Castle: “Cloudy With a Chance of Murder”

I’m getting up to speed on the latest season of Castle, and there’s a quick pair of issues in episode two which aired back on October 1.  The first issue was brought to our attention by Naomi, who writes:

In [the] episode, a suspect is arrested and immediately calls for his lawyer. While they’re waiting for the lawyer to arrive, Beckett and Castle remain in the interrogation room and ignore the suspect, but openly discuss the case in front of him in a (successful) effort to bait him into saying something incriminating. Legally, is this kosher? If it had turned out that the suspect was guilty of the murder, would his outburst have been admissible in court?

So is this okay? Also, what’s the deal with the suggestion that someone is going to jail for violating environmental regulations? Spoilers inside!

I. The “Functional Equivalent of Interrogation”

So, is what Beckett and Castle do in the interview room okay? Well… kind of. Yes and no. “No” in the sense that it’s almost certainly a violation of police procedure. When the suspect demands his lawyer, the interrogation is supposed to stop. And according to the Supreme Court, “interrogation” includes “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response”, i.e., a course of conduct which “functional equivalent” of interrogation. Rhode Island v. Innis, 446 U.S. 291 (1980). It’s worth pointing out that the dissent adopted a slightly different formulation, i.e., an “interrogation” occurs “whenever police conduct is intended or likely to produce a response from a suspect in custody.” Exactly what difference this makes is not entirely clear, because the majority opinion found that there was no “interrogation” in the case while the dissent, using an only slightly broader definition, would have found that there was an “interrogation.” Regardless, the state of the law is that there is an objective standard in play. If the police engage in a course of conduct which a reasonable person should have known was likely to elicit incriminating information, it’s an interrogation.

Whether or not what Beckett and Castle did constitutes an “interrogation” is thus subject to some interpretation. On one hand, they clearly wanted the guy to talk, and they engaged in conduct which they hoped would make him talk. On the other hand, the guy said that he wasn’t going to say a word until his lawyer arrived, so counsel for the defense would probably argue that regardless of Beckett and Castle’s intent—remember, the standard is an objective standard—there was no reasonable likelihood that he would talk. Of course, the fact that he did seems to give the lie to that argument. But it turns out that this doesn’t really matter.

The “Yes” part of the question is that no actual violation of anyone’s constitutional rights occurred. Why? Because they wound up moving on to another suspect and not charging the guy with anything. We talked about this in a slightly different context when discussing Batman: Noel. Basically, one’s constitutional rights against self incrimination have not been violated unless and until the information is used as the basis for criminal charges. Because they let the guy go, the courts would view this as a “no harm, no foul” situation.

So Beckett and Castle really shouldn’t have done this—and Castle almost certainly counts as a state actor by this late stage in the game—but they’d get away with it this time. But Gates would likely be pissed if she’d found out, because there was no guarantee that this wasn’t their guy, in which case they’d have a potentially huge problem on their hands. This is why this sort of behavior is likely to be against regulations, even if it does sometimes work out in the end.

II. Criminal Sanctions for Environmental Violations

Also, and very briefly, can anyone go to jail for violating EPA regulations? Beckett suggests that the above suspect may have been motivated by a desire to stay out of jail. Turns out that yes, there are criminal sanctions associated with certain environmental regulations. Exactly what the guy was doing and the attendant facts which might move this from a civil to a criminal prosecution aren’t spelled out, but the EPA reports that it charged 249 defendants in 2011. Or, more precisely, it brought its cases to the relevant U.S. Attorney’s Office, which brought charges on the EPA’s behalf. The EPA’s own website says that the Criminal Enforcement Division “assist[s] in the prosecution of criminal conduct that threatens people’s health and the environment.” Simply put,the EPA may investigate environmental violations, but it’s Justice that brings all federal criminal prosecutions (edit: as pointed out in the comments, criminal cases under the UCMJ are also federal cases, and they’re handled by the military). In this way the EPA is similar to the SEC or, heck, to Beckett herself: it may do the legwork of investigating the case and identifying a suspect, but when it comes time to bring criminal charges, the case is turned over to the prosecutor, who takes it from there.

