A family-unfriendly Aesop

By skepticlawyer

Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty. Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition.

Whilst she was in the service station a man drove off in her car. Police wound back the service station’s closed-circuit TV camera, saw what appeared to be a heavy set Pacific Islander with a blonde-streaked Afro entering her car. “Don’t panic”, a police constable advised the mother, “as soon as he sees your little boy in the back he will abandon the car.” He did; police arrived at the railway station before the car thief did and arrested him after a struggle when he vaulted over the station barrier.

In the police truck on the way to the police station: “Where did you leave the Hyundai?” Denial instead of dissimulation: “It wasn’t me.” It was — property stolen from the car was found in his pockets. In the detectives’ office: “Its been twenty minutes since you took the car — little tin box like that car — It will heat up like an oven under this sun. Another twenty minutes and the child’s dead or brain damaged. Where did you dump the car?” Again: “It wasn’t me.”

Appeals to decency, to reason, to self-interest: “Its not too late; tell us where you left the car and you will only be charged with Take-and-Use. That’s just a six month extension of your recognizance.” Threats: “If the child dies I will charge you with Manslaughter!” Sneering, defiant and belligerent; he made no secret of his contempt for the police. Part-way through his umpteenth, “It wasn’t me”, a questioner clipped him across the ear as if he were a child, an insult calculated to bring the Islander to his feet to fight, there a body-punch elicited a roar of pain, but he fought back until he lapsed into semi-consciousness under a rain of blows. He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car.

The police officers’ statements in the prosecution brief made no mention of the beating; the location of the stolen vehicle and the infant inside it was portrayed as having been volunteered by the defendant. The defendant’s counsel availed himself of this falsehood in his plea in mitigation. When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration salts in the casualty ward but no long-time prognosis on brain damage.

(Case Study provided by John Blackler, a former New South Wales police officer).

Discuss.

21 Comments

  1. Peter Patton
    Posted April 28, 2010 at 7:04 am | Permalink

    Correct me if I am wrong, but aren’t police interviews video-recorded? Either way, as much as my sense of ‘justice’ sides with the police, as a judge, I would probably feel obliged to declare the confession inadmissible, and to charge the police with bashing up an islander with dyed-blonde hair.

  2. Peter Patton
    Posted April 28, 2010 at 7:05 am | Permalink

    But perhaps give them a suspended sentence because of the Islander’s provocation.

  3. MikeM
    Posted April 28, 2010 at 9:19 am | Permalink

    A feature that distinguishes this case from the usual ones involving violence and perhaps even torture to extract a confession is that the police had both video evidence and that of belongings from the car in the man’s pocket to assure that they had the right person.

    Legal academic Alan Dershowitz has argued that there are certain very limited circumstances in which torture is permissible, but that the decision to do so in a particular case must be taken at a senior executive level: in the current case that might be a Victorian Supreme Court Judge, or a deputy Commissioner of Police who would issue a “violence warrant”.

    Decision revolves around balance of ethical rights: that of the prisoner to not be bashed; and that of the child to be rescued alive. There needs to be, as there was in this case, adequate evidence that these rights actually are in conflict: had a random man been arrested by mistake who actually had nothing to do with stealing the car, his rights would certainly not have conflicted with those of the child and there would have been no case to authorise bashing him.

    The full facts should also have been revealed to the court, but it should not have been left to the police at the coal face to take responsibility. The nature of the dilemma needed to be seen for what it was.

  4. Nick Ferrett
    Posted April 28, 2010 at 2:25 pm | Permalink

    Sounds to me as though they didn’t need the confession given that they apprehended him with property from the car in his pockets. As for the police, much as I sympathise with the circumstances, you can’t allow torture at the discretion of a foot soldier. You just can’t. For every case in which they get it right, there will be plenty where they don’t. There’s also likely to be a creeping expansion of the cases in which violence is thought justifiable.

    It is also worth observing that the police who beat the islander no doubt knew what they were risking by giving him a touch up. They took the risk. That may sound harsh, but that was the sacrifice they were willing to make to save the little boy. Sacrifice isn’t sacrifice if you don’t have to pay when the time comes.

