Tuesday, December 9, 2014

In praise of torture, revisited

Today the Senate democrats have once again aided and abetted the mortal enemies of the United States, this time by releasing their partisan screed condemning what they self-define as “torture.”

Setting aside the democrats’ ulterior political motive, their congenital anti-national-defense philosophy, and their strutting posture as saviors of humanity, their opposition to “torture” is rationally and morally indefensible. Indeed, the conduct hypocritically   condemned in the report—principally “waterboarding”—is considerably less affronting to the human body than Obama’s drone strikes that not only kill but leave some targets (and innocents) literal basket cases.

Because I have tired of making this point over and over, especially to those who should know better, instead of writing yet another essay “in praise of torture” below is an essay I wrote for this blog about a year-and-a-half ago.

Monday, April 22, 2013


Several years ago I wrote that “recently we witnessed Chechen rebels taking over a Moscow theater, capturing hundreds of hostages, and threatening to kill them if the intruders’ demands were not met. Let’s assume the same thing happens in the United States, but with al-Qaeda terrorists. Assume further that we capture one of the terrorists who knows the plans of his comrades, but he won’t talk. Should we use torture to force this crucial information out of him?”

Well, Boston has just experienced an analogous situation. Brother 1 (the elder) and Brother 2 (the younger) detonate two IEDs (improvised explosive devices) at the Boston Marathon killing at least three innocent bystanders and maiming scores of others. Brother 1 is killed in a shootout with police. Brother 2 survives. Not initially having been “Mirandized” (“You have the right to remain silent,” etc.) he is to be politely questioned by crack FBI interrogators who cannot lay a finger on him (are you listening Senators McCain and Graham, and your weak-kneed cohort?).

Let’s say, hypothetically, that Brother 2 tells them that there are other bombs stashed in Boston, ticking away, and set to explode in public places beginning Thursday morning. Perhaps Fenway Park, maybe in a subway, at a race track or Prudential Center Mall. Why not all of them? Or elsewhere. Anywhere.

But there’s a problem. Brother 2 won’t provide any details. He just lies in his hospital bed muttering the mantra of “tick tock, tick tock.”

Frustrated—and plenty scared, after all Brother 2 has proved his bombing creds once already, to devastating effect—the interrogators would like to torture the information out of the terrorist.

"Torture"—commonly defined as "the inflicting of severe pain to force information or confession"—comes principally in two varieties: physical (e.g., the "third degree") and psychological (e.g., sleep deprivation). The literature on torture is voluminous, most commentators concluding that torture is odious and unacceptable at all times and under all circumstances, especially in a democracy.

But is it? Should it be?

Some of the commentators, in their analysis and discussion of the phenomenon of torture, admit being deeply troubled by how a democracy deals with the question of torture generally, let alone in the extreme example of the so-called "ticking time bomb" situation such as the one I posit here.

Until recently the question was hypothetical. Sadly, in the United States of America it no longer is.

There are variations on the ticking time bomb situation, but the essence is in this plausible, even worse, scenario: A known terrorist in FBI custody, whose information is credible, won’t disclose where in Washington, DC, he has secreted a "weapon of mass destruction" – a nuclear bomb – set to detonate in twenty-four hours. The Bureau is certain that the terrorist will never voluntarily reveal the bomb’s location. Within a day our nation’s capital could be wiped from the face of the earth, our government decimated, surrounding areas irredeemably contaminated, and the United States laid defenseless to unimaginable predation by our enemies.

What to do?

Accepting these facts for the sake of argument, we have only two choices. Do nothing, and suffer the unimaginable consequences, or torture the information out of the terrorist.

There are those among us—nihilists come to mind–who would probably stand by idly and endure an atomic holocaust. But most people, realists, would doubtless opt for torture, albeit reluctantly.

They would be correct. They would be entitled to be free of even a scintilla of moral guilt, because torture – of whatever kind, and no matter how brutal – in defense of legitimate self-preservation is not only not immoral, it is a moral imperative.

Unknown to most Americans, one case in two different courts in the United States—a state appellate court in Florida, and a federal Court of Appeals—have, albeit implicitly, endorsed such a use of physical force, and thus of torture, if necessary to save lives.

