QUESTION
Should the protagonist have been found guilty, and if so of what, had justice prevailed in the fictional rural New York courtroom of Theodore Dreiser's 1925 novel An American Tragedy?
Sometime in the early 1920s Clyde impregnated Roberta Alden, a poor girl employed in a workroom he supervised at the successful collar factory owned by his uncle. Clyde's charm and joie de vivre were earning him, though poor, poorly paid, and largely ignored by his uncle's family, a tentative spot in the highest level of the regional young society.
Falling in love with the brightest light of that society, the daughter of a wealthy factory owner, Clyde found Roberta, and her demands for marriage, a decided hindrance. Reading of an unidentified couple who had drowned in a Massachusetts lake, with only the woman’s body ever found, Clyde thought how nice it would be if he could someday read the same story with Roberta's the body found.
At first this was only a macabre reverie, “I wouldn't; I couldn't, but here's how it might play out. . . .” Picking up a brochure on Adirondack lakes was, as he told himself, only the sketching in of a dark fantasy, not a plan. As he took more and more preparations towards getting Roberta to the lake country with separate travel and assumed names, he was still ambivalent. He was going to do it, but then maybe not. Roberta might accept a promise of financial support and go away. Perhaps it would turn out impossible to pull off without detection. Possibly he couldn't do it anyway, because it was wrong or because he was weak.
Although never wholly free from internal struggle, Clyde followed out the scenario step by step. Finally, they were in a small rowboat at the farthest end of a lonely lake. It was time to overturn the boat, but Clyde was struck with the sudden realization that he wasn't going to do it. He really was too cowardly. His dreams of the rich girl and a life of luxury and pleasure were gone. Almost in shock, he was frozen in place.
Roberta, noticing his strange, agonized, look, sprung towards him. Not wanting her to touch him, and with some anger, he shoved into her face the twin lens reflex camera with which he had shortly before been taking her picture. Their combined awkward movements overturned the boat. She, a non-swimmer as Clyde knew, called for his help. He, a strong swimmer, watched her go down and swam calmly to shore. He walked the pre-plotted overland route through the woods to a small town, and later the next day joined his society friends at another lake.
Everything
from then on went wrong for Clyde. The prosecution was able to assemble almost
every bit of the abundant evidence tending to show that Clyde killed Roberta in
cold blood with elaborate prior planning all stimulated by the most
reprehensible of motives. He was found guilty and sent to the electric chair.
DEATH AS PUNISHMENT
Electrocution is cruel, painful, and barbarous. Enough said. On the death penalty generally, I will here venture only a little more. My view for several years has been that capital punishment can be just as a matter of theory in rigorously circumscribed conditions where and when, if ever, there is strong evidence that murders deterred significantly outnumber executions. In our real world I am convinced that the death penalty, for example in the United States and Japan, should be abandoned, and I am not as confident as I once was that there is a real theoretical possibility that it is sometimes just.
Of what crimes was Clyde guilty because of his conduct in the boat or the water of that Adirondack lake? For these purposes I am going to look to the current penal law of New York, rather than the statutes of a hundred years ago. It would not make much difference.
Although the jury had no reason to know this, as readers with privileged access to Clyde's mind, we believe that Clyde did not intend to kill Roberta at the time the camera hit her face. The capsizing of the boat took Clyde by surprise. At least that is what we think. However, Dreiser's take on intent was subtler than that of the criminal law. As the law has it one either intends an act or one does not, and the one is really one – a unified self. The Clyde that Dreiser gives us is not nearly so unified as the philosophers, with special mention of Descartes, have traditionally taught. Clyde was for a long time of two minds. We might say that at least on several occasions he really intended to kill Roberta, and really did not. This is not a possibility recognized in law or in the western philosophical tradition, but I think Dreiser is right that people actually can and often do have contradictory intentions as well as contradictory beliefs.
Still, were I
a prosecutor knowing what the American Tragedy reader knows, I would not
seriously consider charging intentional murder. (In this case an intentional
killing would be murder in the second degree (NY)PL 125.25; not Aggravated
Murder or Murder in the First Degree because the victim was not a police
officer, prison guard, firefighter, child; there was no torture, bomb,
terroristic motivation, or other such statutorily recognized aggravations.)