That’s actually a bit of a problem. Things moved way too quickly in the episode. The EPA was only notified about the problems a day or two before the guy plead guilty. This is a process that’s likely to take months. The EPA will need to be convinced that there’s a problem, and that it’s worth trying for criminal sanctions rather than their administrative procedures. Then the EPA would need to convince the U.S. Attorney for the District of New Jersey to take the case. It’s just not possible for all of that to occur in the 24-48 hours that the episode suggests it did. But we’re willing to chalk that one up to artistic license, as TV shows don’t really lend themselves to checking back in next season, “Oh hey, remember that guy we thought was the murderer for about ten minutes? He entered a plea last week.” Better, dramatically, to wrap it all up in a single episode.

I’ll continue posting as I move through the series. Hoping to get current in the next week or so.

22 responses to “Castle: “Cloudy With a Chance of Murder”

  1. Justice or Defence. Prosecutions under UCMJ are federal too!

    • Ah, good point. We’ll correct the post.

    • Wait… are prosecutions under the UCMJ “criminal” prosecutions? My knowledge of the subject is limited to 25-year-old memories of what the USAF teaches basic military trainees about the UCMJ, but I seem to recall that many, if not most, of the procedures are different, and some of the interpretations of Constitutional imperatives were different.

      • Yep, a court-martial is a criminal trial.

      • Ryan Davidson

        They are criminal prosecutions. The point is that Justice brings all civilian prosecutions, while the JAG corps handles all military prosecutions pursuant to the UCMJ.

        A former military lawyer of my acquaintance describes the UCMJ with a musical metaphor: the UCMJ is to justice as military music is to music. Strident, short, and to the point.

      • James Pollock

        I think you misunderstand the question I ask (which is admittedly rather tangential).
        Start with this definitional assumption: Things which are violations of the criminal code are “crimes” or “criminal behavior”, which can result in “criminal prosecutions” in a “criminal trial” which, if successful, result in “criminal convictions”. The definition of “criminal” can either be used to describe someone who indulges in criminal behavior, or it can be limited to those convicted, depending on circumstance.
        There are other things which are violations of law, but are not violations of the criminal code, and therefore aren’t “criminal”. The UCMJ has its own list of offenses, punishments, and trial procedures, which are not performed in front of article III judiciary. There are, in fact, some things which are offenses under the UCMJ but are not “crimes” under the criminal code.
        THAT’S what leads me to ask whether or not a prosecution under the UCMJ is a “criminal” prosecution.

      • Ryan Davidson

        The UCMJ is entirely criminal. It’s a separate criminal code which applies mostly to active, reserve, or former military personnel. It is, in effect, a criminal code with limited personal jurisdiction. Everyone is subject to Title 18 of the U.S.C., but certain people are also subject to Title 50, Chapter 22, which contains the UCMJ.

    • BaronSurrebutter

      If you want to be REALLY strict – Justice, Defense, or the House of Representatives. After all, an impeachment proceeding is also a criminal prosecution (“[t]he trial of all crimes, except in cases of impeachment, shall be by jury”, U.S. Const. art. III sec. 2 cl. 2).

      But as to substantive point, I tend to agree with James Pollock: a UCMJ prosecution is not a prosecution at all (at least not in the constitutional sense) – it’s just a form of disciplinary proceeding, though bearing substantial resemblance to a judicial one (see Winthrop, Military Law 49 (1920 ed.) (“[courts-martial] are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-Chief, to aid him in properly commanding the army and navy and enforcing discipline therein”)).

