20 October 2005

I'm no lawyer, but...

Congress-woman Cynthia McKinney wants to know: Since the owners of the nursing home where so many people died are being charged with negligent homicide, should not Michael Chertoff also be so charged?

The answer: that depends on (a) whether she thinks he ought to be charged under federal or (Louisiana) state law; and (b) what the law is in these respective jurisdictions.

Louisiana state law (RS 14.32, amended by Acts 1980, No. 708, §1; Acts 1991, No. 864, §1.) defines negligent homicide as
"the killing of a human being by criminal negligence," and criminal negligence as "exist[ing] when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances" (RS 14.12).


Federal law looks a bit trickier. Federal law (18 U.S.C. sec 1111) defines murder as
"the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree."


Federal law, so far as I can tell, does not provide for "negligent homicide." If she wants to see him charged under federal law, McKinney would probably like to see him charged with murder in the first degree, asserting that the deaths in New Orleans resulted from "a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed." Given the difficulty (I hope) of proving "premeditated design", and given McKinney's specific use of the phrase "negligent homicide" I gather that she would see him charged under Louisiana state law. It seems to me that in order to do that, one would have to show (a) that Chertoff's relation to the deceased is relevantly similar to that of the nursing home owners to those who died in their nursing homes and/or (b) that Chertoff had a duty which he failed to perform, no doubt, by"premeditated design," and which failure resulted in the deaths in New Orleans. (And let's be clear: this duty, it seems to me, must be prescribed by state law, which, I think, does not apply to federal agents. So I guess she'll have to turn back to the U.S. Code.) Demonstrating (a) and/or (b) strikes me as bordering on the impossible.

I have a question for McKinney: Given their closer proximity to the events; given their ostensible mis-managment of federal funds; given their failures to declare a state of emergency in a timely manner--are Mayor Nagin and Governor Blanco also to be charged with negligent homicide?

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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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