder if victim dies. (i’m certain of this) (2) if there was an acquittal, or dismissal, etc., then there is res judicata with respect to those facts. in other words, hopkins couldn’t be charged with an upgrade because it is forever establisehd that he didn’t do the shooting, etc.

btw, J, you are missing the fact that hopkins LEGALLY pulled the plug on his wife. in other words, it is not murder, because the GVT has excused this type of homicide (pulling the plug) is acceptable (in the same way self-defense and other excuses permits a homicide)

I am a legal secretary (just civil, corporate/commercial and matimonial, by the way, not criminal) from Montréal, Canada and am not versed in American law. All the same, I do not believe that a person who was acquitted of attempted murder can be charged with murder for the actus reus that was evoked in support of the attempted murder charge.

If the defendant would have been still on trial when the victim succumbed to her wounds, then yes, his charge would have been upgraded. What is important to note here is that the charge would have been upgraded; the defendant would not face a new charge of murder. More than charges, “murder” and “attempted murder” are mere words that are used to denote criminal charges that have different scopes and penalties. What we would have, therefore and in essence, is a charge of committing an act that would have caused harm amounting to either attempted murder or actual murder; the ramifications of the act would be unknown, but the basis of the prosecution of the act would be known indeed and, most importantly, the prosecution of the act would be decidedly and voluntarily undertaken on the basis of proof existing at the time. And if the defendant would be acquitted following the prosecution of the act and the victim would then pass away due to the actus reus denounced at trial, there would be no charge to upgrade, because the defendant would have been acquitted of the aforementioned actus reus. It is simply a question of timing. To illustrate my point, if the victim would have succumbed to her injuries during the defendant’s trial, his trial would have continued with the charge having been upped to murder and, on the basis of the same legal arguments and proof and actus reus, the charge would eventually be dismissed and the issue forever closed.

What you folks have missed throughout your blogging is that for the prosecution to try the defendant for murder after an attempted-murder acquittal is equal to a weak attempt at appealing the first judgment, which is another issue altogether, even though I do not think such a thing would succeed, because the failure in the first instance of this case would have been wholly due to the prosecuting attorney’s being ill-prepared - a problem for which the defendant should not be held accountable, much the same way as the prosecution would not be held accountable for the defendant’s refusal to seek legal counsel (a warning that the defendant was given). It is an affront to the principles of justice and, quite frankly, tantamount to court-style vigilanteism, to retry a defendant, with the intent of trying to dispense justice anew, when one is unsatisfied with the first outcome. While the justice system is far from perfect, we are all expected to content ourselves with its frailites; it is the price we pay to ensure equality and the respect of everybody’s rights within our own societal abilities.

I furthermore disagree with J’s contetention that the defendant could be tried with murder on the basis that, in the act of legally withdrawing life support, the mens rea of the defendant was malus in se. The illegality of the act first has to be established before the mens rea is questioned and the act here is perfectly legal.

I felt that I had to add my opinion here. I hope that it is appreciated.

What I do not understand about the movie, however, is why we did not get a chance to hear some of the legal arguments favouring the second trial of the defendant and the eventual verdict. This is what stinks about the movie. I think the movie would have earned a better reputation if it showed us why it took such a final angle. I furthermore cannot understand why the defendant did not use the services of a lawyer in his first trial. Did he think that a lawyer would have fouled up his plan, or did he just want all the credit for himself? I mean: after all, he uses a lawyer to proceed with euthanizing his wife and for his second trial! Any answers and/or thoughts would be appreciated.

Could a felony murder theory be used in California, or do California courts reject felony murder theories as a matter of policy? For example, if theft of a government official’s handgun is a felony in California, then might the felon be criminally liable for the forseeable consequences (indeed, the intended consequences) of the theft? I don’t think that the judge at the first trial made a specific finding that the defendant had not fired the gun but, if the judge had made such a finding with regard to that criminal act, would the theft of the gun be a separate felonius actus reus for which the defendant wasn’t charged at the first trial? Perhaps a similar argument could be based on the concealment of a handgun for which the defendent didn’t have a permit, if such concealment is a felony in California, but it’s harder to demonstrate a causal relationship between such concelament and the death of the defendant’s wife. In contrast, procurement of a murder weapon is necessary for murder. Furthermore, wouldn’t the defendant’s second confession be admissable to supply the mens rea for the actus reus, the felonious theft of a handgun belonging to a government official?

