FYI:  2-3-04

About That German Cannibal Case

A Bad Law, a Bad Outcome, and Intimations of Moral Decay

Observations

by

Jay B. Gaskill

(Former Alameda County, CA Public Defender)

 

Most news junkies already know about the German man eater, one Armin Meiwes, who was convicted this month only of manslaughter and given less than eight years by German Judge Volker Mutze for a premeditated torture murder in which the victim was actually conscious and videotaped for part of the butchery and cooking.

 

I will mercifully skip the rest of the utterly repellant details of Meiwes’ sickening conduct with this observation: Should society give any moral or legal weight whatsoever to the alleged, bizarre and twisted consent of the victim in this case (who was mentally disturbed enough to respond to an internet invitation to be eaten, then given drugs)? To do so would be to sanction authentic evil. 

 

As I’ve already pointed out: Evil presents several problems to the 21st century mind. In part, this is because the recognition of evil requires an act of judgment, which is an increasingly difficult exercise in a culture characterized by an almost pathological fear of judging another. True evil, when recognized and acknowledged by those who are not evil, entails the response of implacable resistance, unambiguous condemnation, and relentless opposition.  But these are not “PC” responses.  In any culture crippled by a facile and fashionable ethos of political correctness, evil can rarely be confronted.  [For a more extensive discussion about Evil, see my article posted here on The Policy Think Site, the distillation of my contributions to a post 9-11 panel discussion]

 

A number of writers have weighed in on this bizarre case, blaming the German Jurist, mocking the defense attorneys, and so on.  No one seems yet to have fully gotten the point that it’s the law.  Specifically, this horrid outcome was the product of German law and its regular administration, itself the product of a mindset weakened by moral ambivalence. This is a dangerous social condition eerily reminiscent of the days of the Weimar Republic.

 

The best way to understand this point is by contrast with a healthier culture. As a California attorney, I would expect the following scenario to unfold had this crime been committed here:

 

The Charges:

 

  • Murder (Penal Code 187, (a)) in the First Degree “perpetrated by lying in wait, torture” or a “deliberate, premeditated killing committed in the perpetration of, or attempt to perpetrate…mayhem.” (P.C. 189).
  • Special Circumstances in that “the murder was especially heinous, atrocious or cruel” (P.C. 190.2 (a) (14),
  • Special Circumstances in that the murder was committed while the defendant was engaged in…or attempting to commit” … mayhem. (P.C. 190.2 (a) (17) (J),
  • Special Circumstances in that the murder was intentional and involved the infliction of torture.

 

The Penalty Range:

 

  • For first degree murder, alone, 25 years to life.
  • For special circumstances murder, life without the possibility of parole or death by lethal injection.

 

The Mercy or Aggravation Factors:

 

Two penalty factors that a jury weighing a possible death sentence would be asked to consider:

1.      “The circumstances of the crime…” (P.C. 190.3 (a))

2.      “Whether or not the victim consented to the homicidal act.” (P.C. 190.3(e)).

 

The Likely Outcome:

 

On these facts, it’s a safe bet that most California juries, most of the time, would sentence the cannibal to death.  Were the defendant somehow to escape substantial justice via a loophole of any kind, it’s an equally safe bet that the California legislature and the voters (using the initiative process) would be locked in a race to close that loophole.

 

Edmund Burke warned us that evil triumphs when good people do nothing to oppose it.  I would add that evil tends to grow stronger wherever its worst manifestations go unrecognized, excused or tolerated.

 

 

This piece was first posted on “The Policy Think Site”

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Copyright © 2004 by Jay B. Gaskill 

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Jay B. Gaskill, attorney at law, via e mail: office@jaygaskill.com