Castle: “Head Case”

This week’s Castle introduces the issue of cryonics, i.e. the practice of “preserving” human remains in liquid nitrogen under the theory that identity and personality are simply a product of cellular structures. The thinking is that a person who is “dead” by standard definitions may someday be revivable under the right circumstances.  Although this episode didn’t have much to do with superheroes, we got some questions from readers about it. Spoilers inside.

The basic premise of the episode is that the murder victim had a contract with a cryonics outfit to preserve his bodily remains. This includes a vital signs monitor which notifies the company immediately if the wearer’s heart stops so that they can be frozen as rapidly as possible. So when the murder victim is shot, the company comes by and picks up the body—much to the annoyance of the NYPD.

A few issues here. First, what is the legal status of cryonics and people who are cryogenically preserved? Second, can the police get the body of a person who has been so preserved? There’s also sort of a broader question about settlement and precedent which the writers really deserve credit for invoking. Finally, they also name-check tortious interference, so we’ll take a look at that too.

I. Cryonics

If a person is cryogenically preserved, they’re not dead, right? So… why don’t we run into the really weird stuff that immortality does to legal systems?

The answer is that the legal system does consider them dead. Right now, cryonics are only used once the patient has passed the legal and medical definitions for death. Doing it before that would be considered murder. Clinical death is basically the same thing as cardiac arrest, which is reversible in many cases. But if it isn’t reversed, you’re dead, and that’s the end of it. The legal definition of “death” is, in most US jurisdictions anyway, part of the Uniform Determination of Death Act as implemented in the several states. This includes both clinical death and the chunky salsa rule, i.e. if your brain is gone, you’re dead, whatever else may be going on with you. If a person is cryogenically preserved who is not legally dead, the result is murder.

So how is this legal at all? Because cryonics advocates distinguish between clinical/legal death and information-theoretic death, i.e. the theory that the structural state of your brain is you, and as long as it’s preserved, resuscitation is theoretically possible. Of course, no one knows how to do this, and the assumption is basically that we’ll figure it out someday. It’s also assumed that there’s no such thing as a metaphysical soul, or, at the least, that cryogenics doesn’t interfere with that in any way. Regardless, the legal system does not recognize the information-theoretic definition of death, so for all intents and purposes, a cryogenically-preserved person is a corpse, not a patient or a citizen.

II. Cryogenically-Preserved Victims and the Fourth Amendment

The question then becomes whether the cops can get a cryogenically preserved corpse as evidence. The episode shows the cryogenics company promising to fight the cops over this issue. The basic theory is that because the cryogenic facility is private property, the cops can’t just waltz in there and start taking stuff without permission. In the absence of such permission, a warrant is required.  That’s the theory, anyway.  The reality is quite different.

In fact, neither a warrant nor a court order are required in order for the victim’s body (head included) to be taken by the police and autopsied.  From N.Y. Pub. Health Law § 4210:

“Whenever any district attorney in this state, in the discharge of his official duties, shall deem it necessary, he may exhume, take possession of, and remove the body of a deceased person, or any portion thereof, and submit the same to a proper physical or chemical examination, or analysis, to ascertain the cause of death. … Said district attorney shall have power to direct any police officer … to assist him in exhuming, removing, obtaining possession of and examining physically or chemically such dead body or any portion thereof.”

Further:

“The right to dissect the body of a deceased person exists … When the dissection is performed by or at the direction of … a medical examiner of a county … and is performed in the course of an investigation within the jurisdiction of the officer performing or directing the dissection, or is performed upon the written request of a district attorney, or sheriff, or the chief of a police department of a city or county, or the superintendent of state police.”

Ordinarily an autopsy can be objected to by the surviving family or by the deceased person (via an ID card, for example) on the basis of religious belief, but there is an exception for criminal investigations.  N.Y. Pub. Health Law § 4210-c.  Here, it would be a bit of a stretch to say that the victim’s faith in cryonics was a religious belief.  The episode also said that the case law in this area was “murky,” but we couldn’t find any case law in New York (or any other U.S. jurisdiction for that matter) on autopsies and cryogenics.  In short: getting ahold of the body would likely not be problematic at all.

As for a hypothetical Fourth Amendment argument: we think this is a non-starter.  There’s no case law on it that we could find, but we think inspecting a dead body to determine cause of death in a murder investigation is a reasonable search and seizure and therefore outside the scope of the Fourth Amendment, which only protects against unreasonable searches and seizures.

III. Precedent and Settlement

So if push came to shove and a lawsuit were filed, the courts would be likely to rule against the cryonics people, therefore creating really bad precedent if not completely undermining the very concept. Which the writers actually pointed out! And they’re totally right!

