ECHO

ECHO is the 2008-11 graphic novel series by Terry Moore about a young woman in the American southwest who gets mixed up in a secret military test and winds up with part of a high-tech battle suit seemingly grafted to her chest. Moore self published it under his own Abstract Studios label. The complete series is available in a single volume on Amazon and from Moore directly. I had the good fortune to meet Moore at WonderCon last weekend, and in addition to being a fantastic author and artist, I can say from experience that he’s also a great guy to be around.

The book ran for some thirty issues, all written, drawn, and lettered by Moore. There are rumors of a movie—it was optioned by a major producer in 2009—but I can’t find any recent confirmation of that project’s status. In any case, this book is totally worth checking out.

In this post we’re going to look at whether anyone (and if so who) might be chargeable with a homicide offense for the death of one of the characters in the first issue. Definite spoilers follow.

I. Annie

The character in question is Annie Trotter, a scientist and now military test pilot/subject who makes her appearance on the first page of the comic. She’s testing out a fancy new battle suit and jetpack combination, and in the very first panel, we can see that something has gone wrong. The next panel jumps four minutes into the past, and at that point, we see that everything seems to have been going fine. Annie is flying some few thousand feet up, communicating with whoever is running the experiment. He cuts the engine’s power by a third for testing purposes. Then Annie notices. . . a missile lock? And just then a (well-drawn) F-16 drops behind her. Annie starts to freak out, and the person on the other end of the line, someone named “Foster” orders the fighter to fire an AMRAAM at Annie. F-16s do carry AMRAAMs, so good job on the homework so far. Annie is now well and truly pissed off, and Foster orders another AMRAAM shot. While taking evasive action, Annie protests that the suit is essentially a nuclear weapon of some kind (we don’t know what yet) and that there’s a substantial risk of fallout. Foster says he’s sure she can handle it, and orders the F-16 to fire two shorter-range Sidewinders (which the F-16 also mounts). At this point, Annie realizes she may not make it. She manages to ditch the AMRAAMs by pulling an 11G, 180 degree turn near a cliff, but the Sidewinders stay on her tail. She tries to lose them by gaining altitude, but Foster has cut the engine by another third. The Sidewinders close, and the suit/jetpack (and presumably Annie) explode in what looks for all the world like a nuclear explosion.

II. Homicide?

So. . . who, if anyone, is chargeable with a homicide offense for Annie’s death? Well right off the bat, we’ve got a problem. Annie died while participating in a federal military test. Everyone involved was either directly employed by or under contract with the federal government. This is going to cause enormous problems for prosecution in state courts, because it is well established that the states may not interfere with federal agents in the execution of their duties. This includes prosecution in state courts for crimes under state law. “[A] federal officer cannot be held on a state criminal charge when the alleged crime arose during the performance of the officer’s federal duties.” Morgan v. California, 743 F.2d 728, 731 (9th Cir. 1984) (citing In re Neagle, 135 U.S. 1 (1890)). The courts have also shown a willingness to extend this immunity to federal contractors, particularly where the military is involved. The courts have dismissed several cases against military contractors responsible for some of the excesses at Abu Ghraib for immunity and jurisdiction reasons. This is a slightly different case, in that it involves a weapons test, not combat or related activities, but the general rule is still in play: it’s going to be very, very difficult to reach anyone involved under state law.

What about federal law? The immunity here is not a right of the individuals, but of the federal government. Would anyone be subject to federal criminal prosecution? And if so, whom? Well we can probably rule out the F-16 pilot. As an active member of the armed forces engaged in an official operation, he would be subject to the UCMJ. But this does not appear to fit the UCMJ definitions of either murder (10 U.S.C. 918) or manslaughter (10 U.S.C. 919). First of all, the pilot had no intent to kill. He fired a missile as ordered by the person in charge of the operation, and presumably thought that this was just a routine part of the test. He may not have even known there was a person in the suit. But more than that, he had no reason to believe that this was not a lawful order. He’s a military test pilot. He probably participates in live-fire exercises every other Tuesday. Why should this one be any different? There’s no evidence that he was ever patched in to Annie’s radio channel, and Annie never attempts to contact him, so we’ve no reason to think he suspected anything fishy was going on. To be liable for a homicide offense under any US criminal code, one needs to have some guilty mind. Felony-murder is the only strict liability homicide offense, and that basically just imputes the guilty mind with respect to the underlying felony to the homicide. In this instance, the pilot was engaged in a lawful activity and seems to have been just as much an instrument as the missiles he fired.

