Just spitballing here, but what if the person didn't even intend to cause grievous bodily harm and it happened anyway?
My post was a little scatterbrained, but what I meant to say is that there are two possibilities if the attacker didn't intend JBR's death
1. He intended serious bodily harm.<---you are correct that if the attacker didn't intend serious bodily harm, then they would be ineligible.
2. He was guilty of depraved heart murder. <-----This is the bigger stretch for an attacker, depending on HOW and WHAT hit JBR. The Colorado statute provides a person is guilty of murder IF:::
"(d) Under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another; "
The knowledge standard is different in these scenarios. I may not INTEND that JBR's head is cracked open, but I know that hitting someone with a bat very well could. There is some precedent of charging dumb parents or risky parents with this form of murder. see http://www.imperfectparent.com/topics/2008/04/11/mother-charged-with-depraved-heart-murder/