Prosecutor: Defendant can face attempted murder charge again
A Leavenworth County prosecutor is arguing that a man who previously faced an attempted murder charge can face the same charge again.
James D. Thompson, 34, was charged with attempted first-degree murder in connection to an August 2015 shooting in Leavenworth. During Thompson’s 2017 trial, the charge of aggravated battery was presented to jurors for consideration as a lesser included offense to the attempted murder charge. And jurors convicted Thompson of the aggravated battery charge instead of attempted murder.
Thompson also was convicted of other charges related to the 2015 incident.
Judges with the Kansas Court of Appeals overturned Thompson’s conviction for the aggravated battery charge and remanded the case back to the district court level to set aside that conviction.
According to the appellate judges’ written decision, which was released June 12, “aggravated battery is not a lesser included offense of attempted murder in the first degree” in Kansas.
District Judge Gerald Kuckelman set aside the battery conviction last month.
Thompson was paroled from prison for the other charges earlier this month.
Assistant County Attorney Shawn Boyd filed a motion last week, arguing Thompson can be prosecuted again for an attempted murder charge without facing what is known as double jeopardy.
The Fifth Amendment of the U.S. Constitution guarantees that a person cannot “be twice put in jeopardy of life or limb” for the same offense.
In his motion, Boyd states Kansas law prevents a person from being prosecuted for the same crime a second time if the former prosecution resulted in a conviction or an acquittal.
“In the defendant’s case, the case never resulted in either an acquittal or conviction of the primary charge of attempted murder in the first degree or the lesser included offense of attempted murder in the second degree,” Boyd wrote in his motion.
Thompson appeared Friday in court through the Zoom online video conferencing service. Zoom is being used for many Leavenworth County District Court proceedings because of the COVID-19 pandemic.
Thompson’s attorney, Joseph Osborn, requested time to prepare a written response to the motion.
Kuckelman continued the matter until Feb. 5.