Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » May 2004 » Why I specialized in criminal law....

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05/25/2004: Why I specialized in criminal law....

Of course, I went into law school with the idea that I'd do criminal defense work. A few law students do, usually because (like me), they'd read a biography of Clarence Darrow (often supplemented with a memoir by F. Lee Bailey or Alan "A Legend In His Own Mind" Dershowitz) or maybe a few of John Mortimer's Rumpole of the Bailey books, and they realized that, for those of us who are too cowardly to be bomb throwing anarchists, defending the presumed innocent is one of the safest and most enjoyable ways of screwing around with the Establishment. A fair number of the law students who enter law school intending to do criminal defense work get turned off of it, usually for one of two reasons: First, as legal work goes, it doesn't pay all that terribly well (basically, because unless you're Ken Lay or one of his ilk, a Mafia don or bigtime drug kingpin, crime really doesn't pay all that well--maybe a bit better than McDonald's or Wal-Mart, but not as much as, say, a receptionist's job or a position as your average cubicle monkey). Second, and more importantly for most aspiring criminal defense lawyers, making your living by defending those accused of crime requires that you spend a good portion of your professional time associating with criminals. That's an unfortunate fact of life for the aspiring criminal defense lawyer; while we like (for public relations purposes) to paint ourselves as White Knights Defending The Innocent Defendant Against The Awesome Power Of The State, the fact of the matter is that few of those arrested for a crime are factually innocent of it--and in many cases, the folks who are factually innocent of the crime of which they're charged are guilty of far, far worse. Any aspiring lawyer who thinks that s/he is actually going to make a living practicing criminal defense law while defending only the innocent should probably see her/his psychiatrist and see about having the medications adjusted.

But, as I've implied, some of us stick around the criminal defense bar, basically because, compared to other areas of law (like securities regulation, tax law, and estate planning), criminal law is interesting. Because it deals with issues of the valuation of human behavior (after all, the criminal law stigmatizes certain types of human behavior, and deals with questions of justification and excuse as well), it appeals to those of us with interests in that area (my undergraduate major was in philosophy, after all, and I spent a lot of that studying ethics). But not only is the theory itself interesting, but the theory often interacts with truly bizarre facts. Which gets us to today's story.

Most American jurisdictions recognize what is known as the "felony murder" rule. The rule can be stated relatively simply: a criminal is guilty of the crime of murder (usually of a lesser degree than capital or first degree murder) if a death is caused by or results from the criminal's commission of a felony. Any felony. Violent or not.

What makes the felony murder rule fun for law professors (and living hell for most of their students) is trying to apply that simple rule to incredibly baroque factual situations. Few of us will argue, for example, that an arsonist who torches an occupied building, killing the occupants thereof, isn't guilty of some form of homicide even if he doesn't know the building is occupied when he torches it. It isn't a far cry from that to argue that the arsonist who torches an unoccupied building is nonetheless guilty of the murder of the heroic firefighter who loses his life in extinguishing the blaze. But some factual situations can get quite complex.

One of the classic felony murder cases, that we study (for days) in criminal law class is the story of a couple idiots, or at least an idiot and a not-so-innocent bystander. Once upon a time, a real estate magnate decided to do an experiment in practical chemistry, namely, the decomposition of one of the buildings he owned into its component elements: smoke and soot, charred ashes, and insurance proceeds. In order to attend to the dull details of the experiment, the landowner procures the help of two lab assistants. One of them, the Acknowledged Idiot (or AI for short), was also employed by the real estate magnate as a watchman in the building which constitutes the experimental material. The second, Presumptive Idiot (or PI), has been chosen for his alleged skills in the procurement, handling, distribution and ignition of flammable chemicals (in this case, gasoline (or as our coalition partners in the UK would put it, petrol)).

At the appointed hour for the experiment, AI is, of course, already on the premises (he's the night watchman). One of the fringe benefits of AI's employment as watchman is that his boss graciously lets him use a hotplate at the watchman's station, for the purpose of heating some soup for his lunch, boil water for coffee, etc. PI arrives, carrying with him a fair amount of gasoline in an Unapproved Container (I believe it was a one gallon glass jar, but it's been a while since I read this case). PI, being the consummate professional that he is, tells AI that he needs to survey the premises, in order to distribute the gasoline around so it will reduce the building to smoke, ashes and money in the most efficient way possible. Surveying the premises is rather difficult, and the process is not made any easier by having to lug an Unapproved Container with a gallon of gasoline in it. So PI hands the gasoline to AI, and asks him to set it in a safe place while they go and survey the premises.

Unfortunately, the watchman's station is a bit cramped for space. AI places the glass jar with the gallon of gasoline in the only space immediately available. On top of the hot plate.

Did I mention that the hot plate was turned on? (Did I have to? Surely the reader saw this coming.)

PI and AI then wander off to survey the premises. They didn't get terribly far when they found out that, as the song goes, "there'll be a hot time in the old town tonight." I have it from well placed sources that the resulting fireball was quite a sight to see.

End results: AI snuffed it (fitting, since it was his own stupidity which landed them in the whole mess), while PI, after a long stay in the burn unit, was tried for the felony murder of AI. (For those of you interested in the legal end of it: PI was obviously convicted of the felony murder of AI, otherwise we law students would never be reading the appellate court's opinion in our casebook. I wish I could say that I remembered how the appellate court ruled, but, alas, I was too busy laughing my ass off to pay any attention to the decision of the court.)

The Moral Of The Story: be cool, stay in school, and watch where you place those flammable liquids.

Len on 05.25.04 @ 08:18 AM CST


Replies: 1 comment

on Thursday, May 27th, 2004 at 7:55 AM CST, ashby said

"be cool, stay in school, and watch where you place those flammable liquids."

Yes, but is this not the moral of all our stories. perhaps the human experience itself?

Great post.

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