I probably wouldn’t have puzzled my way toward any felony murder theory if I’d heard the rationale announced by Gosling to Hopkins near the end of the movie, but I didn’t hear it. I didn’t have any audio. I woke up yesterday on the airplane during the movie. I didn’t ask for headphones, but looked up and saw a number of scenes, starting when the police negotiator entered Hopkin’s house. I saw Gosling acting like a hotshot and thought he was somehow going to be chastened in his dispute with the creepy old guy. I couldn’t imagine why the police negotiator forgot his professional training and beat the defendant, not once but twice. It appeared, however, that there was some problem with the chain of custody for the gun or with the ballistic test, leading to the point near the end of the first trial at which Gosling, seeming at last to recognize his problem, appeared to tell the court that the city or state had “no further evidence to offer” I could lip-read those five words because there were not many other things Gosling might say, but I was helped by the the fact that the crowd on the plane (it was full) was so unusually quiet at the moment that I could actually match his consonants with the rhythm of buzzes coming from the overly loud headphones of the lady next to me. (She was reading a book on healing therapies; maybe she should start by not abusing her ears.) Anyway, I guess a lot of people on the plane were waiting with bated breath to hear whether Gosling by his words could work magic to save his case. It was apparent that he couldn’t.

Later, however, I saw Gosling reading a double jeopardy case. That scene got me to pay more attention. After some other scenes, I finally saw Gosling appear to confidently announce a rational for a second prosecution in his conversation with Hopkins. I wondered what it might be.

Not having heard what Gosling said, I could only hypothesize. I wondered whether Hopkins did something with the weapon that could be identified as a felony, from which death resulted.

There might be a number of possibilities. Having seen Gosling watch a fuzzy video of Hopkins skulking around in a hat, I wondered whether obtaining authority over another person’s body by trick and then killing the person was a felony in California. Maybe the culmination of a criminal intent to deprive someone of life (pulling the plug on an unfaithful wife) should be felonious under these particular circumstances if, for example, the California legislature didn’t specifically intend to exhume a husband’s feudal right over the body of a wife with whom the husband was displeased. Having seen Hopkins talking on the phone to Gosling as Gosling feverishly looked through a folder of photos showing the dead police negotiator, I even foolishly wondered whether Gosling thought that Hopkins could be implicated in the policy negotiator’s death. Hopkins’ worried demeanor as the second trial began indicated, however, that this new rationale undermined Hopkins’ composure.

Tonight I turned to the internet to learn find what the new rationale was. The article on Wikipedia that I found tonight revealed that the murder weapon belonged to the police negotiator rather than to the defendent. My lack of audio access necessitates, however, that I ask you whether the following excerpt from the Wikipedia article is correct:
“[B]efore the crime, in a hotel where Jennifer and Nunally were together, Crawford switched his handgun with Nunally’s identical one. After Crawford shot Jennifer with Nunally’s gun, when Nunally arrived (carrying Crawford’s gun) and Jennifer was assumed to be held hostage, Crawford and Nunally agreed to lay down their guns to negotiate. Nunally, horrified to learn that Jennifer has been shot, did not notice Crawford as he switched the guns back again. After arresting Crawford, Nunally holstered his own gun, which left Crawford’s unfired gun to be taken as evidence.”

Maybe Hopkins intended to frame the negotiator for shooting his wife, then changed his mind whether the negotiator was assigned to come to Hopkins’ house. Regardless of Hopkins’ plan, however, the theft of a government official’s weapon may be a felony from which death resulted.

I know that felony murder theories are unpopular today, especially in the minds of defense lawyers. Felony murder theories are sometimes creative, i.e. unpreditable and ex post facto. Anyway, why should any defense lawyer ever appreciate a creative prosecution theory? Defense lawyer only appreciate creative defense theories? I regret my ignorance of what California courts think about felony murder theories.

Thinking I might have a workable theory (i.e. acting like a hotshot myself), I was disappointed to see the Wikipedia report that “by allowing his wife to die, Crawford’s crime has been elevated to murder (rather than attempted murder) and is therefore no longer subject to the rules of double jeopardy.” I don’t think that such a rationale would be just, but then I don’t always understand what people in California regard as just. The life of the law is experience, and their experience has been different from mine. Please advise whether California law countenances felony murder theories. Thanks.