      • I believe Winthrop’s review is wrong. Although they are not Article III courts, courts-martial can and do conduct criminal trials:

        “But when the act charged as ‘conduct to the prejudice of good order and military discipline’ is actually as crime against society which is punishable by imprisonment in the penitentiary, it seems to us clear that a court-martial is authorized to inflict that kind of punishment [i.e. imprisonment in a penitentiary]. The act done is a civil crime, and the trial is for that act. The proceedings are had in a court-martial because the offender is personally amenable to that jurisdiction, and what he did was not only criminal according to the laws of the land, but prejudicial to the good order and discipline of the army to which he belonged.” Ex parte Mason, 105 U.S. 696 (1881).

        As further evidence that it is a criminal trial and not simply a disciplinary matter, a court-martial triggers double jeopardy. Grafton v. U.S., 206 U.S. 333 (1907).

        I’ll also point to one of the more recent cases on military jurisdiction, Solorio v. U.S., 483 U.S. 435 (1987). “The Constitution grants to Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Exercising this authority, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the U.C.M.J.” Note the way the Court describes the process: trying servicemen for crimes. Not “disciplining servicemen for rules infractions.”

      • James Pollock

        I appreciate your support, but I’m going to point out that impeachment proceedings lead to a trial in the Senate, not the House of Representatives, and may be available at the state level as well as the federal. More importantly however, impeachment proceedings are NOT criminal trials. Double jeopardy does not attach to a person impeached and convicted; they may be tried in criminal court for the same offense, if appropriate.
        I’d be interested to hear an explanation from someone who practices (or practiced) UCMJ how double jeopardy interacts when a soldier could be tried both under a civilian authority AND the CO wants to impose penalties under article 15. Is one a bar to the other?

      • William Robelen

        If a soldier is court martialed, that is the end of the offense. It is double jeopardy to then try a soldier in the civilian courts for the same offense. Also, a commander cannot then initiate an article 15 hearing against the soldier for the same offense. In fact, if a commander initiates an article 15 hearing, the soldier has the option of a court martial instead.

      • James Pollock

        OK, so suppose you have a situation where the military folks and the civilian authorities don’t get along well. One of the soldiers commits an act which is chargeable as both by the civilian authorities or by the military authorities (to stick to a situation that’s believeable, lets say a brawl with civilians at a drinking establishment off-base.)
        The CO, protecting his soldier, offers an article 15 punishment of 8 hours confinement to barracks and forfeiture of $1 in pay for the next 3 months, and the soldier accepts. Jeopardy has attached and the civilian authorities are blocked from charging the soldier.(?)

      • William Robelen

        It is my understanding that could occur. If it did, the commander would almost certainly be brought up on charges himself, most likely for conduct unbecoming an officer. A similar situation could occur if for example, charges were preferred, an article 32 hearing (the military equivalent of a grand jury) was held, and the judge at the hearing decided for the soldier. Jeopardy has now attached just as much as if a grand jury no billed the charges.

  2. To ask an unrelated but comics-related question: If I do something that resets the universe’s history and someone’s life is worse in the new version of the universe than in the old version, have I committed a tort against them?

    Does it matter whether I specifically chose what the new history was like (so I had to decide that my boss in the old universe is now a janitor in the new one) or whether I just chose to have something different without regard for the details?

    In the new version of the universe, lots of people are better off and lots of people are worse off, just by chance. Does the fact that lots of people are worse off get balanced by the fact that lots of people are better off, or is the fact that I have harmed lots of individual people incapable of being compensated for by benefit to others?

    Does it matter if I literally reset the universe, or if I just time travelled into the past, changed something, and by butterfly effect there was a new history? Surely someone cannot sue me for travelling into the past, buying a newspaper, and by some unlucky chain of events the result is that now he’s a janitor. So should it be any different if I just restart the universe and the new one is different from the old one for similar reasons to that?

    (Of course, I am imagining a situation where they had some choice whether to reset the universe. I’m thinking of Artifacts, where Sara Pezzini (Witchblade) was going to kill Hope and restore the universe to what it was, while Jackie Estacado intervened and saved Hope, but also recreated the universe the way he wanted it to be. It involved saving the girl who would be his wife, and some other changes beneficial to him, but didn’t make a lot of big changes–he wasn’t emperor of the world. Still, I can imagine someone becoming a janitor in the new history.