  5. Patrick
    Posted April 28, 2010 at 4:19 pm | Permalink

    As has been pointed out, I would not admit the confession but would allow the stolen property.

    I would also allow any DNA from the car since the car was going to be found.

    No-one has yet mentioned the culpability of the mother. Leaving the kids in the car is one thing, leaving the keys in the ignition is another, all of the above at a petrol station ….

  6. Posted April 28, 2010 at 5:53 pm | Permalink

    The police in question had no other choice. They would not be able to live with themselves if the boy had died.

    Charge ’em all you like. A jury that included me, or any sane citizen, would find “not guilty”.

  7. Patrick
    Posted April 28, 2010 at 6:34 pm | Permalink

    Well, at the least it would be a hung jury. I am not so sure that you can confidently say more than that.

  8. Movius
    Posted April 28, 2010 at 6:42 pm | Permalink

    Surely a simple, “We have video of you stealing the car,” would usually suffice.

    Whereas administering a severe beating, deserved though it may be, could conceivably kill or incapacitate the only individual with knowledge of the infant’s location.

  9. denuto
    Posted April 28, 2010 at 8:35 pm | Permalink

    Two thoughts:
    1. Today beating a prisoner is tolerated because there is a “good reason”. What reason will allow it to be tolerated next time?
    2. A story like this harks back to an era when common sense had a place in everyday life, when we were not over-regulated, not under cctv surveillance all the time and not every thing we did was open to review by some statutory review authority. Not every change is for the better!

  10. Gib
    Posted April 28, 2010 at 8:49 pm | Permalink

    I think that what the cops did was morally correct. However, it was illegal and they should be punished.

    It was up to the cops to decide under those circumstances whether their punishment was worth the result of saving a kid’s life. They thought it was. I agree.

  11. Patrick
    Posted April 29, 2010 at 4:31 am | Permalink

    Denuto, isn’t your first thought the question of the post?

  12. Posted April 29, 2010 at 5:10 am | Permalink

    Patrick, you’ve got it in one. I will respond in detail once I have a few more comments from regulars derived from the issues this post raises. I’m doing it in part because I’ve used this as a basis for a torture scene in the novel I’ve just finished, and I want to catch the logic of different perspectives on it. We have a lot of smart commenters on this blog, which is why I’ve thrown the floor open in this way.

    So keep ’em coming!

  13. CBM
    Posted April 29, 2010 at 8:09 am | Permalink

    The most relevant point is the impending death or permanent damage to the kid, despite the mother’s role in leaving the keys in the car.

    The second most relevant point is the criminal’s refusal to divulge the car’s location in light of the the first point – the kid’s impending demise.

    The beating was justifiable in the context it was given, and the context justifies the cops not being charged, or getting no conviction or a suspended sentence.

    If the kid had died, 6 monthly public floggings would be justified.

  14. denuto
    Posted April 29, 2010 at 8:54 am | Permalink

    Patrick, I guess that all my first tought amounts to is posing the question that I saw as arising when I was asked to “discuss” (takes me back to school really). I don’t see that we can “answer” but we can “discuss” the case study. There is no correct answer to such a scenario. What I see is a situation where the police have flirted with a dangerous manoeuvre at the top of a steep and slippery slope and having pulled off the manoeuvre they attempt to cover their tracks. It raises this perennial question: If the Police enforce the law and require everyone to play according to the rules, are they entitled EVER to depart from those same rules.

    To me, it’s not a question of Police risking a punishment, and I don’t imagine that the police would approach the situation and make such a rational analysis befire they act. I see it as an abuse of power by the police, and I feel that there is some confirmation of this view in the cynical way they deal with the situation in charging the offender. They go a bit easy on him to cover up their own wrongdoing. We should expect (and receive) better from our police. I don’t envy their job, but I do expect them to do it to the best of their ability.

  15. ken n
    Posted April 29, 2010 at 12:02 pm | Permalink

    I just wish you wouldn’t ask these difficult questions.

  16. Posted April 29, 2010 at 1:38 pm | Permalink

    CBM #14 Hammer meet nail!