Clyde still had a desire that Roberta die when he pushed the camera into her
face, but that appears not to have been what he then intended, at least, his
non-intent well outweighed any intent.
MANSLAUGHTER
For similar
reasons I would not charge manslaughter in the first degree (PL 125.10),
because, even if we concluded that his action with the camera caused the
capsizing and so her death, Clyde did not have the required intent to cause
Roberta “serious physical injury.”
Manslaughter in the Second Degree (PL 125.15) is the causing of death recklessly. This is a somewhat closer question. It was a small rowboat, not very beamy, and therefore somewhat liable to upset. Roberta's lurching towards him created some risk. Should Clyde have recognized the danger and responded very differently than to push a camera in her face? Did this make him a reckless causer of death? Maybe. I would want to see the boat. However, I doubt that Clyde had enough time to appreciate the risks Roberta's action created or his would increase. So reckless manslaughter for Clyde's conduct in the boat would be a stretch.
CRIMINALLY NEGLIGENT HOMICIDE
Criminally
Negligent Homicide (PL 125.10), however, would be a good charge. Clyde's action
insufficiently regarded boat balance given Roberta's weight shift. Strictly in terms of boat safety, a
reasonable person would not have done what he did. However, looking to the
story line, as a lowest degree felony, Criminally Negligent Homicide would not
have been nearly enough for DA Mason, Clyde's politically ambitious prosecutor.
ASSAULT
Assault in the Third Degree is a misdemeanor in NY. For this reason Mason would never have considered charging it for fear that the jury might compromise down to it if deadlocked on more serious charges. The judge could, at his own discretion, have given it to the jury as a lesser included of murder or felony assault.
PL 120.00(1) requires intent to cause physical injury. You might think this is easily made out by forcefully shoving a camera into someone's face. The New York threshold for “physical injury,” however, is pretty high, requiring “impairment of one’s physical condition or substantial pain.” (PL 10(9)) There is not, in the text, evidence that would permit us to conclude, beyond a reasonable doubt, the existence of such an intent. We know only of an angry desire to fend Roberta off. The reckless and negligent subdivisions of misdemeanor assault we need not reach because, if they were made out, so too would be manslaughter or negligent homicide felonies.
Assault in the Second Degree (PL 120.10), a felony, would have been a little more attractive to the prosecution. In its first subdivision this offense requires an intent to cause “serious physical injury,” which is defined as “death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” (PL10 (10)) Clyde had no such intent.
The second subdivision would require us to find that the camera was a “dangerous instrument” which means “under the circumstances in which it is used . . . is readily capable of causing death or other serious physical injury.” (PL 10 (13) Something might be capable of causing serious physical injury even if the person wielding it had no such intent, but it would be hard to argue that a one pound or so camera shoved in the face is at all likely to cause death or loss of function. Disfigurement would be a slightly better prosecutorial contention, but the small marks on Roberta’s face would be eloquent to the contrary. Even if the camera were concluded to be a dangerous instrument, the jury would still have to find an intent to cause physical injury as defined by the Penal Code, which is, as argued above, beyond the evidence.
FAILURE TO AID HOMICIDE
What about convicting Clyde for not coming to Roberta's aid when both were in the water, and not so very far from the overturned boat to which she could have clung had he brought it within reach. We know that Clyde elected not to aid Roberta, though he doubtless knew he could do so with reasonable safety.
You and I would save from immediate death anyone we could save at little risk to ourselves. The stringency of Clyde's duty to Roberta was increased by their history together and by the trust she had given him in going on this outing he alone had orchestrated. She would never have been in peril of drowning but for Clyde. We all know that Clyde was morally responsible for Roberta's death. (When he swam away, I lost what little remaining sympathy I had for Clyde.)
