LaKeith Smith and the Felony Murder Rule

Trymaine Lee: LaKeith Smith is serving 30 years behind bars for the murder of his friend, but LaKeith didn’t kill him. A police officer did.

In 2015, LaKeith and four other teenagers, at least some of whom were armed, broke into an empty home in Millbrook, Alabama, a suburb just outside of Montgomery. In the course of the burglary, officers showed up. Police say they were fired upon from the house. And then, police say 16-year-old A'Donte Washington came out of the backyard with a gun in his hand and that an officer shot and killed A'Donte.

LaKeith and the other surviving teens were all arrested and charged with burglary, theft, and something known as felony murder.

Archival Recording: The felony murder rule --

Archival Recording: Felony murder.

Archival Recording: Felony murder trial --

Archival Recording: Felony murder charge --

Archival Recording: Alabama's law is based on something called the felony murder rule, a centuries-old legal concept.

Archival Recording: There's an issue with felony murder.

Archival Recording: Forty-two states have some form of a felony murder rule.

Lee: The felony murder rule is a law that says if you commit a crime that rises to the level of a felony, something like burglary, arson, or say, kidnapping, and that crime somehow results in a death, you could be charged with murder even if you didn’t kill anyone.

In LaKeith's case, the rest of the group he was with to plea deals and received sentences between 17 and 28 years. But LaKeith was adamant that he was innocent, that he didn’t kill anyone. So, he went to trial in 2018.

He was only 15 at the time of the shooting, but he was tried as an adult. In the middle of his trial, the District Attorney's Office offered a plea deal of 25 years, but he didn't take it. An all-white jury quickly found him guilty on all charges and a judge sentenced him to 65 years in prison, 30 for felony murder, 15 for burglary, and two 10-year sentences for theft, all to be served consecutively.

Felony murder is an American phenomenon. While nearly every state has a version of felony murder on the books, an expert we talked to said, no other country has a law where you can be charged with murder without actually killing anyone.

Here's an example of how a felony murder usually goes down. Let's say two friends rob a liquor store, the operation goes sideways, and Friend A shoots and kills the clerk. Friend A did the killing but Friend B, who didn’t even fire a weapon, can be charged with felony murder because they were committing the crime too.

But sometimes, it's used when the person who did the killing isn't even a participant in the felony. Say, for instance, the liquor store clerk shoots and kills Friend A, Friend B can then be charged with felony murder. But things get really wild when a police officer is the one who does the killing, like in the case of LaKeith Smith.

In 2012, 19-year-old Tevin Louis and his best friend were robbing a restaurant in Illinois. A police officer showed up, chased his friend down and killed him. Louis, who was down the street when he heard the gunshots, was charged with felony murder for the death of his friend.

Archival Recording: Louis refused a deal that would have required him to plead guilty to his best friend's murder. A jury found him guilty of both robbery and murder. He received a 20-year sentence that he must serve in its entirety.

Lee: After this incident, Illinois began to limit cases where prosecutors could apply the felony murder rule in order to exclude cases where a third party is the one who does the killing. So during robbery, a police officer or shop owner kills Friend A, Friend B can no longer be charged with felony murder.

The change to the state's felony murder law was part of a larger criminal reform bill aimed at addressing disparities in the criminal justice system. One study from Duke Law estimated that more than 80 percent of people sentenced for felony murder in Illinois were Black. It also, disproportionately, impacts juvenile defendants who are more likely to commit crimes in groups.

And the skewed application of the rule doesn't just apply to Illinois. We can see this in other parts of the country as well. For instance, in Pennsylvania a 2020 report from the nonprofit Sentencing Project found that 70 percent of the people in prison for felony murder were African American.

Leroy Maxwell: All too often, I'm talking with mothers, talking with young folks who are saying I thought we were going to steal an Xbox game, I thought that we were going to still a pair of J’s, but I didn’t know that we were going to do anything of that nature.

Lee: Leroy Maxwell is LaKeith's attorney. He wasn’t his lawyer during his conviction and first sentencing, but he's had experience representing people facing felony murder and recently picked up LaKeith's case.

