Our special sale this week is one of the most thrilling court cases you will ever have a chance to read. Below is the exclusive introduction, written specifically for our edition by Alan Dershowitz:
“When life imitates art in an action movie the result can be lethal. The filming of Steven Spielberg’s movie “Twilight Zone” resulted in the death of three actors—Vic Morrow and two child extras. Cinematography turned to disaster in less than ten seconds when pyrotechnics engulfed a helicopter causing it to crash into the actors. The director of the sequence John Landis—who was standing nearby and was almost himself killed—was indicted for manslaughter. He was also charged with the lesser offense of using underage children without proper supervision.
Shortly before trial he asked me to consult with his defense team on strategic matters and to be available to appeal the case if there were a conviction. I agreed. The tragic deaths of the actors led to a fascinating trial at which the basic issue was who and what caused their deaths.
There was little dispute about the immediate physical causation: the entire disaster was captured on film. The pyrotechnics had caused the helicopter to crash and the crash caused the deaths. But the legal issue was whether John Landis and several of his associates were criminally responsible for creating a dangerous condition that led to the unintended result.
The issue of legal causation is a daunting one that has perplexed generations of scholars and judges. We live in a world of multiple causation and the job of the legal system is to determine whether a given individual or individuals should be held criminally responsible for the result.
The central issue at the Landis trial was whether the accident should have been foreseeable to Landis. If it was foreseeable to a reasonably prudent director that a helicopter, placed in the circumstances in which this one had been placed, might malfunction and crash, then the directorial decision to have the helicopter fly close to the pyrotechnics could satisfy the legal criteria for involuntary manslaughter. But if the crash could not reasonably have been anticipated, then it would have to be regarded as an accident, giving rise, perhaps, to civil liability, but not to a criminal charge. The stakes were high both for Landis and for the film industry.
Fortunately for the defendants, the District Attorney appointed a “lawyer from hell” to prosecute the case. According to the author of this account:
Lea D’ Agostino often displayed a bitterness toward the defendants and their lawyers, sometimes expressed in demeaning sarcasm and other times in anger. Her intense reactions, she told me, were a reflection of her commitment to a prosecutorial cause: “Whenever I get a case involving defendants who I believe have committed dastardly crimes, I become emotionally involved with the victims. In this case, you are not talking about people who are a danger to society being out in the street, although there is that element as far as Landis is concerned.” (page. 257)
At one point, she called Landis a “murderer” in front of reporters and then tried, unsuccessfully, to get the journalists not to print her unprofessional comment. The prosecution over-tried the case, calling far too many witnesses and questioning them at too great length. After many weeks of trial, the jury quickly acquitted all the defendants of all the crimes.
The case against Landis was over but the legal issue raised by the tragic event remains. That issue, stated in its broadest terms is: how should the law deal with possibly dangerous conduct that causes lethal results only in a small percentage of cases? This question comes up in the context of drug dealers who sell to someone, like Phillip Seymour Hoffman, who injected heroin into his veins on many occasions but died this time. Should the drug dealer who happened to sell him the dose that proved fatal be prosecuted for killing him, while others who sold him equally dangerous doses remain on the street endangering other addicts? That is similar to the question of whether to prosecute drivers who endanger but don’t kill pedestrians—at least not yet!
Our traditional approach to the dangers posed by reckless conduct is to wait until someone is killed, rather than going after those who engage in equally reckless and culpable behavior but who fortuitously fail to kill this time. Often the only factor that separates equally culpable drivers is what philosophers oxymoronically call “moral luck.” In the Landis case, it was only “luck” that made the difference between what happened to the actors and what didn’t happen to Landis. All, or none, could have been killed, depending on the fortuity of where the helicopter crashed. But luck should play no role in a just and effective legal system.
The logic behind this roulette wheel of death approach is that by imposing harsh punishment on those few dangerous people who actually kill, the law deters all dangerous people, because no one can be certain that the wheel of misfortune (or in this case the helicopter) will not land on him. But experience shows that this “logic” doesn’t work, because film directors don’t expect to kill or harm their actors.
Clearly the law would buy more deterrent bang for the buck if it prosecuted every reckless person, regardless of whether they happen to kill. This would also provide a more morally consistent approach to people who are equally culpable, whether or not “moral luck” resulted in death or near-miss.
But there would be a cost attached to more vigorous enforcement of reckless action laws against all offenders. Such enforcement would require many more resources than the current approach under which law enforcement responds to highly visible and objectively verifiable outcomes that actually produce death. Under the more “preventive” or “inchoate” approach that punished the merely “dangerous” rather than the actually “harmful” conduct, the police would have more discretion to intervene at an earlier stage. They would have to decide whether the inchoate behavior was as dangerous and culpable as that of the person who did kill. In the Landis case, it is unlikely that Landis could have been successfully prosecuted for having created a dangerous situation before the tragedy.
The most serious cost of zealously enforcing dangerous act prohibitions before anyone is killed is that it enhances the growing power of what has come to be called “the preventive state”—governmental action across the board, ranging from mandatory seatbelt laws to NSA snooping, that compromises privacy for prevention.
Are these costs worth the benefits that might accrue from a more proactive and preventive approach? Perhaps when it comes to dangerous driving, where privacy interests are minimal and safety concerns considerable, the answer is yes. Perhaps also when it comes to other highly public actions, such as making a film. But a balance must always be struck between the need to prevent harms such as the ones caused by the pyrotechnics and helicopter in the Landis case, and the need to protect the privacy of citizens. Following the Landis case, the film industry tried to strike that balance by more zealously enforcing safety rules on the set.“
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