Taking The Profit Out of Crazy

The idea that the Son of Sam killer, David Berkowitz, could possibly tell his story and reap a fortune from its publication was more than anyone could stand, and so the Son of Sam law(s) was born.  The original version, New York Executive Law §632-a, was enacted to make sure that no person convicted of a crime could receive the profits that might otherwise by enjoyed as a result of it.

That it only applied to those “convicted” made perfect sense at the time it was drafted, as it seemed to cover the situation.  But people, being who we are, always manage to find a way to screw up the best laid plans.  This time, it’s not just people, but a crazy person. The irony is that Berkowitz, the Son of Sam, was as loony as could be, provided you don’t think taking instructions to kill from a dog is normal. And if you do, please explain that to the nearest police officer.

But as the Washington Post notes, there may be a disturbing loophole:

But legal experts say the case of a Long Island mother who drowned her three children in a bathtub and is now seeking to cash in could succeed because of a loophole. Since Leatrice Brewer was never convicted — instead found not guilty by reason of mental disease — legal experts say she could make a plausible case to receive some of her children’s $350,000 estate.

Brewer, 33, slashed her daughter’s throat before drowning her and two younger brothers in 2008, believing she was saving them from the deadly effects of voodoo. Hours after the killings, she survived two suicide attempts — swallowing a concoction of home cleaning fluids and later jumping out a second-story window.

The problem is that Brewer wasn’t convicted of murdering her children, but rather found not responsible by reason of mental disease or defect.  Given the facts, it’s a perfectly appropriate outcome, as she was totally insane.  And yet, that may remove her from the strictures of the Son of Sam Law.

The original New York law was held unconstitutional in 1991, held to be overbroad in that it would have prohibited Thoreau from profiting from Civil Disobedience and served to chill works about matters of public importance for fear of tying them up in litigation.  New York has tried to tweak the law several times since then, as well as address the “not guilty by insanity” problem.

New York revised its law in 1992, and the state Senate has passed legislation seven times since 2006 — most recently in July, albeit with little fanfare — to try to address the issue of people held not responsible because of mental disease, said the bill’s sponsor, Sen. John Flanagan. Companion legislation has been proposed in the state Assembly but has yet to gain any traction. Assemblyman Charles Lavine said he was optimistic the notoriety of the Brewer case could spark passage.

While there is no one contending that Brewer would actually receive any monies as a result of killing her children, and it appears that if she did, it would go toward the lien against her for treatment for her mental illness, that doesn’t address her claim toward a share of the proceeds of a settlement with Nassau County for the failure of social services to protect the children from their crazy mother.

Maebell Mickens, Brewer’s grandmother, disputed that the woman’s motivation is money, though she did not offer an alternative explanation.

“She ain’t never wanted no money,” Mickens told The Associated Press in a brief telephone interview.

And yet, Brewer has her hand out and, given the state of the law, may well be due her cut.  The lawyers for the father of the children, who brought suit, and a lawyer appointed to represent the interests of any unknown heirs, are not amused.

“As a human being, I am outraged and disgusted by this,” said attorney Thomas Foley, who represents the father of the two slain boys. “As an attorney, I have some level of understanding of why we have to go through this charade, but it is difficult to forget we are here because of the actions of a crazy person who killed her kids.”

Kenneth Weinstein, a court-appointed attorney representing any possible unknown heirs who may surface, was just as blunt: “It would stand the law on its ear if she were to receive any proceeds from her own heinous, felonious conduct.”

It would seem that all of us, as human beings, would find this outrageous, if not disgusting. But those aren’t the qualifications for legal.  As of now, the New York Son of Sam law does not appear to preclude Brewer from receiving her share, and as Chuck Lavine (for those who aren’t familiar, Chuck is now a New York Assemblyman, but was a federal criminal defense lawyer when he had to work for a living) says, perhaps this will get the New York State Lege off its butt on the subject.

And yet, as strong as the visceral desire to prevent a person who committed horrible conduct from profiting, questions remain. What, for example, if a crazy killer left young children behind, but no other family.  Would we feel similarly outraged for the profit of telling the story to go toward to the children?  And would society benefit from stories untold because of laws like this?

One of the problems with curing a legal problem that’s staring us in the face is considering how a law plays out, whether merely under minor variations or at its extreme.  As much as we may agree that many, if not most, scenarios support the public desire for a prohibition, that doesn’t mean that it will cover every situation, or that it won’t produce collateral problems that are themselves serious and disturbing.

This is why crafting law is such a difficult process, and why interpreting them under an ever-changing set of facts can be so infuriating.