Say you’ve got a potentially new area of law. Like cryonics. At some point, you want the courts to recognize that what you’re doing is basically okay. But there’s always the risk that they’ll rule against you, and it’s pretty widely recognized that most courts will usually do whatever they need to do to get the result that they think is best for the facts before them. Hence the “Hard facts make bad law” proverb. In general, if you want to make new law on a point, it’s a good idea to wait until the facts are most favorable to your side before filing that lawsuit.

Opposing the NYPD’s investigation into a murder? Not a very sympathetic position, especially if you’re the one with the body. But something else? Say, trying to get extra damages or particular causes of action against a driver who damages a cryonics facility? Much more favorable.

IV. Tortious interference

The cryonics lawyer mentions the issue of tortious interference as a main reason why the NYPD should keep its nose out of this one. The doctrine basically says that if A causes B to breach a contract, either party to that contract can sue A for tortious interference. The example here would be the NYPD causing the cryonics company to breach its contract with the victim. Tortious interference is a real thing, and formed a major plot point in the 1999 film The Insider.

There is a slight problem here though. Government action is generally considered a force majeure in contract law. We talked about force majeure in our discussion of Thor this spring. Basically, if a circumstance comes along that was not contemplated by either party and is neither party’s fault, but which makes it impossible for one party to perform, the contract is basically canceled. In particular, compliance with a warrant or subpoena, i.e. the order of a court, is usually specifically noted as an exception to the rest of the terms of the contract, e.g. “We’ll never give out your information unless a court makes us, in which case, well, tough for you.”

Exactly how that works is going to be specified by the terms of the contract, and a cryonics contract should have an interesting force majeure clause indeed. But it’s a little unbelievable for a company savvy enough to want to fight the NYPD on producing the body not to have thought about this one ahead of time, if only because they’d want to cover themselves for liability to their customers’ families.

V. Conclusion

So far we’ve got two really interesting episodes of Castle in season four, which is quite promising. Even if the writers in this one didn’t quite handle things correctly (in the real world the legal issues are straightforwardly in the NYPD’s favor), they were aware of all of the relevant issues and even managed to get the right outcome!

26 Responses to Castle: “Head Case”

  1. While I find your analysis thoughtful and informative, I just want to give a token protest to covering a non-comic book source. Come on. There is so much material in comic books to get through. If you don’t think any new issues have anything worth covering, let’s flip through some backissues.

    • Look for another post on Ultimate Comics X-Men tomorrow. There are a couple of more legal issues to discuss there.

      • Tales of the Boojum

        As long as there’s a request for more comic book material, I just reread a great story in the Astro City “Local Heroes” collection about an attorney who finds himself defending a mobster who murdered a woman in the middle of a restaurant full of witnesses. Said mobster want the jury to come back with an acquittal or else. What follows is an exercise in establishing reasonable doubt in a city where unreasonable things are commonplace. I’d love to hear your take on the story.

    • I’m gonna go ahead and disagree. While I wouldn’t want to see comics fall by the wayside, I’m in favor of these occasional non-comic entertainment sources as long as they make for interesting posts.

  2. Melanie Koleini

    What about organ donation? Say a victim is raped then strangled or drowned. Emergency workers get the hart going again but the victim is declared brain dead. The victim’s family wants to donate the victim’s organs but the police want an autopsy. Who wins?

    Would a precedent set in that case apply to cryonics? After all, in both causes the wishes of the family and/or victim conflict with the interest of the state.

    • Based on the cited laws about the right to perform autopsies, I’d say that organ donation is no protection to an autopsy. As for being brain dead, if the individual was left on support systems that artificially preserved the body even after the brain was gone there might be some legal case but in the one you suggest the family wants to donate organs and so would probably take the victim off life support anyway.

      On another note an autopsy probably wouldn’t be necessary if they just wanted to check for samples of the rapist’s skin and sperm. After all it’s usually rather obvious how a drowned or strangled person died.

      • Ryan Davidson

        Yeah…. no. It isn’t. First of all, the case of a man who appeared to have drowned but who had actually been several days before hitting the water was one of the biggest intelligence coups in WWII.

        But second, victims of crime aren’t really candidates for organ donation. Organ donors are, almost exclusively, people who die in the hospital, where they can be kept on life support after their death to keep the organs fresh. I dare say that the majority of murder victims are dead before they’re found, let alone before they reach the hospital. So there’s a logistical problem which makes this set of facts not all that significant.

        Lastly, organ donation isn’t really a right. For anyone. There’s no right to have one’s organs donated, and no right to receive a donated organ. The fact that the family wants the organs to be donated really doesn’t have any more binding effect on the police than anything else they might want to do with the body.

      • Melanie Koleini

        In my scenario the person did technically die in a hospital. That is where he was declared brain dead. A lot a murder victims (I’ve no clue of exact numbers) do make it to a hospital before dying of injuries. If a gunshot victim dies during surgery, the person who shot him can still be charged with murder.

