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FOX 11 Investigates: Felony murder

A look at the scene of the shooting in the early morning hours of Sunday, May 21, 2017 outside Jack's Apple Pub in Appleton. (WLUK/Jerry Van Handel)

(WLUK) -- Did you know a person could be charged with murder in Wisconsin even if they didn't actually kill anyone? It's called felony murder.

Prosecutors say the idea behind the law is to hold people accountable for starting a deadly chain of events.

Prosecutors have filed a charge of felony murder in two, high-profile cases in our area including the standoff at Eagle Nation Neenah in December 2015 and the fight and shooting at Jack's Apple Pub in Appleton in May 2017.

In each case, police responded and ended up shooting and killing a man. But the men who died, Michael Funk in Neenah and Jimmie Sanders in Appleton, were not the suspects. Funk was a hostage. Sanders an innocent bystander.

While reviews of each case found that the officers were justified in their use of force, prosecutors are still trying to hold someone other than the police accountable for the deaths.

For the Eagle Nation incident, prosecutors charged Brian Flatoff with 16 felonies, including a charge of felony murder for the death of Funk.

For the incident in Appleton, Henry Nellum is facing four felonies, including a charge of felony murder for the death of Sanders. Nellum was initially charged with five felonies. But in a ruling Wednesday, a judge dismissed one count of attempted aggravated battery against Nellum. However, the felony murder charge remains.

Former Outagamie County District Attorney Carrie Schneider handled the Appleton case before she was appointed a judge in July. After a court hearing in June, she explained to FOX 11 the decision to charge Nellum with felony murder.

"If someone is -- their death is caused and we can relate it back to a certain offense and relate it back to a certain individual, we can charge them under the felony murder statute," Schneider told FOX 11 in an interview on June 21, 2017.

What is felony murder?

It can add 15 years to a prison sentence when a person "...causes the death of another..." while committing one of more than a dozen felonies.

"Causes the death" simply means the defendant's conduct was "...a substantial factor" in the death.

"That's very, very broad and troublesome," said defense attorney Ray Dall'Osto.

Dall'Osto says prosecutors used to have to show a death was the "...natural and probable consequence..." of a felony -- but the law was changed in 1988.

Now, he says felony murder is sort of like dominoes. If you knock down the first domino, or start the chain of events, you can be held responsible for the end result.

"The fact that you initiate it, that is enough to charge you," Dall'Osto said.

In the Appleton case, both police and the current district attorney declined to comment for this story. But in June, the police chief said Nellum is to blame for the tragedy.

"This incident occurred because of the actions of one man. A convicted felon who was illegally carrying a handgun in a bar, who got intoxicated and decided to get into a fight, who pulled out his gun and shot it around at someone and then ran at a door, towards a door with a gun in his hand. This man caused this tragic incident," Appleton police chief Todd Thomas said during a news conference on June 2, 2017.

Nellum's attorney Paul Ksicinski is challenging the felony murder charge.

"You have to look at all the facts, what really started this fight and in fact, what really caused the death of Mr. Sanders," Ksicinski told FOX 11.

In a brief filed in the case, Ksicinski argues the law "...is unconstitutional." because he says it aims to punish someone for something they didn't intend to happen.

"You have to have an action and you have to have thought and there's multitude of Supreme Court decisions that say the same thing. Without both, you shouldn't be convicted. It's just basically unfair," Ksicinski said.

Brown County District Attorney David Lasee says people should know if they commit certain violent crimes, something bad could happen.

"I do think it's fair. I think it's constitutional," Lasee said.

"It's primarily the felony crimes where one could anticipate that someone may lose their life," he added.

Former Wisconsin Supreme Court Justice Janine Geske says the concept of felony murder makes sense to her, especially since the underlying crimes are serious.

"It's not that you're just walking down the street and you're charged with felony murder," Geske said. "You have to be substantially involved in a serious felony and then a death happens and then you're responsible for it."

The cases for both Nellum and Flatoff are still working their way through the court system. Flatoff is scheduled to go to trial in March.

As for Nellum, the district attorney has until the end of the month to reply to the motion challenging the felony murder statute.

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