Maxwell: Well, by admitting that you were there for the underlying felony, you’ve admitted to murder. And so, they squeezed everyone in it. They try to use it as a tool to pressure young folks to testify against other folks involved with it, saying that, yeah, I know you didn’t do much, I know you have a good record, you had no intent of anyone dying, but because you were with them, because you were the lookout person, because you were the person driving the car, we're going to hit you with their murder.

And that is a persuasive tool to get someone to flip, testify, and to say things that you want to have them say in the stand.

Lee: Leroy also says one of the biggest problems with felony murder is the mandatory minimums that come with the conviction and the disparity with manslaughter.

Maxwell: Felony murder is not an intent-based crime, and it should not have an intent-based punishment. In Alabama, your punishment is 10 to life in prison for felony murder which makes absolutely no sense. It should be along the lines of manslaughter which, in Alabama, is a punishment from 2 to 20 years in prison.

Lee: Back in 2019, an appeals court lowered LaKeith's sentence to 55 years, saying two of his sentences for theft should be served at the same time. But LaKeith's family kept fighting.

At a resentencing hearing just last month, Leroy argued that LaKeith's original lawyer didn't inform the teenager of the risks of going to trial. This time around, they brought the family of the boy who was killed, A'Donte Washington, to speak on LaKeith's behalf.

Maxwell: They said they don’t hold LaKeith responsible for their son's death. They believe that the time that he served is enough time and they wanted him home right away.

Lee: But it wasn’t enough to get LaKeith home. The judge did rule that all the sentences should be served at the same time. But he held firm on the length of the felony murder sentence. So, LaKeith is still stuck with 30 years.

LaKeith has been behind bars for eight years now, with seven more to go before he can even come up for parole. LaKeith's case has drawn national attention and calls to overturn his sentence. It also put a spotlight on the complicated issue of felony murder.

Maxwell: We're going to ask the court to review his sentence and to review his conviction. I think his is the perfect test case that the Alabama Court of Criminal Appeals and the Supreme Court needs to look at as far as this rogue application of felony murder.

Clearly, the legislative intent did not envision an officer shooting someone and then the co-defendants of the underlying felony be held responsible for that murder. That's not what the law envisioned, however that’s how the law is being applied.

Tina Smith: I don’t agree with that particular law. It just doesn’t make sense.

Lee: At the heart of it is one young man still facing decades in prison and a family torn apart.

Smith: So, knowing that my son's been charged with murder, but never murdered nobody, man, that was tough. I probably cried all night, sat in my room in the dark, like, how did we get here?

Lee: I'm Trymaine Lee and this is "Into America."

Today, how a complicated novel take on the idea of murder sweeps up young Black men into the carceral system as seen through the story of LaKeith Smith and his mother, who is doing everything she can to bring her son home, and how his supporters hope LaKeith's case might change the laws surrounding felony murder for good.

Smith: My family's a typical family, a typical down South family, barbecues, iced tea and lemonade. Sit on the porch on rainy days, reminiscing, talking, just, you know, enjoying each other.

Lee: Tina Smith is the mother of LaKeith Smith. She was born and raised in Montgomery, Alabama.

Smith: We grew up in a large family. My grandma had 14 kids.

Lee: Whew.

Smith: Yeah. And so, I --

Lee: That’s a lot of people.

Smith: Absolutely.

Lee: That’s a lot.

Smith: Hey, it's a lot of love too, let me tell you.

Lee: Mm-hmm.

Smith: And so, we've been family-oriented, like, since I can remember. My aunts are more like my second moms, my uncles are more like dads.

Lee: Mm-hmm.

Smith: My cousins are like big brothers and big sisters or little brothers and little sisters. Like, we're not just cousins, we're close-knit.

Lee: Hmm.

Smith: When one of us go through something, of course, we all go through something.

Lee: LaKeith is Tina's middle child out of three and the only boy in the family.

Smith: And by me being so close to my grandma and, like, all of us went to grandma's house on the weekends. You know, if you wanted somewhere to go, you go to grandma's house.

Lee: Hmm.

Smith: We have a lot of girls, but he was, like, the only little boy and so he was spoiled.

Lee: Hmm.

Smith: He was in everybody's arms all the time.

Lee: Tina says, when LaKeith was little, he dreamed of playing for the NFL.

