Tag Archives: Criminal Law

In light of some reasonable questions in the comments of my faith healing post at Mirror of Justice about the distinction between ordinary recklessness and extreme recklessness showing a wanton disregard for the value of human life of the kind that can support a mens rea of malice (and therefore, in Pennsylvania, a charge of third degree murder), I thought to mention a very recent decision of the New York Court of Appeals upholding the conviction of a defendant convicted of depraved indifference murder. An important caveat: New York has a special, but I think doctrinally useful, history of attempting to pinpoint precisely what the depraved indifference mens rea looks like that does not necessarily map on to Pennsylvania law. But because I believe that the distinction between ordinary recklessness and depraved heart recklessness can only really be understood by comparing the factual particulars in actual cases–and not by recourse to any abstract principle (for those with an interest, I’ve discussed this issue previously here, here, and here)–and because the facts of the case involve a victim of similar age, the New York case is useful.

In People v. J. Borboni (decided by the Court of Appeals two days ago), the facts showed that the defendant beat a 15 month old child repeatedly around the face and body in a period of about an hour, causing massive damage. The defendant was convicted of what in New York is murder in the second degree (depraved indifference murder of a child) as well as manslaughter in the first degree (intent to cause physical injury to a child; recklessly causing the death of a child). The defendant challenged the sufficiency of the evidence as to both crimes. The standard for conviction of depraved indifference murder is that the defendant evince “an utter disregard for the value of human life,” that the defendant “did not care whether his victim lived or died.” In addition to that distinct mens rea, the state also needed to prove recklessness as to a grave risk of physical injury or death.

In upholding the conviction for depraved indifference murder, the Court distinguished another case, People v. Lewie (2011), in which the defendant “persistently left her eight month-old son with her boyfriend, whom she knew to be violent and cruel, and the man inflicted numerous wounds on the child, finally causing a brain injury that led to his death,” because the evidence was not sufficient to show that the defendant “did not care at all” about her son’s safety: “On the contrary, the evidence shows that defendant feared the worst and…hoped for the best.” Similarly, the Court distinguished People v. Matos (2012), where the defendant’s “intimate partner severely beat her 23 month-old child, resulting in his death” because there was evidence that the defendant did care about her son’s life: she “splinted her son’s leg, gave him anti-inflammatory medication, exhibited other measures to comfort him, and, when she found him bleeding and unresponsive, called 911 for help.”

In Borboni, by contrast,

[T]he jury heard testimony — including medical and forensic proof — that defendant inflicted injuries on a 15-month-old child by striking or shaking the child so brutally as to cause four distinct skull fractures. The nature of defendant’s assault on the child rendered his course of conduct more clearly depraved than had he only suspected that a third party had injured the child. Knowing the brutal origin of the injuries and the force with which they were inflicted makes it much less likely that defendant was holding out hope, as Lewie and Matos perhaps were, that the child’s symptoms were merely signs of a trivial injury or illness….

[T]he charge of depraved indifference murder here is comprised of more than the physical assault on the child; it also encompasses defendant’s inaction for the two hours that elapsed between the injuries and death. In light of the child’s vulnerability and utter dependence on a caregiver, defendant’s post-assault failure to treat the child or report his obvious injuries must be considered in assessing whether depraved indifference was shown. The People demonstrated that defendant, at the very least, left the child unattended for two hours, either disregarding, or not bothering to look for, obvious, perceptible signs that the child was seriously injured. Given defendant’s knowledge of how the injuries were inflicted and his failure to seek immediate medical attention, either directly or via consultation with his girlfriend, until it was too late, there was sufficient evidence for a jury to conclude that defendant evinced a wanton and uncaring state of mind.

The key factual difference between a case like this one and the faith healing case that I discussed yesterday involves the issue of “indifference to human life.” I only know what is contained in the report I referenced yesterday, but from those facts, it seems to me that it is very difficult to conclude that parents who believe that God will intervene to save their afflicted child have the same mens rea as someone like the defendant in Borboni. To the contrary, the most plausible conclusion is that they have just the opposite state of mind: they care deeply about their child’s well-being and believe that what they are doing is in his or her best interest.

Furthermore, I included the paragraph in Borboni relating to Borboni’s failure to report the child’s injuries to anybody else because it contrasts with what is reported in the faith-healing parents’ case. The factual similarity (failure to report in both cases) may mask the issue of motivation. The actor with a depraved heart fails to report on the victim’s condition because he doesn’t give a damn about the victim. But the faith-healing parents allegedly failed to report because they do care about the child’s condition, and they thought that by reporting they would interfere with the child’s best chance at recovery.

I emphasize again that I am emphatically not saying that the faith-healing parents do not deserve punishment. And I haven’t done the research into Pennsylvania law about depraved heart murder to really know in depth what it requires. But particularly when one is dealing with as fact-specific–and as grave–a crime as depraved heart murder, I also think it’s important to try to be precise about the nature of the defendants’ state of mind. There are lots of facts still to come out in the Philadelphia case. But in light of what has already come out, there are obvious questions about the appropriateness of a depraved heart murder charge in that case.

There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.

In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, “malice,” to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: “Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm.” In New York, the equivalent of Pennsylvania’s third category of malice goes by the name, “depraved indifference” murder (that is, implied malice murder), which I’ve talked a little bit about before.  The parents face up to 40 years in prison if convicted of third degree murder.

In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge–the parents’ mens rea.

The first defense is that they “did not know their baby was sick enough to die.” This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious intent. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, ‘don’t-give-a-damn’ recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents’ two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.

But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child’s condition to state authorities was not that they were unaware that the child’s condition was mortal, but that the power of God’s “cure” would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I’d like to see the statistics supporting those claims: as a matter of intuition–I have not studied the matter–it’s not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).

One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course–parents who truly do desire the death of their children. But as a general matter, from the parents’ perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.

In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children’s death.