December 5 roundup

by Walter Olson on December 5, 2007

  • Fear of “retribution” and “legal action” among reasons docs don’t report hazardous colleagues and conditions [WaPo on new Annals of Internal Medicine study]
  • Judge rips Milberg for high Chiron fee proposal, questions Skadden’s conflict [The Recorder]
  • Felony murder rule is an American exception with results that can be hard to defend [Liptak, NYT]
  • UK: “Man broke girlfriend’s leg in damages fraud” [Times Online]
  • Often driven by defensive medicine, CAT scans may pose their own risks to patients who undergo them [Newsday on NEJM study]
  • Commentator is glad post offices are lawyering up their Operation Santa gift programs [McDonough, CalLaw LegalPad; earlier; possibly related]
  • Quebec judge nixes suit by Concordia University mass murderer against former colleagues [Canadian Press]
  • Update on Kennewick man and Indian-remains legislation [WashTimes; earlier]
  • Magic of compound interest? Uncollected 1977 award for victim of Evel Knievel attack said to have mounted by now to $100 million [AP/Yahoo]
  • School discipline now a heavily lawyer-driven affair [Charleston Post & Courier courtesy Common Good]
  • Complaint: Cleveland housing authority should have done more renovations to accommodate extremely obese tenant [four years ago on Overlawyered]


1 mmm 12.05.07 at 12:55 pm

Well compound interest on $12.5M, over 31 years, at 6% interest compounded quarterly gets you about 80m. Of course, 6% is a pretty good rate of return.

2 SPO 12.05.07 at 4:03 pm

I don’t think that the felony murder result in Liptak’s article is at all hard to defend. Guy lends car to people he knows are going to use car to drive house that they will burgle. He knows that the occupant may have had to be beaten. Well, the person wound up dead. LWOP sounds just about right.

3 nevins 12.05.07 at 6:08 pm

Liptak and the felony murder guy both try to minimize his role. He claims that he merely lent his car to a friend, and that was that. Liptak really lets it slike that car-guy did know that the car was going to be used for the commission of a homocide.

The only part I don’t get is why the mother of the murder victim didn’t get the same. The crime was committed in order to get the mother’s stash of marijuana. While she got time for posession, she should have also been rolled into the felony murder rap because but for her marijuana no crime/murder would have taken place. She is at least as culpable as car-guy.

4 SPO 12.06.07 at 2:17 pm

Nevins, that comment is pretty silly, if you think about it. We don’t impose murder raps on people simply because, but for their actions, someone would not have been intentionally killed. You’d have a lot of parole board members in the country serving LWOP if that were the case.

5 Celeste 12.06.07 at 5:22 pm

Not to mention that if you’re going to apply that standard, anyone who owns nice things, has their house broken into, and an occupant is murdered in the process of a robbery would be on the hook for charges too. “Well if she hadn’t had the 50″ plasma, they wouldn’t broken into the house.”

6 Res Ipsa Cogitur 12.07.07 at 2:07 am

Most convictions for felony murder have involved violence during the commission of the crime. Without bothering to read the transcripts, it seems that wasn’t the case here – the guy was asleep 1.5 miles away. The notion that but for the loan of the car, or that the car was instrumental in or at least contributory to the commission of the felony in the present case, (and therefore without it, the murder wouldn’t have occurred) is exceedingly hard to swallow. If the crime scene was really only one and a half miles away, and assuming their capacity to do so, nothing was to stop those with the motive and intent to commit the felony from travelling there by foot (or by any other means at their disposal) to commit the murder. The guy wasn’t a willing participant nor was he an enabling agent. It is a question of degree here and that is why most jurisdictions have stuck with violence during the commission of the crime. What happens, if a salesman at a Lincoln dealership knowingly sells a Town Car to a well-lnown thug, and the car is subsequently used by the thug to commit a felony and a police officer responding to the felony accidentally kills a bystander are we going to go after the car salesman? I think not. Stick to the agency theory, together with murder during the commission of the crime.

7 SPO 12.07.07 at 1:47 pm

You’re importing some but-for causation idea from tort into criminal law. Doesnt necessarily work that way.