Smith: He was a big fan of football. Played football in the street together. He tried basketball. He sucked at basketball, but --

Lee: Hmm.

Smith: -- he tried it. Liked it, but he sucked at it.

Lee: It happens. It happens, sometimes --

Smith: Yeah.

(LAUGHTER)

Lee: Right.

Smith: But football was definitely his thing.

Lee: But what always made LaKeith stand out was his laugh.

Smith: Yeah, he was so silly, like once, if something got him laughing, he just went on and on and we talked about it. One story, like, it wasn't funny, but it was funny. So, my mom was staying in this house. And how her driveway was, it was kind of like on a slant, like a sloped hill. So, she called us ahead and got to shop (ph) one day, right?

Lee: Mm-hmm.

Smith: And so she came down the hill just sashaying, sashaying. But she slipped and she fell. It wasn’t funny, but the way he laughed, it --

(LAUGHTER)

Lee: Everybody was cracking up.

Smith: And he's still telling the story, man, and we laugh, like this has happened like yesterday. Oh, man. Dope kid, man. Just a dope kid, my boy.

Lee: But raising a Black boy in Alabama, in America for that matter, is hard. You know, whether it's Montgomery, Alabama, or, you know, Philadelphia, Pennsylvania, when you're coming up Black, right, low income or poor Black, the system is one side ready to get us.

Smith: Mm-hmm.

Lee: Then you have community violence from the other side because everyone is scraping in there and scraping together.

Smith: Mm-hmm.

Lee: As LaKeith became a young teenager, were you fearful that he would get caught up, not just in the system but in some of the community violence and community stuff going on?

Smith: I was. And so, what I did was, you know, I reached out to the police department. I reached out to people that call themselves community activists. Hey, let's get some scared straight programs. Hey, let's start some programs. Like, let's do something, you know, because I have witnessed it in the past, you know, and I know I can't babysit my son. You know what I'm saying? And it's like, just seeing little stuff, like, I know it's time to get something done.

Lee: Mm-hmm.

Smith: And so, you call the police and you're like, you know, I need him, like, to do a weekend in juvenile or do a day at juvenile. Just, like, let him see what it's like to be handcuffed, like on that hard seat. Like, let him see what it's like, right?

Lee: Mm-hmm.

Smith: And so, for the response to be, well, I can't do nothing until he gets in trouble.

Lee: Hmm.

Smith: Like and that’s what trying to prevent --

Lee: Yeah.

Smith: You know what I mean? So, we had, like, no prevention.

Lee: But what is that like for a mother? I mean, again, for any parent, but certainly as a mother, trying to do everything you can knowing that there are traps and pitfalls all around and you're trying, what does that feel like just as a mother of a young-young man?

Smith: Man, it's frustrating. It's annoying. And now, you have people who actually try to judge you. You know what I'm saying?

Lee: Mm-hmm.

Smith: And who don’t know what you did to try to take precaution.

Lee: On February 23rd, 2015, Tina's fears came true.

What was it like when you got that call that LaKeith had been arrested, but more than that, that something much worse had happened?

Smith: The first call I got, it was from officer or detective, whatever, telling me I need to come to Elmore County Jail immediately.

Lee: A friend got on a local Facebook group, and she saw a post talking about a break-in involving a group of boys.

Smith: They said, well, it may be. You know, but I'm like, no, you know. It's like 1 o'clock, school. You know what I mean?

Lee: Hmm.

Smith: So, I leave work, I get in my car, I'm heading to Elmore County. Then, now I'm getting phone call, it’s my family, crying.

Lee: People had seen reports that one of the boys had been killed.

Smith: You know, and we called my son Pimp. And they say, you know, they're saying Pimp dead, they're saying Pimp dead. I'm like, no, look, you know, I just got a call. And they didn't tell me that.

So, I hang up and I call the officer back, like can you just tell me what's going on? You know, I'm getting there, but I need to know what's going on.

He just started telling me, well, I can't tell you until you get here.

Lee: Tina drove the rest of the way in agony.

Smith: So, by the time I get there, a lot of my family had to ride up there too because all we know is my son is dead. So, when we get there, it was still like a 30-minute wait. Like, I had to really, like, get agitated. Like, yo, somebody come tell me something.