Jean Leon kidnapped one Louis Gachelin, who was held at gunpoint by Leon’s accomplice. A ransom was arranged, a trap was sprung, and Leon was arrested.

Fearing that the accomplice would kill Gachelin if Leon didn’t return promptly with the ransom money, the police demanded to know where the victim was being held. Leon wouldn’t talk.

According to the Third District Court of Appeal of the State of Florida, when Leon "refused, he was set upon by several of the officers. They threatened and physically abused him by twisting his arm behind his back and choking him [and, allegedly, threatened to kill him] until he revealed where . . . [Gachelin] was being held. The officers went to the designated apartment, rescued . . . [Gachelin] and arrested . . . [the accomplice]."

While this was happening, Leon was taken "downtown," questioned by a different team of detectives, and informed of his Miranda rights. He signed a waiver and confessed to the kidnapping. But before Leon’s trial, he sought to exclude his police station confession, arguing that it was the tainted product of the cops’ literal arm twisting, choking, and threats. (No self-incrimination issue arose from Leon having revealed the victim’s location because that information was not sought to be used against him at his trial).

The trial judge denied Leon’s motion to suppress his confession on the ground that the force and threats used on him at the time of arrest were not the reason for his confession. In other words, the conceded coercion at the time of Leon’s arrest had dissipated by the time of his confession, which the trial judge ruled had been given voluntarily.

Leon appealed. The Florida appeals court affirmed, reaching the same conclusion as the trial judge: Whatever had happened at Leon’s arrest, the coercion had dissipated by the time he’d confessed. Thus, it was proper to use Leon’s confession against him at trial.

That ruling should have been the end of Leon’s first appeal because the only question in the case was the admissibility of Leon’s confession. Yet the appeal court’s opinion went further than the facts of the case required. In language lawyers call dicta—judicial reflections in no way necessary for a decision—the appellate judge added, gratuitously, that "the force and threats asserted upon Leon in the parking lot were understandably motivated by the immediate necessity to find the victim and save his life."

Consider the implications. Even though the motive for using force, and the police’s use of it, were irrelevant to the decision, the appellate court’s 2-1 majority saw fit to give its express approval of physical and psychological coercion in this situation, so long as the product of that coercion (the confession) was not used against defendant Leon at his trial.

Lest anyone think that the dicta in this decision was an aberration, we need look only at the unanimous three-judge decision in Leon’s further appeal to the United States Court of Appeals for the Eleventh Circuit.

The facts were not in dispute. Once again, the only issue on appeal was whether the physical and psychological coercion at the time of arrest tainted the confession, or whether the coercion had, by then, sufficiently dissipated to make Leon’s confession voluntary.

First, the federal appeals court dealt with self-incrimination. As to Leon’s arrest statement concerning where his accomplice was holding Gachelin, there was no issue since the prosecution, properly, had never tried to introduce that statement at the trial. Next, whatever coercion had been used, it did not taint Leon’s later confession because, according to the court, "the totality of the circumstances . . . clearly confirms . . . that the second statement was voluntary." Therefore, that statement was both voluntary and admissible.

The federal appeal court’s ruling concerning the voluntariness of Leon’s confession completely disposed of the case. But, as with the earlier appeal, this court took the unnecessary step of including dicta to the effect that the use of coercion at Leon’s arrest was "motivated by the immediate necessity of finding the victim and saving his life," and that "[t]his was a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death."

Since the appellate courts, both state and federal, went out of their way to express their approval of coercion in a life-threatening situation, their dicta is noteworthy because it signals their acceptance of coercion in principle—a legitimization, as it were.

 If, without objection from a state and a federal appeals court (indeed, with their apparent approval), the Florida police could employ a relatively benign form of coercion to save the life of a kidnap victim, it follows that the same rationale would support actual torture (physical and/or psychological) in a ticking time bomb situation.

Once that threshold is crossed—once the principle is accepted that torture legitimately can be employed to save lives—all that remains is the application of that principle to concrete cases. While that application could be difficult—requiring some showing of probable cause, judicial oversight, and the like—the need to create such important procedural safeguards does not negate the argument that, in this country, where killers are routinely put to death for the commission of a single murder, it is neither immoral nor illegal in principle to employ non-lethal torture—waterboarding, for example—in the name of saving thousands of innocent American lives. 