As obvious and
as compelling is his moral duty to rescue Roberta, his failure to do so does
not support a homicide charge in New York, or probably in any other state,
although it might conceivably violate the new “Good Samaritan” laws of a few
states – laws bearing small penalties and almost never enforced.
ATTEMPTED MURDER
In many states it is enough to commit an attempt if there is the requisite intent plus some a "substantial step in a course of conduct planned to culminate in [the]” commission of the crime” (See Model Penal Code 5.01(1)(c)) A “substantial step” is often understood as an act that makes clear the intent. Clyde's renting the boat and paddling to a spot beyond the seeing or hearing of anyone might well qualify.
In New York, in addition to intent, there must be “conduct which tends to effect the commission of such crime.” This should be read this as conduct that might well be sufficient in propitious circumstances to complete the crime. The courts, however, have sometimes settled for less. Here Clyde had everything in place. He only needed to lean heavily on one of the gunwales. Had a police boat appeared before Clyde had “changed his mind,” and had he subsequently confessed that but for the police showing up he was just about to go to the gunwale, he might well be charged with attempt despite not yet done anything that could have effectuated the crime. Instead of putting his weight on the gunwale, Clyde was sitting in a state of stunned acceptance of failure. Should that have precluded a conviction of attempted murder? If there were an attempt here, by the crucial moment it had been completely abandoned. This should be a good defense as I argued in my post on the Dolores Claiborne case: https://lawrencecrocker.blogspot.com/2014/12/v-behaviorurldefaultvmlo.htm
Regrettably, there are courts and commentators who take the position that a crime once committed can never be uncommitted, and so, if Clyde had done enough to constitute an attempt when he stopped rowing at his selected lonely spot, his subsequent realization that he was not going to try to kill Roberta could be no defense. (Defense counsel might still be able to argue that what Clyde realized was that he had never truly intended to kill Roberta, that he was self-deceived all along. Even a sufficient act is not enough for an attempt if intent is missing.)
You might
wonder at this point if it is even conceivable that someone be guilty both of
attempted murder and of criminally negligent homicide of one and the same
victim. Although I think it is not so in this case, it is certainly possible.
In the common law “lying in wait” was a paradigm sufficient act for attempt
liability. A hired assassin, with high powered rifle in hand, waits concealed
in the forest for his victim go come jogging by on the mountain trail. He is
there a couple of hours. He had been told that the victim's jog was highly variable
as to time, so, a true professional, he continues to wait. He does get a little
bored, however, and decides to shoot at a crow. The shot misses the crow but
hits and kills the unseen intended victim who was jogging at that moment down a
higher switchback of the trail. Defense counsel might try to argue that there
can be no conviction for an attempted murder where the defendant in fact causes
death. The argument would fail.)
POLICE
MISCONDUCT – CRIMINAL PROCEDURE & TRIAL PRACTICE
Should there have been a new trial because of prosecutorial misconduct? Burton Burleigh, an investigator for District Attorney Mason, pulled a couple of strands of hair from Roberta's corpse in the morgue. Going then to the evidence locker he took the camera retrieved from the scene of the crime and drew the hair between the lens and the top of the camera, securing them in place. At trial Burleigh testified that he found the hair upon inspection of the camera. Although Mason, himself, was ignorant of what Burleigh had done and of his perjury, it is still chargeable to the prosecution. This sort of evidence tampering and mendacious testimony is egregious, criminal, and a serious corruption of the trial process.
Had the defense been more alert, they might have noticed that the hair was not held onto the camera in a way likely be caused by a collision between camera and head. They could then, on cross, have produced an identical camera, some hair, and a mannequin head.
Defense:
Mr. Burleigh, please take the camera I have given you and strike the mannequin
so as to lodge at least one strand of hair on the camera as it is on People's
Exhibit N.”
Prosecution:
Objection! This is absurd. The demonstration the defense demands doesn't
remotely approximate the actual circumstances of this case. This dummy head is
wooden and stationary, and this courtroom is not a rowboat.
Defense:
Your honor, the human forehead, where the prosecution has pointed out marks, is
pretty solid, and the witness can strike with the camera here in at least as
many ways as he could in a rowboat. He is also free to have a helper move the
mannequin head anyway he wishes.