8 Res Ipsa Cogitur 12.07.07 at 4:29 pm

I don’t think I was doing that at all, although proximate cause analysis is often used in these cases. I was saying that the nexus between the defendant and the crime was his “loan” which for the present purpose was his participation in the crime. His loan had nothing to do with the crime unless the car was an element of the crime. The problem with felony murder is that some view it in a strict liability sense – no matter what the defendant’s involvement he must be guilty without any meaningful legal analysis. This makes it easy on the judge and jury but is horribly flawed from a justice perspective. Suppose he loaned them the money for a bus ticket or a taxi fare (yep looking like murder), suppose he loaned them some shoes to walk over to the crime scene (yes, well maybe he murdered someone), suppose he loaned them an umbrella to keep the rain off (well, uh, um). What about a loan of money for food that provided the biochemical energy necessary to commit the crime? Let’s see, hmmm yes the loan for purchase of food makes him a murderer – sure I can see that. We can continue but I trust the point is made, when an act is too remote it should be treated as such. The vast majority of felony murder convictions have been made against those involved directly in the commission of the crime and resultant homicide– for good legal reason. The problem with the Florida approach is that basically any connection, no matter how tenuous or remote can appear to equate with criminal intent (ie let’s just go ahead and call it premeditation)– and that is simply wrong. Felony murders, in cases such as this one, are, in essence, treated as premeditated murder. I say there is a clear difference that the law should recognize. Notably, the majority of the rest of the world agrees with that position. (BTW I am not defending this guy, rather I object to ratio decidendi).

9 SPO 12.10.07 at 12:56 pm

Res Ipsa,

The facts presented indicate that this guy knowingly helped others commit a burglary. Strict liability is not really the issue, but rather accomplice liability. He is liable for what his accomplices did because he helped in the commission of the underlying crime. I don’t see why this is such a difficult thing. The argument “LWOP for loaning a car” is misleading and is sophistry.

10 Res Ipsa Cogitur 12.10.07 at 2:34 pm

SPO, it is neither misleading nor sophistry – it is actually a cold hard fact. He loaned the criminals his car, one of those individuals killed someone and the sleeping defendant was convicted of murder – all facts. Felony murder is the only sophistry going on here. Some argue, in my view quite persuasively, that felony murder is the ne plus ultra of legal fiction.

You say that “I don’t see why this is such a difficult thing.” Quite right, is not difficult, it is exceedingly simple, in fact it is the veritable essence of simplicity – and that is the problem I have with felony murder – it lacks reasonable, sophisticated legal analysis. He was an accomplice (perhaps not even a willing one) in a burglary. He took no active role in the planning, execution nor commission of the burglary – let alone the murder. None the less we say, effectively, that he murdered someone – when clearly he did not – now see how simple that was, positively refreshing.

The irony here is that if he had accompanied them and participated in the commission of the crime he might have prevented the murder – so in effect, perhaps we could argue that he gets special punishment for not going along and overseeing things (dicere dixi dictum lingua in bucca). The illusory examples I noted earlier exemplify the difficulty that most legal scholars (and many practitioners) have with felony murder. As I said before proximate cause analysis is frequently used in adjudicating these cases, for good legal reason – that is, specifically for reasons of justice. Most jurisdictions in which felony murder originally held sway have abandoned it.

11 SPO 12.10.07 at 4:44 pm

Res Ipsa, the bottom line is that this turkey intentionally/knowingly aided a burglary. The law has concluded that all of those people who intentionally or knowingly aid a burglary are on the hook for all crimes that result from such burglary.

After intentionally helping the burglary come about, this guy shouldn’t be able to disclaim the consequences of the burglary.

There are lots of other practical reasons for the felony murder rule, namely, it incentivizes people to rein in their cohorts in crime and that it prevents the problems of co-criminals pointing the finger at each other. But the reality is that it accurately reflects culpability. If you and I decide to burgle a home, and we do it, and you think that the wife is awfully pretty and decide to rape her, why shouldn’t I be held accountable for that rape? I intentionally created the risk (please don’t say that rape is not a risk of a burglary). I should pay for it. That simple. No sophistry there.

Yeah, it may seem harsh to give this guy LWOP for his minor participation, but he helped a serious crime. Too bad. Personally, I would support execution on these facts.

12 Res Ipsa Cogitur 12.10.07 at 11:31 pm

SPO, thanks for the refresher – I would never have guessed.

Are you still in law school or what? Don’t tell me, Oral Roberts School of Law right?

You seem to think I am defending this guy – I’m not, I say he is (based on what little we know of the case) guilty of burglary – you say he is guilty of murder. There is clearly more than a palpable distance between us on this. Let’s keep it simple, since that appeals to you – the defendant was asleep, the murderer killed someone 1.5 miles away while the defendant slept, so the murderer, per force, must be a different guy. Now try to analyse how we each get to our decisions but this time apply a little mens rea and show me where that takes us. (Not that I even want to go there but – there was no premeditation and no participation in the commission of the burglary (not to mention the myriad of other mitigating issues – mental state, coercion etc), these alone place the sleeping guy in a different category from the murderer.