So, a detective come out and he showed me a picture. And he said, that's your son, right? I'm like, no, it's not. He said, do you know him? I said I don’t.

Lee: But as Tina realized that her only boy wasn’t dead, she also realized someone else's boy was dead.

Smith: Dark-skinned dude, long locks, slim, couldn't have been no more than my son's age, 15 or 16. I don’t know him. But the picture that I'm seeing, I know he's on the ground and I know he's dead.

Lee: The photo was of A'Donte Washington, lying on the ground just after being shot by an officer. They sent Tina back to the waiting room.

Smith: A few minutes later, this guy's family comes in. And how I know it's the guy's family, the child's family, because I'm looking at the same body frame, the same skin complexion. All of them just look alike. You know what I mean?

Lee: Mm-hmm.

Smith: Literally. And so, I'm like, damn, like, that's that dude family. It looked like two young girls had, like, a little arm (ph) baby that could have been, like, maybe one, you know. So, they go in the back, probably like a second, probably to see the picture. And they come out, they're crying. They're messed up, man. They're messed up.

So, I immediately, you know, I go into mama bear mode. I have to go outside and check on them to see, hey, who can I call? You know what I'm saying? Give them hugs or whatever because I know the information they did just received. You know what I mean? And just 30 minutes ago, I thought it was the information that I was going to receive.

Lee: First of all, let me ask you this, because that sounds like the craziest turn of moments where you think for a second that your child had been killed, just to find out that another mother's baby had been killed. What was that moment like? Because I know in some ways, you're relieved because your son is not dead. But then to find out that another baby's dead.

Smith: It didn’t make it no better. Like, it didn't make the situation any better because whatever's going on is serious.

Lee: Hmm.

Smith: Whatever's going on, whatever had happened, is serious and some mama is about to get the same phone call that I got, but luckily it wasn’t my son. So, it didn’t make our hearts feel better at all.

Lee: Tina soon found out that LaKeith was in custody. And she was able to see him for just a few minutes before they shipped him down to a juvenile facility in Montgomery with charges of felony murder, burglary, and theft. Tina had to go home without her son.

Smith: First thing that come to your mind is I got to get some money. I got to get us an attorney. You know, I got to make some stuff shake. I got to figure something out. So that night, for me, was dark. I probably cried all night. Sat in my room in the dark, like, how did we get here, you know. But how can I get him out of here?

And so, to know that my son's was being charged with murder but never murdered nobody, that was tough.

Lee: Tina's son never came home. Three years later, after LaKeith refused to take a plea deal, he was found guilty on all charges and sentenced to 65 years behind bars. While that was later reduced to 55 years, it was still nearly a lifetime.

And by the time of the trial, a grand jury had already cleared the officer who killed A'Donte of any wrongdoing. The death was ruled a justifiable homicide.

Smith: The person who killed A'Donte Washington is still walking around scot-free.

Andre Washington: Well, I hold the officers, you know, and LaKeith didn’t do it.

Lee: Coming up, A'Donte Washington's father on why he thinks LaKeith should come home and where this fight goes next. Stick with us.

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Lee: During LaKeith's resentencing hearing last month, the defense submitted a request to let LaKeith go from Andre Washington, the father of the boy killed by police.

Washington: You know, like, we always say justice for LaKeith. But you know, it's really justice for my son, too. You know, he was wrongfully murdered.

Lee: Andre believes that the police officers, not LaKeith are responsible for the death of his son. And so, LaKeith being stuck behind bars, that's just not justice to him.

Washington: I just think it was just not right for him to get any time for murdering my son. You know, I could see, like, for break-ins or whatever like that, or the burglary, but not for the murder of my son.

Lee: It's difficult for Andre to go back to court to hear about his son's death over and over. But he says he'll keep going for his son and for LaKeith.

Washington: I've always, you know, been there supporting him and I'm going to continue to support him. And it's just been a rollercoaster ride, you know, just brothers and his sisters and nieces and nephews, and just see that pain in their eyes, you know. Because, like I said, still, we need justice for A'Donte also.

