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I think you fail to realize how the justice system works.  If the prerequisites exist for a crime,  and the evidence shows to garner a likely conviction they'll push it.  I bet a paycheque that it goes as capital murder to the grand jury IF it fits the requisites of the law for 1st degree murder and capital punishment as per the statutes of the locality where the crime is jurisdictional.  Whether it makes it to trial with that,  who knows.   DAs look out for stuff like that because letting someone go on lesser chargers than are warranted is a real ass kicker in the elections.  It's quite reverse what you think.