Not saying you’re not – but I am interested in justice (a rather purer form, I suspect, than you). You seem to have a particular interest in the punishment component, which is fine but that shouldn’t be coupled with a too readily embraced notion that sleeping is equivalent to murder – because someone, somewhere has told you that this can be so, if it is given a special name.

Your take on this, is that the guy who was sleeping was just as guilty as the guy who beat the life out of the young girl – right? Well he’s not – clearly not from an ab initio justice perspective or even a common sense one. You say that’s justice, I say it’s flawed legal rationale posing as justice – thus once again I note that most jurisdictions reject felony murder for good reason – it can too easily produce flawed justice.

Your suggestion regarding the notion that a law as arcane as felony murder will have the socially-desired effect is equally misplaced – the numbers are available if you’re genuinely interested.

I can see that you are struggling with this concept – so, my suggestion, do some reading and consult sources somewhat more erudite than the Durham DA Times.

13 SPO 12.11.07 at 6:24 pm

Res Ipsa, interesting how you belittle me, but make such crass errors.

1) It is clearly possible for more than one murderer to be responsible for a single murder, and it certainly is possible for a murderer to be asleep at the time of a killing (the “hitman” situation springs to mind).

2) Your arguments about mitigation are pretty weak. These, ultimately, were fact questions for the jury. Now, it is possible to have a regime other than the all or nothing regime Florida has imposed–but even such a regime would almost certainly allocate some degree of blame for the murder to the defendant here.

3) The law imposes punishment, theoretically anyway, based on moral culpability. This jerk facilitated a burglary, and a woman died as a result of that burglary. Your claim that a higher justice means that he should not be held responsible for a risk he clearly helped create is bunk. I am not struggling with the concept at all.

4) Is this guy as culpable as the triggermen? I don’t know, but likely he is not. Typically, we don’t have a ton of gradation for murder, and it seems to me that the requirement of graduated punishment as between co-defendants is not required for a system to be just. Since when is that the categorical imperative?

5) Once again, I find your “sleeping is not murder” argument an exercise in sophistry. The point is that he was not sleeping when he knowingly performed the act that facilitated the burglary that led to the young woman’s death.

Let’s see, guy knowingly helps others commit a burglary that results in death, but, gee, he was sleeping, so he’s not responsible in any way for the death.

14 Walter Olson 12.11.07 at 7:17 pm

Commenters are reminded that personal attacks and insults are out of place. Please discuss the opinions and not those holding them, okay?

15 Res Ipsa Cogitur 12.11.07 at 8:58 pm

SPO you said:
“2) Your arguments about mitigation are pretty weak. These, ultimately, were fact questions for the jury.”
No argument with that.
“Now, it is possible to have a regime other than the all or nothing regime Florida has imposed”
Now you’re catching on.
“–but even such a regime would almost certainly allocate some degree of blame for the murder to the defendant here.”
Precisely – some degree of blame.
“3) The law imposes punishment, theoretically anyway, based on moral culpability.”
Thanks for the lesson!
“This jerk facilitated a burglary,”
A fact.
“and a woman died as a result of that burglary.”
Not a fact. She died because someone, a particular person, murdered her during the commission of the burglary.
“4) Is this guy as culpable as the triggermen? I don’t know, but likely he is not.”

Spot on!

Sorry if I seemed somewhat disparaging in my previous post. In a none too subtle fashion I was simply suggesting that it is all too easy to have strong beliefs because the black letter says “it is so” or even more suspect because of personal conviction. These traits are understandable but those of us directly involved in the law need to guard against them. All statutes, regardless of their raison d’etre (genesis in notions of social good, for example) and no matter how insignificant they may seem should be scrutinized exceedingly carefully for unintended consequences and, where they fail the test of absolute justice, they should be railed against by thinking people such as you SPO.

16 SPO 12.11.07 at 11:28 pm

We’ll just have to disagree. This guy helped a burglary that resulted in death. I believe that he is therefore morally culpable for her death and should be punished for helping to create the circumstances in which she died. Harsh result? One could argue that, and one could argue that we need to have a more graduated system for non-major participants (which is what you seem to be arguing for, of course, there is line-drawing there too). Of course, one could also simply say that when you help out a burglary, you are on the hook for everything that happens as a result thereof. You knowingly create a situation in which someone dies, you gotta pay. And paying he is. I don’t lose any sleep over it.

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