Lee: So, Tina, what's your relationship, like, with A'Donte Washington's parents now? Obviously, you’ve been brought together by this terrible situation, and you didn’t know them before. But what's the relationship like now?

Smith: Andre Washington's very supportive. Always a phone call away, vice versa. He's team us. He's team LaKeith. He's team A'Donte. He's team justice. He's extended his self to me, and he didn’t have to, you know, he didn’t have to. Because I know that each time he comes out, he's reliving, you know, his trauma, you know. So, to be on my side the way that he is, I'm so grateful for him. I appreciate it. And it's all love.

Lee: This March, when Andre returned to court to show his support for the Smith family, everyone thought it was LaKeith's best chance at freedom so far. The judge had agreed to take another look at his sentence. Tina really thought it might happen.

Smith: LaKeith was coming home. Like, we knew he was coming home.

Lee: But the judge didn't send LaKeith home. He didn’t even reduce the sentence for LaKeith's felony murder conviction. Instead, he ruled that all of LaKeith's convictions should be served concurrently, meaning all at the same time. That’s how he wound up with the 30-year sentence he's now serving.

Smith: Yeah, man. That was -- that day was just crazy. I could use so many other words, but that day, like, got my heart broke. I think we all got our heart broke, I mean.

Lee: Brokenhearted because, even though the judge reduced the sentence by 25 years, he still has 22 years to go. But Tina is also angry because she feels like the judge acted like he was doing LaKeith a favor.

Smith: So, to come back and then to say, do you see what I did for you? You didn’t do (EXPLETIVE DELETED). Like --

Lee: Hmm.

Smith: -- I'm sorry, y'all. But like, what did you do? What you did was you played us. That’s what you did do. And what he also did was, him and the D.A., was they woke up some sleeping giants. So, we'll thank them for that.

Another thing that they did that I appreciate is they opened up the blinds so that America can see what's going on in Alabama. Now you got more press, you know, that’s writing about it. You have more people, like the more people talking about it and getting involved in it, the better our chances are.

Daniel Forkkio: It was a sign for the community that we've just go take things to the next level, keep raising awareness around the felony murder rule in Alabama, and keep raising awareness around LaKeith's case.

Lee: Daniel Forkkio is the CEO of the nonprofit Represent Justice, which supports people impacted by the justice system. He's one of the leaders of the Justice for LaKeith Smith coalition. And Daniel says this fight isn't over.

Forkkio: We are going to appeal everything that the judge did that day, we're going to challenge his original conviction and really try to hold this judge accountable because what we know about how this judge has presided over similar cases is that this judge has not treated all defendants equally.

And so, it's time for us to hold the system accountable. And it's time to take a chunk out of the felony murder rule in Alabama.

Lee: Daniel, let me ask you this. Is there any momentum in terms of, you know, adjusting or reforming these laws? I mean, certainly, it makes sense that community members who had no idea what this thing was and how to make sense of it is one thing. But is there anything, any momentum behind any lawmakers, any allies on that side?

Forkkio: The Justice for LaKeith Smith coalition is right now in conversations with some of the lawmakers on the Democratic side to sponsor a piece of legislation that will actually clarify that the felony murder rule in Alabama does not apply to third-party nonparticipants in crimes. And so, the goal is within this legislative session to introduce a bill that will make what happened to LaKeith impossible and to also challenge LaKeith's conviction.

And, you know, we're very optimistic that all of the support from folks from the community who understand this shouldn't happen will turn into legislative support and we'll hopefully get something passed.

Lee: We reached out to the Elmore County D.A.'s office. They did not respond. But in the meantime, LaKeith is still locked up and overturning his conviction is going to be an uphill battle. Tina says she talks to her son on the phone almost every other day but visiting is hard on both of them emotionally, especially on LaKeith.

Smith: You know, I don't know if you've ever been to a prison visitation, but the see you next time is the hardest part. Usually, I want to get him by the hand and say come on, you know, but you can't. And I can only imagine, for me going home as a free person, a free mom, you know, and feeling the way I feel, I can only imagine how he feels having to go back behind the wall.

Lee: How old is LaKeith now? The incident happened when he was 15 years old. How old is he now?

Smith: Twenty-four.