Judge:
[To the lawyers] Approach and bring me the admitted camera exhibit please.
Judge:
[At the bench out of the hearing of the jury.] I am not going to permit the
demonstration. Mannequin heads and human heads are pretty different, especially
in the way the hair is attached. I will, however, permit cross of this witness
as to how the hair might have become affixed to the camera by any sort of collision
between camera and head. Mr. Mason did this witness have access to evidence
locker containing this camera.
Prosecutor:
Yes he had access. He took things there and sometimes brought things for me to
look at.
Judge:
Did he ever have access alone to the decedent’s body in the morgue.
Prosecutor:
I don't know.
Judge:
Could he have had such access?
Prosecutor:
I suppose he might well have, but this is all a molehill, your honor.
Judge:
Well, I am going to let the defense explore this molehill at some length
because it looks to me as if there might be more elevation here than you
suggest. After looking at the camera, I am uneasy.
Prosecutor:
Might I confer with the witness?
Judge: I am not going to allow you a private conference with your witness in the middle of his testimony, but we can all adjourn to my chambers with the witness where I would like to ask some questions first. I am going to excuse defense counsel from that part of the conference to avoid giving the defense a preview of what might or might not become the witness's testimony
Judge:
[In chambers, Mason and Burleigh present] Mr. Burleigh I am going to come right
to the point, did you put the hair onto that camera?
Burleigh
(Looks to Mason who looks away.) Do I have to answer that? Can't I say, “Fifth
Amendment”?
Judge:
Yes, you can, but I am going to refer this matter for investigation by an
outside prosecutor. Bailiff, please take Mr. Burleigh back to the witness
stand.
Mr.
Mason, you are in hazardous waters.
Prosecutor:
Judge, I assure you as an officer of the court that I had no knowledge of any
possible wrongdoing by Mr. Burleigh. What if we withdraw the camera as
evidence? You will, of course, give a corrective instruction that the jury is
to disregard that evidence.
Judge:
The camera has been accepted into evidence. I don't think I can remove it from
the evidence list without a signed stipulation from both you and defense
counsel. Even then I'm not sure. And what about the testimony as to the finding
of the camera? Do I strike that too? Do I let defense counsel have another
round of cross to ask the diver who found the camera whether he saw any hair?
What if the defense wants to call you to the stand to ask you whether you saw
hair when you first examined the camera? On the cross we have temporarily
interrupted I am going to give defense counsel great latitude on the hair and
camera issue with this witness. We are likely to hear him take the Fifth in
front of the jury.
Prosecution:
Your honor, I would like to ask for a mistrial.
The prosecutor would be right to ask for the mistrial, legally right because the trial is hopelessly compromised, tactically right because the prosecution would rightly be blamed by the jurors. Were the prosecutor's investigator to invoke the Fifth Amendment in open court, it would have changed the whole tenor of the trial. Jurors do not like defendants who plot against the lives of pregnant girlfriends, but jurors also don't like prosecutors who present fraudulent evidence. They might well punish the prosecution with an acquittal, although in this case, given the whole weight of the evidence against Clyde, a hung jury is the best the defense could reasonably hope for.
If the evidence tampering and perjury had been discovered after trial and appeal while Clyde was on death row, he could have made a habeas corpus petition. In Clyde's case he would not have had the money for the petition, and there was in the 1920s no Innocence Project. Habeas petitions by “jailhouse lawyers” were not as common in the early twentieth century as they became later, Clyde had no contact with inmates not also on death row, and very little of that. Still, supposing Clyde would have been given the means to and could himself have written a first-rate petition to the Appellate Division of the Supreme Court (New York's intermediate appeals court), it would almost certainly have failed. The evidence tampering was egregious but not very material. Clyde admitted hitting Roberta with the camera. Moreover, the weight of all the evidence against Clyde was overwhelming (despite his only being guilty, really, of criminally negligent homicide.)
Clyde should
have gotten fewer than four years, instead he was killed. These things can
happen – and not only in fiction.
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