Robert Tanenbaum - Bad Faith

The room itself reflected Karp’s own minimalist attitude, its walls unadorned, the table and chairs about as basic and worn as the building itself. There wasn’t time to worry about the decor. In fact, Karp had never even noted the putrid green color that coated the walls of the corridors, courtrooms, and offices at 10 °Centre Street until Marlene had commented on them a few years earlier.

All that mattered in that room was the fair and effectual process of dealing with the administration of justice for the victims and perpetrators of an average of four hundred murders, twelve hundred rapes, seventeen thousand felony assaults, eighteen thousand burglaries, nineteen thousand robberies, and thirty-eight thousand grand larcenies-not to mention tens of thousands of “lesser” crimes-inflicted every year upon the citizens of New York County.

The meetings had been a fixture of Garrahy’s administration, and while they’d gone by the wayside during the decline of the office after his death, they had been reinstated when Karp was elected to office years later. Outwardly the purpose of the meetings was for assistant district attorneys to present their pre-indictment cases to the other prosecutors in the room, who would then do their best to dissect and question the authenticity and credibility of the evidence, as well as discuss the expected response and counterattack of the defense. And woe to the ADA who came into that meeting unprepared to answer the questions.

On a larger scale, the meetings were to ensure that the office’s two guiding principles for prosecuting the accused were being followed. Also something Karp had picked up from his mentor Garrahy, the principles required that they be 1,000 percent convinced of the accused’s factual guilt and have the legally admissible evidence to prove it. It was not enough to believe that the defendant was “probably” guilty, nor was it acceptable to go to trial without the evidence to prove the case-no matter how convinced the ADA was of a person’s guilt.

As Karp looked around the table, he noticed Kenny Katz off to his left. The slim, muscular young man with dark curly hair had a troubled look on his face and didn’t appear to be tuned in to what was happening in front of him. With the Ellis trial set to start the next week, he knew that his protege was probably feeling the pressure of being in the driver’s seat of his first high-profile case. He decided it was time they had a private talk.

“Tommy Mack,” Karp said, addressing his Homicide Bureau chief, “take over. I just remembered I had something I wanted to discuss with Mr. Katz. … Kenny, could I see you in my office?”

Once inside Karp’s office, Katz took a seat on the edge of a leather chair beside the front of Karp’s desk. It didn’t take long for the ADA to validate Karp’s assessment of what was bugging him. “You know, you hear a lot about how this is a religious-freedom First Amendment case,” Katz said to his boss, who settled behind his desk. “And then even in the office there’s quite a bit of disagreement about whether reckless manslaughter was the appropriate charge.”

Karp studied the young man for a moment, seeing himself as he’d once looked when he sat in that chair, in front of that desk, confessing his own doubts to the legendary DA Francis Garrahy. It reminded him that one of the most important aspects of his job was training the next generation.

“Look, Kenny, first of all let’s deal with the First Amendment bullshit,” Karp said at last. “Nowhere in the Constitution, including the Bill of Rights, does anyone get immunized against committing murder or child abuse. As Justice Robert Jackson said, the Constitution is not a suicide pact, and it is certainly not a ‘get out of jail free’ card. And as far as our case is concerned, no one is infringing on the defendants’ rights to practice their religion when it comes to their personal decisions. As adults, if they want to put their trust in prayer and eschew modern medicine, even at the risk of their own lives, that is their right. However, there is nothing in law that says that one person’s individual constitutional protection is absolute or trumps the rights of someone else. Or, for that matter, protects someone who commits a crime. For instance, how about the recent example of the leader of that polygamist sect in Arizona? He was charged with sexually assaulting underage girls who he claimed were his wives and said that such a practice fell under religious protections in the Constitution. Do laws against sexual assault, particularly against minors, not apply because someone claims that it’s part of his religion?”

“No, of course not,” Katz said.

“Good, then let’s move on and look at the facts of this case and whether it was charged appropriately,” Karp said. “The way I see it, this is a case of child abuse, plain and simple. And what’s more, such a severe case of child abuse that a ten-year-old boy died as a result. Regardless of the parents’ religious or philosophical beliefs, when they take on the responsibility of bringing a child into this world, they have a duty to provide for that child, including seeking commonly accepted medical help when that child is sick. Talk about rights; that child had the right to count on his parents to protect him and keep him safe, as well as make decisions on his behalf that he was too young to make for himself.”

Karp stood up and looked out the window at the view of the park in Chinatown. “I know you’re well versed in all of this, but I think it helps sometimes to review it, get it clear in your head. I know it does for me. So let’s go over the categories of murder we have in New York.”

He turned back to Katz and held up a finger. “Beginning at the top, there’s ‘intentional murder’-that is to say that the defendant intended to cause the death of the deceased and then in fact caused the death of the deceased. I think we can all agree that the defendants in this case did not intend to cause the death of their son. They knew their son was very sick, but we’ll assume that they truly believed that prayer would cure him.”

“But then doesn’t that get us back to the question of constitutional protections to practice their religion as they saw fit?” Katz asked, warming up to the discussion.

“If that’s the case, then what about Islamic extremists who claim that their actions are sanctioned by God and, in fact, that jihad is their religious duty? Did that give them the constitutional right to murder more than three thousand innocent people on September 11, 2001?”

When Katz didn’t answer, Karp moved on. “The second theory, if you will, of murder in New York is what we call felony murder-a death that occurs during the course of and in furtherance of committing or attempting to commit an underlying felony, such as robbery, rape, or kidnapping. For instance, the wheelman in a robbery; he doesn’t intend for anyone to get killed when he pulls up in front of a liquor store so that his armed accomplice can rob the store. But inside the store, the gun goes off, the store owner drops dead-the wheelman is just as guilty of felony murder as the gunman. In this case, however, there’s no evidence that the Ellises were committing some other felony and in the course of committing that felony, or to cover it up, their son died. So felony murder isn’t appropriate either.”

Karp sat on the edge of his desk. “So that brings us to the theories of ‘reckless’ and ‘negligent’ homicide, and even here you have to add the concept of ‘depraved indifference’ murder. A simple explanation of reckless homicide is that the defendant was aware of the risk that grave physical injury or death might occur due to his actions, but he consciously disregarded the danger and someone died as a result. Depraved indifference has to do with the defendant’s state of mind. For instance, throwing a gasoline bomb into an apartment building at night knowing people are asleep inside is not merely disregarding the danger; it is viciously, wickedly indifferent to the likelihood that your actions will harm or kill other people-depraved. You may not have intended to kill any particular person, or even cared if someone died, so it is not intentional murder, but it is certainly reckless to the degree of depraved indifference.”