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Reckless Homicide: “Substantial Factor” Causation, rel. to Life Support Termination

State v. Michael D. Below, 2011 WI App 64 (recommended for publication); for Below: Joseph L. Sommers; case activity

Below indisputably caused massive injuries that resulted in the victim’s death, albeit after medical staff terminated life support. His reckless acts were therefore a “substantial factor” in, hence caused, her death. He was not entitled to a theory of defense instruction authorizing the jury to acquit him on the basis that the termination of life support was an intervening cause of death. Nor can he successfully argue that, because of this asserted intervening cause, the State failed to prove his conduct was a substantial factor in the victim’s death.

¶23      The trial court denied the motion in its entirety explaining that even if an intervening act is legally wrongful, if the State meets its burden of proof, that wrongful act will not break the chain of causation between Below’s actions and Madison’s death:

Whether the acts constitute medical malpractice or are otherwise “legally wrongful” the analysis is the same.  The State must still prove beyond a reasonable doubt that the Defendant’s acts were a substantial factor in producing [Madison’s] death….  [E]ven if the Defendant can establish that the termination of Madison’s life support was “wrongful” under Wisconsin Law, that wrongful act would not break the chain of causation between the Defendant’s actions and Madison’s subsequent death.

¶33      Under Wisconsin law, whether the intervening act was negligent, intentional and/or legally wrongful is irrelevant.  The analysis is the same.  The State must still prove beyond a reasonable doubt that the defendant’s acts were a substantial factor in producing the death.  Therefore, the trial court’s denial of Below’s motion, including the intervening cause instruction, was altogether proper.  Even if Below could have established that the termination of Madison’s life support was “wrongful” under Wisconsin law, that wrongful act would not break the chain of causation between Below’s actions and Madison’s subsequent death.  We are satisfied that the trial court’s well-reasoned decision to deny the motion was based on the law.  Moreover, the overwhelming evidence supports the jury’s finding beyond a reasonable doubt what the State successfully proved:  Below’s actions were a substantial factor in causing Madison’s death.

The court relies principally (¶30) on the following observation from Cranmore v. State, 85 Wis. 2d 722, 774-75, 271 N.W.2d 402 (Ct. App. 1978): “Even were we to find that the attending physicians were negligent in believing that the officer was dead and that their negligence contributed to his death, this would not break the chain of causation between the defendants’ acts and the consequent death.” Below embellishes that principle, so that the reference to negligence becomes superfluous:

¶31      Below attempts to distinguish his case from Cranmore pointing to the fact that in Madison’s death, unlike in the officer’s, the intervening act was indisputably intentional and arguably illegal.  We are hard pressed to understand why Below contends that the categorization of the intervening act has any significance.  Indeed, in Cranmore we determined that the intervening act’s categorization was so immaterial to our determination that it was left undecided.  See id. at 775.  Furthermore, we made clear that even if we had categorized the intervening act as negligent, this fact would not be sufficient to relieve a defendant of his or her culpability when it is proved beyond a reasonable doubt that the defendant’s acts were a substantial factor in producing the death.  See id.

Wisconsin’s already expansive view of causation just got a bit broader. For that matter, the court’s elimination altogether of the need to categorize an intervening act is casual to the point of gratuitous. As put by a leading treatise, LaFave and Scott, Substantive Criminal Law, § 6.4(f)(5), pp. 485-86 (2nd Ed. 2003) (footnotes omitted):

… It is generally held that A is guilty of murdering B, i.e., that A‘s act legally caused B‘s death, unless the doctor’s treatment is so bad as to constitute gross negligence or intentional malpractice. In short, mere negligence in medical treatment is not so abnormal that the defendant should be freed of liability. (Indeed, it has been held that the “act of disconnecting life support systems of a person who is brain dead with little chance of recovery is medically reasonable and is not the death producing cause or a sufficient intervening cause of death to negate the act of the defendant as the cause of death.”) …

Cranmore, then, is uncontroversially an exemplar of the general rule that medical negligence doesn’t sever causation. It’s not clear why the court presently perceives that Cranmore supports the elimination of gross negligence or intentional malpractice.

Separately: elements of first-degree reckless homicide, and definition of “criminally reckless conduct,” summarized, ¶¶5-6.

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