Thursday, September 24, 2015

Murders Without Murderers

Most of my readers surely know by now of my predilection for murder mysteries, although for some reason mostly of the off-shore variety by authors like P.D. James, Georges Simenon, Arnuldur Indridason, Jo Nesbø, Colin Cotterill, Janwillem van de Wetering, Batya Gur, C.J. Sansom, and many others. But today’s letter is about murder not abroad but at home.  And not the kind of murder generally featured in the books of the above-named greats either.

If I were writing a dictionary, I think I would define murder as the doing of some specific thing that leads directly to the death of another person. Clearly, pointing a gun at someone’s chest and shooting a bullet through his or her heart would qualify.  So would feeding someone poison or pushing them off the roof of a tall building. But other variations on the theme make the concept feel murkier to me. In law, intentionality—that is, the question of whether the defendant intended to take the dead person’s life—is a big piece of the puzzle.   But even that is a complicated concept for non-lawyers like myself to negotiate: what, for example, if the defendant can clearly be shown not to have intended to kill the specific person who died but could or should have known that his or her actions were inevitably or almost inevitably going to lead to the death of someone. Since most—okay, all—of my legal training comes from reading the authors mentioned above (plus the occasional John Grisham novel) and watching Law and Order on television, I’m not entirely sure how qualified I am even to have an opinion!  Yet, even for a non-lawyer like myself, the obvious questions to be addressed feel obvious. What should the precise definition of “almost” in the expression “almost inevitably going to lead to the death of someone” be? How long can or should the chain of responsibility actually be before it becomes ridiculous to consider someone even involved, let alone legally responsible, for the death of another? How should the concept of awareness be folded into the batter? In other words, how aware of the potential consequences of one’s acts should one need to be to qualify as a murderer if those acts lead to the deaths of others? What if one had no awareness at all? Is that an excuse? Should it be? And, if it should be, then just how aware exactly does one need to be about the potential consequences of one’s actions?

My first story has to do with one Stewart Parnell, 61, up until just recently the CEO of the now-defunct Georgia-based Peanut Corporation of America but about to spend his next twenty-eight years of his life, supposing he lives that long, as an inmate in a federal prison. The specific crimes with which he was charged are of the kind relating to interstate commerce that non-lawyers will find it complicated to unravel, but the short version is that the defendant was convicted of knowingly providing tons of salmonella-tainted peanut paste (the main ingredient in peanut butter) shipped over state lines to major customers like Kellogg’s with phony lab reports indicating that salmonella screenings had been duly conducted and that the results were negative. Kellogg’s and the other companies then used the peanut paste to manufacture various food products (and not solely peanut butter) that they sold under their own brand names.  Yet email records uncovered by federal investigators revealed unequivocally that Parnell and other in his organization knew that foodstuffs confirmed by lab tests to contain salmonella were knowingly shipped to customers. (Parnell’s brother Michael was also convicted and sentenced to twenty years in prison.) The results were, literally, sickening: more than seven hundred people in forty-six different state were poisoned and nine died after eating foods made from peanut paste that originated in Parnell’s plant.  Nonetheless, Parnell was specifically not tried as a murderer. Indeed, U.S. District Court Judge W. Louis Sands noted in his remarks both that the theoretical maximum number of years of incarceration to which Parnell could have been sentenced was more than eight centuries’ worth and that that was without him specifically being accused or convicted of murder. Indeed, the judge’s word were explicit: “This is not a murder case,” he said plainly.  And, indeed, it wasn’t: the judge was speaking as a jurist, not an ethicist, and was merely commenting on the nature of the charges laid against Parnell, not extemporizing about the nature of his ultimate responsibility for the consequences of his actions. Nonetheless, let’s leave those words ringing in our ears as we move on to consider my next story.

This one is slightly more far-fetched, yet it too features people being killed but without there being any actual murderers to prosecute.  At a certain point, General Motors became aware of a huge defect in at least some of the cars it was selling the public: a defect in the ignition switch that effectively made it impossible for the front passenger-seat airbag to deploy. Aware of the seriousness of the problem, but apparently hoping the problem would somehow just go away on its own, GM sold cars with these defective systems for ten years after becoming aware of the problem. The results were horrific: 120 deaths and another 1385 individuals hurt seriously in accidents that were the direct result of their GM car failing to operate as promised.  As a result of a deal announced just a few days ago by U.S. Attorney Preet Bharara, General Motors has agreed to pay a fine of $900 million dollars…despite its official position on the matter being that it admits to no actual guilt. Settlements with individual parties are in the $575 million category. And on top of that is the cost, to be carried solely by GM, of fixing more than two and a half million vehicles sold under false pretenses when the company knew perfectly well that at least some of them would not perform as advertised in the event of an accident. 

