By Neal Shechter, J.D. Candidate
On November 16, 2011, Judge Patricia DiMango of the Kings County State Supreme Court issued a 22-page opinion denying the defendants’ motion to dismiss and ordering social workers Chereece Bell and Damon Adams to stand trial in the Marchella Brett-Pierce case. Although the decision on the motion to dismiss is not yet available, it is already attracting attention as the case heads toward a very public trial. Judge DiMango, who was recently profiled by the New York Times, held that evidence of the social workers’ failure to notice the young girl’s malnourishment and the alleged failure to appropriately monitor the family could be sufficient to allow the criminally negligent homicide charges to go to the jury. Her opinion sets a precedent which some feel could indict the entire social work profession, and an examination of the history of criminal negligence law in New York shows how much this opinion could reshape the definition of criminally negligent conduct.
A. Criminally Negligent Homicide
As a lesser offense to first or second degree murder, manslaughter charges are typically divided between voluntary and involuntary manslaughter, depending whether the defendant committing the act intended for harm (short of death) to occur. There are two types of involuntary manslaughter. A person can be charged for involuntary manslaughter for a killing which results from recklessness. But where there is no evidence of reckless behavior, prosecutors often charge defendants with criminally negligent homicide—a broad catch-all provision in state criminal codes which criminalizes non-reckless behavior (resulting in a killing) that nonetheless deviates from a general standard of care.
State criminal statutes are often vague on the nature of criminal, as opposed to civil, negligence, and the circumstances in which it arises. In New York, a person is guilty of criminally negligent homicide “when, with criminal negligence, he causes the death of another person.” N.Y. Penal Law § 125.10. According to N.Y. Penal Law § 15.05, “[a] person acts with criminal negligence . . . when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” Criminal negligence is different from recklessness, because “one acts recklessly when he perceives and consciously disregards the risk, but one acts with criminal negligence when he negligently fails to perceive the risk in the first place.” 6 N.Y. Prac., Criminal Law § 6:9.
B. Rare Charges
Only one court has ever convicted a social worker for criminally negligent homicide for a child’s death resulting from abuse by a third party. In Pennsylvania, six people are now serving prison sentences for the death of fourteen-year-old Danieal Kelly. Kelly, who suffered from cerebral palsy, starved to death in her mother’s apartment after being abused for years.
One of those convicted was Mickal Kamuvaka, the founder and chief administrator of a former social services company in Philadelphia, Multi-Ethnic Behavioral Health, Inc. Kamuvaka’s company contracted with the Philadelphia Department of Human Services to monitor children deemed at risk of abuse and perform preventative monitoring and other services. In July 2011, a jury found Kamuvaka guilty of involuntary manslaughter after evidence came to light that she had failed to supervise social workers for her agency who were regularly failing to conduct required home visits to at-risk children. Manuelita Buenaflor, a “quality assurance supervisor” at Multi-Ethnic, testified that “ghost visits” and phony case notes were common, and had been a subject of management meetings.And upon learning of Kelly’s death, Kamuvaka engaged in a “forgery fest” to make it appear as though her agency had done its job.
But in Pennsylvania, involuntary manslaughter is a misdemeanor, not a felony. And it remains to be seen whether the evidence against Bell and Adams compares to that which the state presented in the Kamuvaka case. For one thing, no evidence has yet come to light that Bell, as an ACS supervisor, systematically and negligently tolerated or encouraged her social workers to skip home visits and falsify case notes. Just eight months before Marchella’s death, Bell won an award from the ACS Commissioner for her “extraordinary efforts to protect children.”
C. A Departure from Past Precedent
For public employees to have civil liability for acts committed against a child by a third party, New York courts have generally required evidence that the employee or agency “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.” Mirand v. City of New York, 84 N.Y.2d 44 (N.Y. 1994). In Mirand, a school was held liable in a civil action for the beating of a child perpetrated by another student where it had been put on notice of the danger to the victim through prior violent conduct by the perpetrator. Mirand was distinguished in Liang v. Rosedale Group Home, 799 N.Y.S.2d 69, 71 (N.Y. App. Div. 2005), where the third party who committed the assaults had no prior history of violent or threatening behavior of any kind to put the defendant agency on notice.
In the Brett-Pierce case, no evidence released thus far shows that either Bell or Adams were on notice that Marchella was in danger beyond the mere fact that Marchella’s mother, Carlotta Brett-Pierce, was being monitored for drug use and had tested positive for marijuana during pregnancy. In fact, Marchella had visited an ear, nose, and throat clinic just three months before her death, and workers there did not notice or record anything out of the ordinary.
Even if Bell and Adams had been faced with some evidence that Marchella was in danger, the difference between civil liability under Mirand and criminal liability for negligent homicide cannot be overlooked. Courts in New York have held that criminal negligence “must involve conduct so highly culpable and blameworthy as to be tantamount or equivalent to an intent to injure another . . . there must be conscious disregard of a substantial and unjustifiable risk, which . . . means a risk that death or serious bodily injury will probably (as distinguished from possibly) ensue.” People v. Lansing Terrace Apartments, Inc., 332 N.Y.S.2d 705, 710 (N.Y. Crim. Ct. 1972).
Furthermore, criminally negligent homicide cases in New York involving the negligent failure to provide care for another have almost always focused on the primary caregiver. People v. Sanford, 808 N.Y.S.2d 274, 275–76 (N.Y. App. Div. 2005) (geriatric nurse liable for criminally negligent homicide for failing to seek medical help after her mother fell down the stairs); People v. Goddard, 614 N.Y.S.2d 480, 482 (N.Y. App. Div. 1994) (reversing conviction for criminally negligent homicide where babysitter could not have known that parent had not given infant child medication for a life-threatening condition); see also Ketchum v. Ward, 422 F. Supp. 934 (W.D.N.Y. 1976), aff’d, 556 F.2d 557 (2d Cir. 1977) (upholding doctor’s conviction for criminally negligent homicide for providing negligent postoperative care).
Extending criminal liability to Adams, even if he had negligently failed to make the required number of visits to the Brett-Pierce home, would break with past precedent by holding a non-primary caregiver criminally liable for failure to act. And extending criminal liability to Bell, even if she had negligently failed to supervise Adams, would be an even greater departure from the common law by holding administrative staff member criminally liable for an employee’s (non-primary caregiver) individual failure to act.
Taken to its logical extension, the ruling should be a wake-up call to a number of professions beyond social workers. Teachers in particular could face criminal liability in situations where they currently face Mirand-like civil liability, such as the failure to protect a student from other students or teachers. Moreover, school administrators could face criminal liability for a teacher’s failure to act in such a situation. Even in a post-Sandusky/Paterno world where many are looking for greater accountability and from school administrators, issues of criminal liability should not be taken lightly.
Even if the extension of criminal liability to these situations (failure of a non-primary caregiver or caretaker to protect a child from the behavior of a third-party) were a result supported by favorable public policy, at the very least, such an extension should be enacted through legislative, and not judicial, activity.