One That Got Away . . . Palsgraf Meets Pureed Broccoli in the Law of Felony Murder

Brackett v. Peters, 11 F.3d 78 (7th Cir. Ill. 1993)

I argued this habeas corpus appeal in the Seventh Circuit 20 years ago — and lost. I was a young lawyer then, and this was one of the many pro bono cases that Jenner & Block routinely took as part of its unique dedication to providing legal services to the indigent.

This case still troubles me when I think about it from time to time. Randy Brackett, my young client (he was then in his twenties) was convicted of felony murder because he sexually assaulted an elderly woman (she was over 80), who sustained minor injuries in the attack, was briefly hospitalized, and thereafter moved to a nursing home. There, she became depressed, refused to eat, and was, some months later, choked to death by an overzealous attendant who — in an apparent attempt to force-feed her — injected 8 ounces of pureeed broccoli into her throat. The autopsy reported that the victim’s trachea was full of pureed broccoli at the time of her death, by asphyxia.

After the victim was choked to death, months after the assault, in the nursing home, the state upgraded the charges against Brackett from aggravated sexual assault to felony murder, on the theory that Brackett caused the victim’s death by inflicting ultimately fatal psychological injuries during the commission of the sexual assault, a felony.

The prosecution called this “psychological murder.” They argued that my client killed the victim by causing her to become depressed, which caused her to be placed in a nursing home, which caused her to become more depressed and to refuse to eat, which ultimately led to her being choked to death with pureed broccoli by an overzealous attendant.

The facts raised interesting legal issues about causation. Causation that gives rise to civil liability had been famously examined (and limited) in the seminal case of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), a decision by Benjamin Cardozo.

In Palsgraf, a train passenger carrying a package, while hurrying to catch and board a moving Long Island Rail Road train, appeared to two of the railroad’s employees to be falling. The employees were guards, one located on the train car, the other on the platform. The guard on the car attempted to pull the passenger into the car while the guard on the platform attempted to push the passenger into the car from behind. The guards’ efforts to aid the passenger caused the package the passenger was holding to fall on the rails. Unbeknownst to the guards, the package, which was approximately 15 inches long and wrapped in newspaper, contained fireworks, and exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the railroad platform (although conflicting accounts suggest that a bystander startled by the explosion may have upset the scale), which fell on, and injured Mrs. Helen Palsgraf. Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the railroad guards. The trial court and the intermediate appeals court found for Palsgraf by verdict from a jury, and Long Island Rail Road appealed the judgment.

The long and intricate chain of causation in Palsgraf (reminiscent of a Rube Golberg cartoon) has been modified for humorous effect and acted out by Lego pieces in a very clever tongue-in-cheek video on YouTube:

On appeal, in a seminal opinion authored by Justice Cardozo, the court reversed and dismissed Palsgraf’s complaint, on grounds that the relationship of the guards’ actions to Palsgraf’s injury was too indirect to make them – or their employer – liable. Cardozo’s opinion created what has become known as the “Palsgraf Rule” — the notion that negligent conduct resulting in injury will result in a civil liability only if the actor could have reasonably foreseen that the conduct would injure the victim.

Unlike Palsgraf, Brackett was a criminal case, and therefore subject to a higher standard of proof — proof beyond a reasonable doubt, not just by a preponderance of the evidence (more likely than not).

Was Brackett properly convicted of felony murder because the state had proved — proved beyond a reasonble doubt – that his conduct had foreseeably resulted in the incident that caused the victim’s death?

Before the oral argument, I thought that this sort of case was precisely the sort of intellectual puzzle that would appeal irresistibly to Justice Posner.

I was right. When the day came to argue the case, there he was, one of the three Justices on the panel.

I argued that the careless injection of pureed broccoli into the victim’s throat months after the assault was an intervening superseding cause, and that my client could not foresee, at the time of the assault, that that would occur as a result of his admittedly heinous actions.

That argument did not carry the day.

The panel found that my client was properly convicted of felony murder because but for his conduct the decedent would not have been in the nursing home where she was vulnerable to the impatience of a careless attendant . . . . Put differently, it was reasonably foreseeable that the elderly victim of a home invasion and sexual assault would thereafter become suicidally depressed, and therefore vulnerable to death at the hands of a careless nursing home attendant.

The case has been cited for the notion that for purposes of the “eggshell skull rule,” “psychological vulnerability is on the same footing as physical [vulnerability].”

Does a sexual assault become felony murder if the victim becomes suicidally depressed, and dies months thereafter as a result of the careless act of a third party, on the theory that psychological injury is a reasonably foreseeable consequence of the assault?

What do you think?


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So You Want to Go To Law School . . .


I hate to admit it, but this video contains some truth, albeit greatly exaggerated. It is also very funny . . .


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