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Fighting for Jason's Freedom

Indictment vs. Jury Instructions: What Changed and Why It Matters

Indictment Charge

Jason “intentionally caused the death … by shooting the victim through the mouth” under §13A-6-2.

What the Jury Was Told It Could Convict On

The court instructed jurors they could convict on a suicide theory: Jason “directed, instructed, and influenced” the victim to kill herself with a .44 magnum while he was present, and also offered reckless manslaughter and criminally negligent homicide on that suicide theory.

Why This Breaks the Law

Different act, different mind-state: the indictment alleges a direct shooting with intent, while the instruction swapped in suicide with recklessness or negligence.
• No notice: the Sixth Amendment requires notice of the accusation so the defense can prepare. There was none for “causing a suicide.”
• Not a true lesser-included: a lesser-included offense must live inside the same act nucleus. Changing who pulled the trigger is not “included.”
• Constructive amendment: a jury charge cannot rewrite an indictment after evidence closes. Ala. R. Crim. P. 13.5 forbids adding a different offense or prejudicing substantial rights.
• Due process: you cannot convict on an uncharged, undefended theory. The verdict cannot stand.

Authorities to Check
• Alabama Rule of Criminal Procedure 13.5 on amendments and prejudice to substantial rights
• Included-offense doctrine and variance law in Alabama decisions applying the “no new element” rule to lesser-included instructions
• Sixth Amendment notice and Fourteenth Amendment due process cases reversing convictions for constructive amendments or fatal variances

Bottom Line
The grand jury charged murder by shooting. The jury was invited to convict on causing a suicide. Those are not the same case. The Constitution does not allow a conviction on a theory the People never returned and the defense never tried.

Sources and Citations

Alabama Procedural Law

Rule 13.5(c), Alabama Rules of Criminal Procedure —
An indictment can be amended only if it does not charge a “different or additional offense” and does not prejudice the defendant’s substantial rights. Changing “shooting” to “causing a suicide” does both.
Rule 21.3, Alabama Rules of Criminal Procedure —
Requires jury instructions to be confined to the charges properly before the court. A charge not supported by the indictment or evidence violates due process.

Key Alabama Cases

Ex parte Washington, 448 So.2d 404 (Ala. 1984) —
Reversal where the trial court instructed the jury on a theory not included in the indictment. Held: the jury cannot convict on an offense not returned by the grand jury.
Hill v. State, 90 So.3d 826 (Ala. Crim. App. 2011) —
Clarified that a variance between indictment and proof at trial is fatal when it changes the essential elements or prejudices the defendant’s defense.
Ex parte Hightower, 443 So.2d 1272 (Ala. 1983) —
Held that “a conviction cannot rest upon a charge the defendant had no notice to defend.”
Ex parte Cole, 842 So.2d 605 (Ala. 2002) —
Discussed how a lesser-included offense must be part of the same act nucleus; cannot add an element the greater charge does not contain.
Dunn v. State, 8 So.3d 981 (Ala. Crim. App. 2008) —
Explained that the State’s proof must correspond to the charge, and a mid-trial shift in theory violates due process.
Ex parte Evers, 434 So.2d 813 (Ala. 1983) —
Clarified the limits of jury instructions and emphasized that an indictment controls the permissible scope of conviction.

Constitutional Foundations

Sixth Amendment, U.S. Constitution —
Guarantees that the accused “be informed of the nature and cause of the accusation.”
Fourteenth Amendment, U.S. Constitution —
Extends due-process protections against conviction on uncharged or notice-deficient theories.
Blockburger v. United States, 284 U.S. 299 (1932) —
Established the “same elements” test; one offense is not lesser-included if each requires proof of a fact the other does not.

Summary Citation Note:
These citations illustrate that Alabama and federal courts have long held that a conviction cannot stand when the State departs from the indictment after the close of evidence. The charge must remain the same in both fact and law.

The Conviction That Never Matched the Charge

The paperwork tells the story—what the State charged and what the jury was told are two different cases.

I was accused of murder — intentionally shooting another person to death.
I was convicted of causing a suicide under a theory of reckless manslaughter that existed only in a late jury instruction, never in the indictment, evidence, or argument.
Of the trial record and Count 1 of the indictment, the following are verifiable facts:

Conviction vs. ndictment

I was accused of murder — intentionally shooting another person to death. I was convicted of causing a suicide under a theory of reckless manslaughter that existed only in a late jury instruction, never in the indictment, evidence, or argument. Of the trial record and Count 1 of the indictment, the following are verifiable facts:

Before the Jury Instruction

The State never accused me of recklessness.
The jury never heard the State argue recklessness.
The conviction contradicts the indictment — death by suicide versus death by murder.
The State maintained inconsistent legal positions between its case in chief and its jury instructions.
My counsel was constructively denied on the offense of conviction, with no pre-trial opportunity to investigate or defend against the State’s ambush instruction.

Effect of the Ambush Instruction

It denied notice, circumvented due process, and broke the integrity of the trial.
I was denied the right to confront an accuser for recklessness.
I was denied any opportunity to litigate whether the death was a suicide or accidental discharge.
The State admitted on record — outside the jury’s presence (page 2307) — that it presented no testimony or evidence of recklessness.
The jury instructions relieved the State of its burden of proof.
The jury never heard a claim that I performed any criminal act serving as a proximate cause of death.

Facts the Jury Never Heard

No claim that the victim intentionally shot herself.
No claim that I was responsible for her actions.
No claim of intoxication or impairment.
No claim of influence or coercion by my words or actions.
No claim that “but for” any act of mine, the death occurred.
No proof distinguishing a suicide from an accidental discharge.

Legal Failures

Proofs at trial were contrary to the indictment’s allegations.
Jury instructions on “causing a suicide / reckless manslaughter” were inconsistent with any charge made in a manner prescribed by law.
Subject-matter jurisdiction over a suicide theory was never granted by the grand jury.
The State failed to exclude the reasonable hypothesis of a self-inflicted accidental discharge.
The legitimate question posed by the indictment — Was this murder? — was answered by the jury itself: Not guilty.

Additional Misconduct and Neglect

Post-Trial Discoveries

The State made use of perjured expert testimony by Jan Johnson.
Impeachment evidence exposing that perjury was withheld until long after the jury was discharged.
The prosecution ignored its duty of candor toward the tribunal.
The conduct suggests complicity with perjury or outright subornation of perjury.

Investigative Failures

The State failed to perform exculpatory forensic testing — work it was legally and ethically bound to do.
Those tests, if done, would have revealed years earlier that this was not a murder, allowing all parties to see the truth under proper legal light.

Conduct of the District Attorney

District Attorney Joseph Rushing displayed reckless disregard for his oath, the law, and the due process protections of the accused.
His actions — cruel, careless, and constitutionally indifferent — undermine the integrity of his office and threaten the public trust in Alabama’s justice system.