Indeed, failure to do so is immoral.

Sunday, December 7, 2014

Understanding the NY Eric Garner “Choke Hold” (??) case

Andrew McCarthy has written a fine lawyerly analysis of the Eric Garner (NY “choke hold”??) case (http://www.nationalreview.com/node/393933/print).

Nearly forty years ago—when Erika Holzer and I were practicing appellate law in New York—we won the seminal case distinguishing reckless homicide from negligent homicide and holding that the latter is a lesser included offense of the former. I reprint the court’s opinion below for those who want to understand the subtle difference between the two crimes, and how each could have applied to the Garner situation had the grand jury indicted, which it probably should have. (Several omissions from the court’s unanimous opinion have been made for clarity. I have added the italics for emphasis.)

People v. Stanfield
36 N.Y.2d 467
Defendant was convicted in Supreme Court, New York County, Joseph A. Martinis, J., of manslaughter in the second degree, and he appealed. The . . . Appellate Division . . . reversed. On appeal by the People, the Court of Appeals . . . held that the crime of criminally negligent homicide is a lesser included offense of the crime of manslaughter in the second degree, and that the trial court therefore erred in failing to give defendant's requested instruction on criminally negligent homicide. Order of Appellate Division affirmed.

Attorneys and Law Firms

Robert M. Morgenthau, Dist. Atty. (Lewis R. Friedman and Sharon M. Lynch, New York City, of counsel), for appellant. Henry Mark Holzer and Erika Holzer, New York City, for respondent.


At issue on this appeal is whether the crime of criminally negligent homicide is a lesser included offense of the crime of manslaughter in the second degree.

The defendant was indicted for manslaughter, second degree, for the death by shooting of Thomasina Banks, a woman with whom he maintained a common-law relationship. There were no other witnesses to the shooting and the People's case was proved almost entirely by the defendant's own oral and written statements, judicially determined to be voluntary or otherwise unobjected to.

The essential facts, as reconstructed from the defendant's statements, are these. The defendant and Thomasina, parents of three girls, at the time maintained separate residences. On January 28, 1969, at about 10:00 P.M., he decided to visit Thomasina. Before reaching her apartment, he telephoned a friend, Willie Nyland, the boyfriend of Thomasina's sister, and during a lull in the conversation thought be heard Thomasina's voice in the background. He proceeded to her apartment, arriving at about 10:30 or 10:45 P.M., but was told by the children that she was not home. He then walked to a nearby subway station and a short time later met Thomasina there. The two then returned to Thomasina's apartment, each apparently in good spirits.

Thomasina then changed clothes and the two drank some wine. At least two of the children were in the apartment at the time. Together they discussed purchasing a car and Thomasina tried without success to mend her daughter's dress. Thomasina and the defendant were alone in the bedroom, sitting on the bed with the door closed. The defendant asked whether she had been at Willie's house a short time before. She answered no, explaining that she had been at a friend's.

The defendant then said that he had a gun and that he was going to shoot her. He then went to the dresser and took from the drawer a .38 caliber two-shot derringer. The pistol had been purchased about a year and one half before, test fired once at that time and usually was kept at Thomasina's apartment in a loaded condition. The defendant then cocked the hammer and standing very close to Thomasina with the barrel pointed upward at about a 45 degree angle, but in her direction, repeated ‘I'm going to shoot you.’ Thomasina responded, ‘Bob, don't mess with the gun like that’, and then slapped his hand or arm. The weapon discharged, inflicting a mortal wound through the left breast.

The defendant related an unsuccessful attempt to revive her, unsuccessful efforts to telephone for police assistance and a frantic telephone call to his mother in North Carolina, who advised him to contact the police. He then summoned a policeman on foot patrol in front of 216 W. 62nd Street.

The statements thereafter made relate that he did not intend to shoot, but only to scare Thomasina; that he cocked the hammer because, being familiar with the weapon, she would not otherwise have been frightened.

Ballistics evidence showed that the weapon discharged about 1 ½ inches from the victim. Expert testimony established that in the fully cocked position, 14 pounds of pressure on the trigger would cause the weapon to discharge, but that even in the un-cocked position a sharp enough blow on the hammer could cause it to fire. There was additional testimony that the weapon lacked a trigger guard and that this made it unsafe. A toxological report showed brain alcohol content of 0.075%, indicating that the victim had been drinking.