        And even if organ donation isn’t a right, it sure would make a compelling court case. The family finds out the police want an autopsy before life-support is removed so they get a lawyer to file an injunction to preserve their access to the body for organ donation. The dead person can be left on life-support while the court makes a decision. If this has never happened, it is only because no DA is stupid enough to push the issue. Even if the DA won the case, he’d be voted out of office at the next election.

    • According to the Uniform Anatomical Gift Act of 2006 (rev 2008), the ME or coroner makes the determination of whether or not the organs are necessary for autopsy and proof-of-crime. In most instances, it’s possible for organs, tissues, and corneas to be donated in the scenario that you outline; if there was any concern, the ME/coroner has the ability to document the organs, tissue, or eyes being donated (and would likely do so anyhow if there was question of a homicide).

  3. > Here, it would be a bit of a stretch to say that the victim’s faith in cryonics was a religious belief. The episode also said that the case law in this area was “murky,” but we couldn’t find any case law in New York (or any other U.S. jurisdiction for that matter) on autopsies and cryogenics. In short: getting ahold of the body would likely not be problematic at all.

    The writers did a better job of finding it than you, alluding to the Dora Kent case with Alcor, the rough model for Passageways: https://secure.wikimedia.org/wikipedia/en/wiki/Dora_Kent

    At least, one of those arrested in the Kent case, Mike Darwin, is convinced that that is what is being referred to (http://chronopause.com/index.php/2011/10/06/cryonics-%e2%80%9ccastle%e2%80%9d/) :

    > Beckett and crew phone the District Attorney for a warrant to seize the body, only to be told that, “the case law is murky on the issue of whether or not a coroner can autopsy a cryonics patient.” Incredible! now the writers really have my attention, because the Dora Kent case was not a “recorded” case that definitively established precedent; the California Appellate Court let the lower (Superior) court’s ruling stand, but declined to grant the case “precedent setting status.”[1] Maybe these guys really did do their homework after all!

    • A few things: First, these California cases have little bearing on New York law. Second, the Dora Kent case never resulted in any case law regarding whether a cryogenically preserved body can be removed for autopsy, and the cases cited by that blog don’t actually touch on that issue. Alcor v. Mitchell is about whether Alcor could operate as a business at all; the decision doesn’t mention the Kent case at all. Donaldson v. Lungren was about a hypothetical assisted suicide for a cryogenics client, and the result was unsurprising: it’s illegal, terminal disease or not.

      The case law is not murky because a) there is no case law and b) the statutes in New York are extremely clear.

  4. In an early episode of Law and Order: Criminal Intent, they have a murder victim who wanted to be cryogenically preserved and the victim’s family actually gets a court order stopping the autopsy. Of course, in that case there was a bit of a “victim was wealthy and the daughter of a senator so we pulled strings” aspect to it, but I take it in real life one couldn’t do that?

    • As I read the New York statutes (L&O:CI is set in NYC), no, I don’t think so. If the victim had a religious objection to an autopsy then there’s a possibility that an autopsy could be prevented, but even that is not an absolute bar. Although cryogenics is, in some sense, predicated on faith, I don’t think the courts would consider it a religious belief.

  5. I’ll keep this brief because you don’t seem to want to reply to my posts. :)

    Anyway, how realistic is this Castle series? A fiction writer sticks his nose into cases for the police. It may be better written but the premise is the same as Murder She Wrote. I watched one episode from the first season.

    • Castle focuses almost entirely on the “Law” side of the “Law & Order” format (i.e. it’s a police procedural but not a courtroom drama), so in general there’s less room for inaccuracy from our point of view. That is, the criminal procedure aspects (e.g. getting warrants, conducting interrogations, etc) are mostly fine, but we aren’t really fit to say if the police procedure aspects are accurate (e.g. the police databases they use).

      As far as the premise goes: there’s nothing inherently impossible about it. If the police want to consult a writer that’s probably fine, though it’s unlikely that Castle’s theories would sustain a warrant request, for example. As he’s working closely with the police, wears a police-issued armored vest, etc, he almost certainly qualifies as a state actor and so couldn’t do anything the police can’t do (e.g. illegally search a suspect’s house). The show has been pretty good about not having Castle do that kind of thing, though, as far as I can recall.

      [And if you're referring to the question about what to do in the aftermath of a fake President, I've taken a stab at it.]

      • “Castle focuses almost entirely on the “Law” side of the “Law & Order” format (i.e. it’s a police procedural but not a courtroom drama),”

        Erm, I think you’ve got that backwards. Police enforce “order” — lawyers deal with “law”.