Lee: Twenty-four years old. How has he been changed by this? That period of time between 15 and 24 are pretty important years, as we know, in young adulthood. You're emerging into your adulthood. How has he been changed over these years? And how is he now in terms of just grappling with the realities of everything?

Smith: He grew up super-fast. My son is probably, like, 5'7, probably weigh 150 pounds.

Lee: Hmm.

Smith: He was small, right. So, he knew that the judge was kind of sending a cub into the lion's den. So, he knew he had to grow up. But over the years, he has grown up, you know.

We have real conversations. We have adult conversations. He reads a lot more. He listens. And when I say, listens, it's like he's learned that, you know, you can't always over-talk people. You got to let me say my part, let you say your part, agree to disagree.

He was able to survive in an environment without becoming that environment if that makes sense.

Lee: Mm-hmm.

Smith: So, he's just been resilient, man. Like, he grew up. You know, my son's been locked up. He did his 16th birthday locked up, 18, 21st, you know. So, preferably, we won't go 25, we'll go 25 at home on a cruise somewhere, stretched out.

Lee: Hmm. And you can see that? You can see that?

Smith: Yeah.

Lee: That hope is still there for you.

Smith: That’s where we at.

Lee: Yeah. Your baby boy is behind bars, but there is a piece of him out here in the free world with us. He has a daughter.

Smith: Oh, yeah.

Lee: Talk to us about his daughter. How old is she? And looking at that little face, what is it like, Grandma Tina?

Smith: She's seven now, right.

Lee: Mm-hmm.

Smith: When I met her, she was two, man. She was two when I met her, right. When I first met her, like, she was standing and I'm on a driveway and the way me and my son, we kind of stand like on our leg or something, whatever, and I was like, yeah. And her face was like his babyface all over again. And man, it was like I just got him.

Over the years, I got custody of her. So, she's with me, with me, right, like all the time. And she's so witty, man. She's so old-fashioned.

Lee: Hmm.

Smith: Like, she told me the other day that I was being too sassy. Like, why you --

Lee: She told you --

Smith: -- being so sassy?

Lee: She told you that you was being that --

Smith: Yeah --

(LAUGHTER)

Why you being so sassy?

(LAUGHTER)

I was like --

Lee: Hmm.

Smith: But then, like, listen, she is a hoot to have around, man. Like, she is him, a girl version of him. Yeah, she's just him all over again. Like, she'd get out there, she'd play hard. And when she talked to him, man, they can go at a time, I mean, they can talk. She'd tell him about TikTok and the latest dance she'd do.

And he was surprised that she knew how to swim two summers ago. She started swimming at, like, five.

Lee: Hmm.

Smith: And they was on the phone and she told him, I can swim. And he said, yeah, with a lifejacket on. And she's like, no, I can jump in, and I can swim. Man, listen, she's a hoot to have around, man. Like, that’s going to be the one taking care of me when I get old, I know it.

Lee: When you hear her laughter and you think about LaKeith's laughter when he was much younger, right, can you see a day when the three of y'all are together? Can you see that future?

Smith: Yeah, man. We both, like, three us planning. And speaking of her laughter, listen, she laughs like his dad, right. She laughs like his dad. And when he caught it, she was on speakerphone. And he said, put grandma on the phone. And I said, I'm here. And he said, ma, who does she laugh like? I said just like your dad. Like, she'd laugh, you know.

But, man, like, she's planning, Florida, like she want to go to Florida and go get in the water. She want to take a cruise with us. Like, we're just planning, man. Like, we were going to go. And she's going to definitely be a part of all that.

Lee: If you love the show, continue to help spread the word. You can do that by rating and reviewing "Into America" on Apple Podcasts or wherever you're listening right now.

Follow us on Twitter, Instagram, and Facebook using the handle @intoamericapod or you can tweet me at Trymaine Lee, my full name. Our email address is intoamerica@nbcuni.com. That was Into America at NBC, and the letters U-N-I, dot com.

"Into America" is produced by Isabel Angell, Allison Bailey, Mike Brown, Aaron Dalton, and Max Jacobs. Original music is by Hannis Brown. Our executive producer is Aisha Turner. I'm Trymaine Lee. We'll see you next Thursday.

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