Well, after reading about 90% of the comments here from the many layers, prosocuters, paralegals law professors and what ever else you guys ego can dream up, one line comes to mind from the movie “are you just going to ask the same question in a different way till you get the answer you want” Yea, what do I know I’m not an a attorney! I know I hope to God I never need one!

Okay. Besides the whole gun switching/double jepordy thing, I have a couple things I’d like some opinions on.

About 1/2 way through the movie when Willy was trying to collect evidence, he went to the house and found a drawer/box with some baby articles in it - a brush, dr seuss book, and a picture of a small child - how does this fit in with the movie as the idea of a child was never brought in at any other point?

Also, close to the end when Willy was down at the station and he and the detective are in the same room, why is there such an emphasis on them having the same phone and almost switching them??? At this point, I had thought that possibly the detective was in on it, and he when he accidently picked up Willy’s phone, he knew that it was Ted and instinctivly handed it to Willy. Does that make sense to anyone? I just felt that it was odd that there was such a point made during that scene that they had the same phone, but then it didn’t go anywhere…thoughts?

Kristy,
i was also thinking about the phone mixup and i finally realized that it didnt have anything to do with the detective being in on it. it was simply the director showing the audience that Gosling was in the process of figuring out the “gun switch” through seeing the similar phones getting mixed up. the phones were the same and got switched….the guns were the same and got switched.

Just saw the movie, and I agree that the double jeopardy issue is not legally sound. Hopkins legally pulled the plug on his wife.

FYI, to non-lawyers, this bugs lawyers because its like a football team that is behind by 9 points, and scores a touchdown to win the game - its nice, but doesn’t really make sense.

Hi BJ,
I understand your confusion. To us legal people, the ending makes no sense and ruins it for us too.
Basically, Ryan said, now we have a bullet, and she is now dead, so now we can try you for murder. Ryan implied that double jeopardy only applied to attempted murder, and now that the facts have changed, we can charge you with murder.
There are a couple of problems with this:
1) I think that double jeopardy applies to the underlying facts, not what is charged (?)
2) Her death was not murder. The cause of death was not the bullet, but pulling the plug, which Hopkins was legally allowed to do. So, no murder!

The Fifth Amendment provision, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” has been made applicable to the states through the Fourteenth Amendment (Due Process Clause).

There are exceptions to this rule. If all the elements that constitute the second offense have not occurred at the time of the trial of the lesser offense, or the prosecution, using reasonable diligence, could not have been aware of all of these elements, the defendant may be tried later for the greater offense. For example, if the defendant injuries the victim, he/she may be tried and convicted for assault and battery, and may later be tried for murder if the victim dies after the first trial. However, even the victim’s subsequent death would not permit a subsequent trial for murder if the defendant had been acquitted of assault and battery.

Furthermore, the act of “pulling the plug” on his wife would also not constitute murder as it was done legally, (since he’s still her next-of-kin and is allowed to make such decisions; ignore for now whether he might be denied such status, perhaps on the grounds that his culpability in her death could be proved by a preponderance of the evidence or even clear and convincing evidence, even though it wasn’t proved beyond a reasonable doubt at the criminal trial).

Therefore, Hopkins couldn’t be tried again.

Here’s the big problem with the logic of the movie. Every gun has a serial number. If Hopkins switches guns and the police take this gun from him as evidence, they would know in about 15 minutes that this gun isn’t his because the serial number doesn’t match the serial number of the gun registered to him. In fact after checking this gun they would know it was the officer’s and that the guns had been switched. All they have to do now is get Hopkin’s gun from the policeman who went into the house. This is the actual murder weapon.

Simple.

I agree with Amy T that assuming they could try him again, I am left at the end of the film going “so what” as far as the prosecution being able to establish that the bullet came from Nunally’s gun. They would have had a circumstantial case, I suppose, using the video, evidence that no one had come or gone from the residence within a certain time frame and some alibi of Nunally. The key piece of evidence is, of course, his confession to Ryan Gosling, but that didn’t seem to be something the prosecution was going to use, given that Gosling was prosecuting and therefore couldn’t call himself as a witness.

Amy T raised a good point, has anyone given some thoughts about what the outcome of the second trial could have been? The evidences would have been all based on what weapon fired when… But didn’t the cop switch the bullet in the evidence room during the first trial, in order to build fake evidence?