        I know you could argue that police deal with the law, which is true, but if you’ve got to separate the two concepts then the police are the active side of the law — which is order.

      • Whoops! Yes, you are completely correct. I was thinking about the order that the show goes in (police first then the courtroom) rather than the meaning of the words.

      • Martin Phipps

        Okay. By focusing on the police procedurial aspect they avoid the major pitfall of the concept, namely that anyone involved in an investigation (I presume) could be asked to appear in court. Normally the police would keep any non-experts as far away from a crime scene as possible as, I imagine, a defense attorney would have a field day with him. (He’s not a trained police man. He’s a fiction writer. Boy oh boy. Imagine how he could play that up to a jury.)

        This issue came up on an episode of CSI. A boy wandered into a crime scene and took something that had already been labeled as evidence. The CSIs tracked the kid down and told him that he not only should not have taken anything from the crime scene as a souvenir but that he would now have to testify in court as to what he did or else the judge would no longer accept the item into evidence. The kid absolutely flipped out. It was not good. I guess the yellow tape is there for a reason.

  6. A really interesting read related to this is “Cryoburn” by Lois McMaster Bujold. In that book, there’s a nation where cryogenically freezing individuals is commonplace, even before they would have died normally, and the frozen are considered to be citizens, with voting rights intact. The votes are usually cast by a corporate proxy; as part of the deal to get preserved, you usually have to sign your vote over to the company that freezes and preserves you.

    Of course, in that ‘verse, reviving the frozen dead is, if not trivial, at least easy enough that you can prep a recently-dead soldier during combat and still have them come back with most, if not all, of their faculties.

  7. Tales of the Boojum

    I’ve often wondered about cryonics: Would future doctors be ethically or legally obligated to treat a corpsicle if the technology was available to revive him? Also, what’s the corpsicle’s status in the meantime? If he’s dead, presumably, he has no rights, but he’s entered into a contract with the cryonics company with the expectation that being dead is only a temporary condition. Would he be an asset of the cryonics company while on ice? If so, does the prohibition against slavery apply? What if the cryonics company goes under? The poor guy might have to be liquidated. Literally.

  8. Pingback: Dollhouse | Law and the Multiverse

  9. One issue (or possibly several) that you didn’t address is what happens if the wife is revived.

    Say it’s 100 years later and they are able to revive her. Would the murder charge still stand?

    In the case of where the husband is not yet revived, could she argue that her revival shows that her belief in the technology was reasonable and that it wasn’t really murder?

    In the case where the husband is revived, would it then change to attempted murder? He seemed to want to just die naturally – so he might push for some charge since he a) now lacks a body and b) wasn’t able to do his research.

    Lastly, what happens to end-of-life benefits if a person cryogenically stored and then revived? Insurance, social security, pensions?

    • There is no statute of limitations on murder, so if a person murders another, then dies and is later revived, the killer could still be charged with murder.

      I don’t think her own revival would be good evidence of a reasonable belief. Her 100 years-later revival (in your hypothetical) is so remote and so dependent on radical, unprecedented advances in medical science that I don’t think it would be considered reasonable to believe that the company would also be able to revive her husband at some later date.

      The definition of death used pretty much everywhere in the US includes the notion that it is irreversible. So if “death” could be reversed, then it wouldn’t really be death, and thus arguably it would no longer be murder (but would still be attempted murder).

      There’s very little precedent for people “coming back from the dead,” but there is at least one case in which a person faked his own death and then resurfaced later. In that case the beneficiaries were allowed to keep the insurance money because they weren’t part of the fraud. In a case without fraud of any kind, presumably the various beneficiaries would be allowed to keep what they had received so far, but a continuing survivor benefit would cease because the person isn’t dead anymore.

      • You are very right about lack of fraud usually allowing the beneficiaries to keep paymement. Assuming no fraud, 10 USC $1511 not only allows the beneficiaries of service men and women presumed KIA who are subsequently found to keep benefit payments they may have received even if not yet spent, but the servicement retroactively receive back pay.

  10. Excellent. So if you’re in on the fraud you could lose benefits. Probably a good idea to avoid paying for your cryonic storage with life insurance money.

    If the cryonics company got to a point where it was able to revive victims of cyanide poisoning, could the police compel them to revive her so she could stand trial for murder? I suppose that would be kind of a mixed bag as courts have been able to compel certain medical procedures in criminal cases.

    The first time a cryonics company revives someone I suspect a raft of legal issues is going to crop up. Though I have pretty high doubts that will ever happen.

    Thanks. Interesting issues.

    • > Probably a good idea to avoid paying for your cryonic storage with life insurance money.

      The cryonics charity in question is not you, however, and they’re the ones you pay the life-insurance benefits to. And there’s probably some sort of estoppel protecting the charity too.

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