A fine approaching a billion dollars seems almost unimaginable to me, but it’s not the biggest fine ever paid out—it’s less than the $1.2 billion dollars Toyota paid out last year to atone for its sloth in dealing with the unexpected acceleration issue that plagued some of its vehicles, for example—but it surely is an impressive one. Yet, despite the fact that we are talking about specific actions that led directly to ten dozen deaths, no one is apparently going to be charged with anyone’s murder in this case either. Indeed, the New York Times reported the other day that the plan now is not to press any charges at all against any individual employees of General Motors. Let me quote from a September 16 article by Ben Protess and Danielle Ivory: “After more than a yearlong inquiry into the defect,” they wrote, “…federal prosecutors in Manhattan and the Federal Bureau of Investigation struggled to pin criminal wrongdoing on any one GM employee. They concluded instead that the problems stemmed from a collective failure by the automaker.”

As I keep reminding my readers, I’m not a lawyer. Maybe even that’s my problem, the reason I can’t quite understand how specific decisions can lead to more than a hundred innocent people dying, many in the prime of their lives, without anyone at all being indictable for their murder. (Isn’t that what it means when the government decides not to prosecute anyone for murder when someone is killed, that it cannot say that any specific person is personally culpable enough to be convicted in a court of law? Nor do I fully understand how a corporation can be responsible for its action without the actual people who made the decisions that led to those actions being similarly responsible. Corporations are just legal constructs, after all; only the people who work for them can actually make decisions. Maybe it’s not such a bad thing that I’m not a lawyer.) But I do find myself wondering how this story fits in with Stewart Parnell’s: he too did something that led to the deaths of innocents, yet was not charged with murder. I get it, obviously. Too many in-between steps. Too twisted the path from original deed to end-result. Too many intermediaries. Too little like putting a gun to someone’s chest and pulling the trigger. A line so curvy as by its nature not to lead anywhere in a straightforward enough way to make reasonable the hope for a conviction.

Other examples will sound even more far-fetched. Daraprim, a drug I hadn’t heard of until last week, is used in the treatment of toxoplasmosis, a parasitic infection that can cause life-threatening problems for babies born to women who become infected during pregnancy as well as to AIDS patients or others with compromised immune systems. The reason Daraprim was in the news last week was because its manufacturer, Turing Pharmaceuticals, increased the price of a single pill from $13.50 to $750, thus bringing the cost of a year’s worth of pills into the hundreds of thousands of dollars’ range. If someone stops taking Daraprim because of the prohibitive cost—I should mention that the outcry was so intense that Turing has agreed to lower the price, although without saying by how much—but if someone were to be obliged to give up the drug and then actually did die as a result…would anyone be culpable? Certainly not the CEO of a drug company that manufactures a pill that someone could have taken but couldn’t afford to purchase! Wouldn’t that be like suing restaurant owners if someone in the neighborhood dies of malnutrition because they didn’t just give their food away for free? But if someone does die as the result of a specific action undertaking by someone else…how can no one at all be responsible?

These are philosophical, not legal questions sensu stricto. Yet I find them unnerving to consider at this time of the year particularly because I myself spend so much time trying to feel not guilty about the consequences of my own actions if they are only far enough down the pike from where I am standing for me not to feel really responsible…even though it was my own action, my own decision, that led eventually to the consequence I am trying so desperately not to feel responsible for or guilty of. I understand the difference between moral responsibility and legal culpability, and I also understand that being ethically responsible for misery that you yourself didn’t cause but could have alleviated—which intrinsically Jewish notion takes this line of reasoning even further afield of the criminal justice system—is not the kind of value the courts should or even could enforce. But as citizens of the world, we need to hold ourselves to a higher standard…and not to suppose ourselves free of guilt merely because we are so far along the chain of responsibility from the consequences of our actions that no district attorney would dream of indicting us of any specific crime.  The legal system has its own rules and its own goals to pursue. But as we move into the third third of our season of judgment (the one that follows Yom Kippur and only ends finally with Hoshanah Rabbah, the last intermediary day of Sukkot), we need to look past the question of whether we could possibly be tried in court for some tragedy or another that has befallen someone somewhere and instead ask ourselves what it means truly and honestly to be responsible for the world and for the people with whom we share our planet. The earthly courts have their own rules, obviously. But that is specifically not the court in which we stand before God in judgement during these holiday weeks…and that thought bears consideration too as we move forward towards Sukkot.

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