    The question, of course, also applies to Superboy-Prime’s punches and a lot of other comic book history.

    • You left out the obvious… the people who did exist in the “old” universe and do not exist in the “new” universe.
      I’d think you’d have evidentiary problems from the start. Do it as a thought experiment: Suppose a guy walked in to the police station to turn himself in for doing what you suggest. Would the police be interested? Would a prosecutor? How does a guy who’s a janitor in our universe prove that he was the boss in another?

      My theory on time-travel: Every time a person travels backwards in time, it creates changes in the future (sometimes tiny, sometimes significant, depending on what that person does in the past). All of those changes ripple downstream, until eventually someone does something that causes time-travel to never be invented. Once that happens, the time continuum is stable and never changes again. Thus, time travel will never be invented.

      • I don’t think that the impracticality of doing many of the things discussed here really has much bearing on the question. (For instance, the question of how you can put Doomsday on trial is outweighed by the problems with getting him into a courtroom.) You basically have to assume for the sake of the question that these things are answered–for instance, in a universe-rewriting story, there’s always a few characters who remember things. Also, if a guy walked into the police station to turn himself in, in a superhero world, I’m sure that at some point someone could produce a telepath to verify his memory or perhaps a mystic or Watcher-equivalent to verify that the universe has been changed.

        As for people who only exist in one universe that’s another problem, but again, time travel has an analogous situation, and I can’t imagine anyone being arrested because they travelled into the past, made some insignificant change, and someone was never born, unless you want to claim that the use of time travel at all is negligent behavior since everyone knows that time travel carries an unavoidable risk to millions of people.

        And then someone from the future comes and says that history records you as burning all your money and a superhero arising and saving lives as a result. They then tell you that if you decide to not burn your money people will die who live in the other timeline. Are you legally obliged to burn all your money? Yet it’s the same thing as the first time travel scenario except that you’re changing the “future” instead of the present–but as far as those people are concerned, your future *is* their present.

      • James Pollock

        OK, get a telepath to examine the guy who walked into the police station to confess to re-writing the universe. The telepath does whatever it is that they do and determines that, yes, the guy really, really believes that what he says is true. At which point the police give him the phone number for a mental-health hotline and send him on his way.
        (The Watcher, of course, fails to intervene).

        “And then someone from the future comes and says that history records you as burning all your money and a superhero arising and saving lives as a result.”
        And then I say “your historians were misinformed.” and go on about my business.

      • The question is “are these against the law, assuming we can prove it”.

        Yeah, I mentioned telepaths, but you’re missing the point if you argue “we probably can’t prove it with telepaths”. Exactly what method we use to prove it is irrelevant to the question, just like exactly what method we use to get Doomsday into a court is irrelevant to the question “does Doomsday get tried in juvenile court”. Just assume we did somehow–the question is about the legal rules that would be applied once that happens.

      • What about someone like Mary Jane Parker? If she found out that her husband had altered reality to make it so that they had never been married, would she have grounds for a lawsuit? Could she sue Mephisto for theft of love, even if such suits are generally losers?

  3. The Castle situation is right out of Brewer v Williams, 430 U.S. 387. Cops got the perp in the car and talked about how terrible it would be if the little girl died without a proper burial; but no questions were asked. Perp showed them where she was buried. SCOTUS holds it violated his right to counsel.

    • The main difference from Brewer is that the defendant in that case had the information he provided used against him at trial. In this case, the police didn’t charge the suspect with anything in connection with his interrogation. The only charges brought were the environmental violations, and they had him dead to rights on those before he walked in the door.

    • My crim-pro prof called this the “good Christian burial” case. The difference there is that defendant had a lawyer who was not allowed to accompany him (as opposed to one who, for various reasons within the attorney’s control, had not arrived yet.) This is a case about what the cops are supposed to do when told that no further conversation is forthcoming; questioning is supposed to stop and not continue in whatever form (whether in the form of questions or statements intended to provoke a response, I mean.)

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