    6 monthly public floggings were (I hope) for the criminal’s refusal to divulge location of the car.

    In event of the child’s death in that manner, I’m inclined to see it as kidnapping, with the kidnapper having locked his victim in a hot car and so caused the death.

    Penalty for kidnapper of a child who causes a kidnapped child’s death in such manner : As severe as the law will allow.
    Preferably change the law to: Hanging by the neck until dead.

  17. denuto
    Posted April 29, 2010 at 7:56 pm | Permalink

    Hey Steve, if you get called up for jury duty please let us know.

  18. Posted April 30, 2010 at 3:06 am | Permalink

    Thanks everyone for your thoughtful comments, and apologies for treating you like one of my Jurisprudence students 🙂

    I chose this scenario because the ‘ticking time bomb’ scenario beloved of shows like 24 is dramatic but not all that common; something like the above is far closer to many people’s everyday experience, particularly for those lawyers who read this blog and deal with the police routinely.

    A few things fall out of a lot of the torture research done by the likes of Dershowitz, Waldron and Ignatieff, most of which people here have raised.

    1. There is such a thing as ‘good’ torture (it works) and ‘bad’ torture (it doesn’t). Pretending that torture never works or works only rarely is a dangerous gambit for those of us opposed to torture, for the simple reason that it probably isn’t true. This little detail is the ‘family-unfriendly Aesop’ I alluded to in the title.

    2. Torture is an assault on autonomy, a core component of liberalism. Any institutionalised attacks on autonomy in a liberal state are likely to be destructive of other aspects of liberalism. Social institutions, including legal institutions and military, police, and correctional organisations, have both a massive collective inertia and a massive collective momentum by virtue of the participation in them of many agents over a long time who: (a) pursue the same goals; (b) occupy the same roles and, therefore, perform the same tasks and follow the same rules and procedures, and; (c) share the same culture. Accordingly, social institutions and their component organisations are like very large ocean liners that cannot slow down, speed up, or change direction very easily. Introduce torture into these bodies, and you’ll struggle to get rid of it.

    3. A degree of moral docility is a feature of individuals housed in, and materially dependent upon, large, hierarchical, bureaucratic organisations with strong, relatively homogenous cultures; (1) the roles of soldier, police officer, and prison warder necessarily involve the routine use of coercive, and even deadly, force against dangerous criminals, enemy soldiers, or terrorists, and therefore undertaking these roles inevitably results in a degree of moral de-sensitisation and a sense of moral ambiguity when it comes to torturing criminals and/or terrorists; (2) torture is an exercise of enormous power, and power is deeply seductive to many people (and much less dangerous than shooting at armed enemy combatants or trying to arrest or subdue violent criminals).

    4. Torture can probably be morally justified in certain situations. Morality, however, is a scalpel, capable of applying to each situation in all its particularity, while law is a broadsword. It is impossible to craft a law to particular, individual circumstances. Indeed, attempts to do so are fraught with danger, and may even undermine the rule of law. There’s a reason why the common law got rid of things like bills of pains and penalties and bills of attainder. For that reason, I don’t think Dershowitz’s solution is feasible.

    4. That still leaves us with situations where torture can be morally justified, even if illegal. Forcing would-be torturers to bear the risk for their actions (as several people suggested) seems to be a partial solution. Okay, so X saved the city from terrorism, and we’re grateful, but X can’t stay in the police, and even though there are mitigating circumstances, X should still stand trial for his crimes.

    In sum, torture can in some extreme emergencies be morally justified, but torture ought never to be legalised or institutionalised.

    Just a few thoughts.

  19. Posted April 30, 2010 at 12:44 pm | Permalink

    So simple, yet complicated.

    Thing is, there is more than laws and rules that govern human systems.

    The police did the right thing. A problem only arises if they bashed someone, and the victim had a chance of crying foul.

    Bashings should be allowed, but also recorded. Externally to the police, so they can’t delete the tape.

    Short term physical pain is better than a prison term, in my estimation. I’d rather get bashed than be wrongly sent to prison for a couple of years (or more).

    In fact, police should be TRAINED on applying force/pain without inducing damage.

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