But what about Foster? He’s the one who gave the order. And it turns out (spoilers!) that he was deliberately trying to kill Annie for internal political reasons which come out later (can’t spoil everything). Proving this could be quite difficult though, as he’s certainly not going to testify, and many of the other people involved either don’t know what’s going on or wind up dying pretty soon thereafter. Indeed, it’s possible that Foster made the decision without telling anyone about his motives. He deliberately interferes with Annie’s ability to evade the missiles by cutting her engine power and does all of this obviously without her consent. He also jumped straight to live testing without conducting any preliminary experiments about whether the suit and/or jetpack would actually be able to handle this sort of thing. That suggests criminal recklessness if not outright malicious intent. And what about the military officers in the room? It’s possible that Foster lied to them about the nature of the test, which would excuse them up to a point. But they seem to be in on Foster’s communication with Annie. Shouldn’t they have ordered the test aborted when they realized how dangerous it was?

Now we get into the weeds a bit. Under what circumstances may live fire testing take place where civilian contractors are involved? There are presumably a host of Defense Department regulations about that, but this is such a highly technical and specialized field of law that I don’t even know where to begin. Readers with experience and insight here are welcome to share their expertise. But if Foster was legally justified in ordering the shot, then his guilty mind—and the seeming carelessness of the officers present—won’t matter at all. Murder is the unlawful killing of a human being. If the act that resulted in Annie’s death was lawful, and it might have been, there’s no homicide offense to be found. Determining whether this shot was lawful would require diving far deeper into military regulations than I have time for at the moment. I have a sneaking suspicion that this sort of thing might well be lawful, or at least arguably so.

To make matters worse, even if there are potential causes of action that could be brought (in civilian court or courts-martial), it seems very unlikely that either the applicable JAG corps or US Attorney is likely to be all that interested in this case. It involves a highly classified military weapons test. You don’t drag that stuff out into the public. Certainly not when high-ranking officers and cutting-edge weapons contractors are involved.

III. Is Annie Really Dead?

Complicating matters is the question of whether Annie is really dead at all. Major spoilers here, but some significant portion of her consciousness survived in the suit, which itself survived the explosion. Since she’s arguably still around, is it even homicide?

Yes. The law makes no provision for the survival of the person independent of the body. As far as the law is concerned, you are your body. Full stop. The legal system is entirely agnostic as to the nature of consciousness or the existence of non-material souls. In most states, death is defined (and homicide is thus dependent upon) the Uniform Determination of Death Act, which provides that a person is dead upon the permanent cessation of either (1) all brain activity; or (2) the cardiovascular and respiratory systems. Annie meets both of these definitions, as her body is spread over a significant chunk of the landscape, even if some of her genetic material has been absorbed by the suit. Whether or not her “consciousness” continues to exist—or whether it’s even numerically identical with the person she used to be—is of no relevance whatsoever to the legal analysis. Her body has been destroyed, so she is dead. End of discussion.

This actually has implications broader than this particular story. All those stories about people “uploading” themselves into computers via some process that destroys the brain so as to take up residence in the virtual world? As far as the legal system is concerned, those people are dead, and any resulting computational phenomena are merely interesting computer science artifacts. They’re not people. The same issue would be true of things like the transporter in Star Trek, which lead to really messy metaphysical problems. George Herbert’s advice seems appropriate here: “Thou shalt not disfigure the soul.”

Even if we ignore the religious implications–and in this blog we do–we can’t ignore the philosophical implications. Death is defined at law as the permanent cessation of certain bodily functions. Even assuming a strictly materialistic world, what do we do if we have a process which destroys one body, creates a copy virtually indistinguishable from the first, and results in an entity which claims to be numerically identical with the previous person? And what do you do if the process is capable of producing two copies, as happened to Will Riker? The current definition of death strongly suggests a determination that the “original” person has died, but it provides no guidance about what to do with any new entities which result. There isn’t even any obvious reason they might be considered “persons” at all, though the mere fact of their existence ought to deal with that. It seems unlikely that a court would deny personhood to an entity which looks and acts like a human being. But it also seems unlikely that the court would recognize that this person is the same person as the one who went into the machine. We’d have one dead person and one different, living person. That would seem to run counter to many people’s intuitions about these things, and it certainly runs counter to many of the assumptions in speculative fiction. Ultimately, I think the courts’ answer is likely to be “Drop back ten yards and punt,” i.e., wait for the legislature to deal with that mess. I can’t see any court being willing to tackle a problem quite that thorny without some kind of legislative input, as the existing legislation doesn’t leave much wiggle room but leads to really counter-intuitive results.

Herbert’s advice seems more and more useful the more I think about it.

But the long and short of it for the purposes of ECHO is that Annie is, from the perspective of the legal system, dead. Her life insurance policies will pay out, her estate can be opened, the whole nine yards. No question about it.

IV. Conclusion

So Foster is probably liable for a homicide offense related to Annie, who really is dead, but finding other people liable might be difficult. The UCMJ would probably excuse the pilot, and the officers are probably situated in such a way as to make prosecution unlikely, even if they were aware of what was going on at some point.

ECHO is really worth the read. The legal issues discussed above are pretty tangential to the story itself, but the story stands in its own right as one of the better graphic novels of the last decade, if not more.