Thus, one will end up with

- Bullet in the wife skull = Cop Gun (1)
- Bullet in Hopkins living room = Hopkins Gun (because they were switched) (2)
- Bullet in suicidal cop = Cop Gun (3)

If (1) and (2) were correct, this would implied hopkins had the 2 guns before the cop even came in the house… could be hard to explain all this except for tinted evidence…

I am not sure what you do when you realized that the evidence have been “messed with” but that could probably dismiss all of them, and then Hopkins could run free again…

The cases the prosecutor was reading before he “turned the tables” were People v Saul, 167 Cal. App. 3d 1061, in which a defendant was convicted of attempted murder, the victim later died, and murder charges were brought, and People v Bivens, 251 Cal. App. 3d 653, in which a defendant admitted to assult with a deadly weapon, the victim subsequently died, and murder charges were later filed - both very different scenarios from that in the movie. From a legal standpoint, the movie doesn’t fly.

1- Hopkins switches guns with bad cop
2- Hopkins shoots wife with cop’s gun
3- Hopkins switches guns - bad cop walks out with murder weapon
4- Bullet in wife’s head from bad cop’s gun (the murder weapon)
5- Gun recovered from bad cop after suicide
6- Hopkins still can never be convicted for murder regardless of double jeopardy - his gun was never fired - right?
7- gun serial numbers???

8- opinions?

I am a curious man, a mathematician, not a lawyer. My late cousin was also a curious man and he was a lawyer. He argued ( and lost )a murder case appeal before the Supreme Court. Later he was Dean of the Georgetown University School of Law. He would have loved this discussion. I don’t know if he would have liked the movie.

The perfect-crime theme is attractive to me and I think most of us. I am usually torn between identifying with the criminal or with law enforcement. It depends on who I like. If the crime is a theft of millions of dollars and nobody gets hurt I often side with the criminal ( Michael Caine in the “Italian Job”, Steve McQueen in the Thomas Crown Affair).

FRACTURED split my family. NetFlix. My teenage daughter wanted Willy to win and keep the fancy new job. I wanted Anthony Hopkins to go free and make more airplanes. My wife just wanted to watch the movie. The ending caused quite an argument. I expressed doubt about the legal issue. My daughter argued that I was saying that because I was a sore loser. Somebody said it didn’t matter because it was “just a movie”. That made it worse.

These are not just movies. They affect our views of reality and society. I tried teaching history to a class of 7th graders who believed “Stargate Atlantis” was the true story. People justify torture based upon events that occur only on “24″. Kennedy assasination theories are given undue credence based on JFK. OJ was acquitted on television by people who watched television. Some of my fellow jurors in a rape trial thought it was their job to critique the trial rather than decide if the guy had committed the crime. A good movie with fake reality can do real harm. My daughter thinks I am just a sore loser.

Is AN INCONVENIENT TRUTH just a movie like THE DAY AFTER TOMORROW? Was World War II a John Wayne movie? OJ made the movie CAPRICORN ONE in which NASA faked landing on Mars. I know people who don’t believe we landed on the moon. They vote.

Ted’s constitutional rights are violated in FRACTURED. I care.

Doug

Everyone, I think you are forgetting something: the principle of NON BIS IN IDEM. No one can be judged twice for the same offense. As lawyers, you must have some basic logic skills. Tell me, if he was found innocent for attempted murder, how could he be later found guilty for the same offense? I mean, it is untenable from any point of view.

Great, healthy debate here kudos to you all.

No one has yet explained what would have happened when the cop realised he was missing four bullets out of his gun!!!

Sure i’ll accept Hopkins successfully switched guns with the cop in the movie (unlikely as this would have been in real life) but can’t accept that he had time to switch magazines and or switch/replace the ammo in the cops gun, or that this would have gone undetected for any significant period of time.

I suspect the cop committed suicide when he figured it out - not out of grief - but from knowing he had been set up all along and that his gun was the (attempted murder) weapon.

The cop would have known Hopkins couldn’t be charged for her murder ‘if only for the movie plot’, if it was established that Hopkins never fired a gun in the earlier trial.

I love the legal arguments presented here but it is just a movie, perhaps with a certain amount of ambiguity in areas to intentionally leave you thinking…

Can anyone tell me the name of the nice poem recited by Gosling mid way thru the movie?
Thanks.

I’ve been searching for the poem featured in this m0vie ever since i heard it..anybody with a clue as to title?