Upon this evidence and without the benefit of a requested charge on criminally negligent homicide, the defendant was convicted of the crime of manslaughter in the second degree. On appeal, the Appellate Division reversed the conviction on the law and ordered a new trial ‘in which the lesser included crime will be submitted to the jury.’

Subdivision 1 of Section 125.15 of the Penal Law . . . in pertinent part, provides that a person is guilty of manslaughter, second degree, when he recklessly causes the death of another person.

A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

The Criminal Procedure Law provides that “when it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.”

The essential distinction between the crimes of manslaughter, second degree, and criminally negligent homicide is the mental state of the defendant at the time the crime was committed. In one, the actor perceives the risk, but consciously disregards it. In the other, he negligently fails to perceive the risk. The result and the underlying conduct, exclusive of the mental element, are the same.

The People contend that the mental elements of the respective crimes are mutually exclusive and that, paraphrasing the definition of a lesser included offense, it is possible to commit the greater without concomitantly committing the lesser offense, and that, hence, the latter is not included in the former.

The argument, conceptually nice and mechanically accurate, is not persuasive. To begin with, the underlying conduct in each, exclusive of the culpable mental state, is the same. And at the outset the People are met with the equally hyper-technical counterargument that the Penal Law provision which includes within the definition of conduct ‘an act or omission and its accompanying mental state’, is not fully applicable, at least for purposes of what is a lesser included offense under the Criminal Procedure Law definition.

But more fundamentally, criminal recklessness and criminal negligence with respect to a particular result—here homicide—may in a particular case, if not hypothetically or definitionally, be but shades apart on the scale of criminal culpability. And the distinction between the two mental states is less clear practically than theoretically. Indeed, the definitional cleavage the People would draw, while theoretically appealing, may be illusory in practical application. Hence it seems manifest that in a practical, if not a literal definitional sense, if one acts with criminal recklessness he is at least criminally negligent. Moreover, negligence may, in a particular case, quickly, even imperceptibly, aggravate on the scale of culpability to recklessness. The principle seems well illustrated here, or at least the jury, if properly instructed, would have been privileged so to conclude.

It is necessary to say whether in this record there was a reasonable view of the evidence that would have supported a finding that the defendant committed the lesser but not the greater offense, thus entitling him to the instruction as requested.

We think there was.

Whether the defendant perceived the risk of harm and consciously disregarded it (manslaughter, second degree) or negligently failed to perceive the risk (criminally negligent homicide) was, we think, on this record for the jury, properly instructed, to say. When the defendant placed the derringer at Thomasina's breast, he was at least negligent with regard to the risk posed, or so the jury would have been privileged to conclude. Whether when the derringer was cocked and while ‘playing with the gun’, unawareness escalated or should have escalated to awareness of the ultimate risk created—criminal recklessness—was a factual question for the jury, considering all **78 the circumstances including, by way of example, defendant's familiarity with weapons and the safety and other characteristics of this weapon, the interval since he last handled this particular weapon, and the likelihood that it was still loaded. While it is his perception or non-perception of the risk of harm that governs and not the manner of occurrence of the ultimate harm inflicted, risk creation and risk perception are colored also by how others viewed the situation. Here, notably, the jury could conclude from the evidence that Thomasina viewed the defendant's actions as only ‘messing’ with the derringer, which perception, with other permissible inferences, might support a jury finding of guilty of criminally negligent and not reckless homicide.

Therefore, on the particular facts of this case on which we focus rather than merely superimposing the ‘impossibility’ formula of lesser included offense upon the abstract statutory language, we conclude that criminally negligent homicide is a lesser included offense of manslaughter, second degree, and that the defendant was entitled to the requested instruction.

Our conclusion is buttressed by policy considerations. It seems manifest that there is a benefit to the People—indeed here the Assistant District Attorney at trial argued that criminally negligent homicide is a lesser included offense of manslaughter, second degree—as well as to the defendant in recognizing that the one offense is included in the other.

That is especially so where in a particular case, as is illustrated here, the dividing line between the offenses may be factually blurred.

Accordingly, the order of the Appellate Division should be affirmed.


Order affirmed.