The Mummy’s Curse of Liability

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October 29, 2017

The 1932 Universal Monster Classic The Mummy, tells the story of Imhotep, who was mummified alive for the crime of sacrilege for attempting to resurrect Princess Ankh-es-en-amon with Scroll of Thoth over 3,700 years ago.

Imhotep was awaken from death when an archeologist read the Scroll of Thoth in 1921. After a decade of “living” in the 20^th Century, Imhotep assumed the identity Ardath Bey and directed an archeological team to find the tomb of Ankh-es-en-amon. Following a failed attempt to resurrect Ankh-es-en-amon’s mummified remains failed, Imhotep learned Ankh-es-en-amon had been reincarnated multiple times and was living as Helen Grosvenor. Imhotep planned to kill Helen in a ceremony to bring Ankh-es-en-amon back as a living mummy, her soul purified of the other lives she had lived.

Let’s unwrap a few layers of the Mummy’s legal issues.

Mummifying Imhotep Was Cruel and Unusual Punishment

Imhotep’s attempt to resurrect Ankh-es-en-amon was a capital offense that was punishable by death that extended into the afterlife. Even though Imhotep’s sentence was carried out 3,500 years before the formation of the United States, the death sentence of mummifying a person alive is the exact sort of punishment the Eighth Amendment precludes.

An execution is cruel and unusual punishment if the method presents a “substantial” or “objectively intolerable” risk of serious harm. Baze v. Rees, 553 U.S. 35, 40 (2008). Other courts have articulated the legal standard for determining whether a form of execution violations the prohibition of cruel and unusual punishment as follows:

1) Presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution;

2) Violates the evolving standards of decency that mark a mature society, and

3) Minimizes physical violence and mutilation of the prisoner’s body.

State v. Mata, 275 Neb. 1, 48, 745 N.W.2d 229, 266 (2008)

The United States has a history of allowing executions, starting with hangings at the founding of the country, later firing squads, to finding the most “humane and practical” methods for executions “known to modern science.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). These methods have included electrocution, because it was thought to be less painful and more humane than hanging, to the gas chamber, to lethal injection. Id.

Mummifying Imhotep alive would pose an “objectively intolerable” risk of serious harm. First off, Imhotep was wrapped alive and sealed in a totally dark sarcophagus to die, either from starvation or the lack of air. It does not take an archeologist who can read hieroglyphics to see that Imhotep would suffer unnecessary and wanton pain in an execution by suffocating to death in darkness. Furthermore, the Pharaoh had the slaves who buried Imhotep killed, followed by the soldiers who killed the slaves also killed. This double digit body count would go against the evolving standards of decency that mark a mature society, where executing one man requires several dozen more to also die for national security. Finally, leaving Imhotep in total darkness to either starve or suffocate does not limit the physical violence he suffered in death.

Based on the above, “death by mummification,” would be cruel and unusual punishment.

Can Ankh-es-en-amon Be Resurrected under the Free Exercise Clause?

Imhotep illegally entered the Cairo Museum to perform a religious ceremony with the Scroll of Thoth in an attempt to resurrect Ankh-es-en-amon’s mummified remains. Imhotep murdered a guard who discovered him during the ceremony.

If this had been in the United States, the “Free Exercise Clause” under the First Amendment gives people the right to “believe and profess whatever religious doctrine one desires.” Parker v. Hurley, 514 F.3d 87, 103 (1st Cir. 2008). However, it is not a general protection of religion or religious belief. Id.

If the Free Exercise Clause is raised as a defense to a tort (in this case, trespassing), the issue is whether the defendant’s conduct was religious. Wisconsin v. Yoder, S. Ct. 1526, 1533-34 (1972). Arguably reading the Scroll of Thoth in an attempt to resurrect Ankh-es-en-amon would be a form of praying. However, the Free Exercise Clause does not shield clergy from wrongdoing or allow them to ignore laws of general applicability. See, Sanders v. Casa View Baptist Church, 898 F. Supp. 1169, 1174 (N.D. Tex. 1995). This would include trespassing and there is no religious exception to committing murder.

Praying to bring Ankh-es-en-amon back to life arguably would be protected conduct, however, that free exercise ends with intentional torts and crimes.

Desecration of a Corpse and Attempted Murder

Imhotep’s plan to kill Helen Grosvenor in order to bring Ankh-es-en-amon back as a living mummy has multiple legal problems. The first was burning Ankh-es-en-amon’s mummy, because that was desecration of a corpse. Many states recognize there is a tort for abuse or mishandling of a dead body. See, Frys v. City of Cleveland, 107 Ohio App. 3d 281, 284, (1995). The wrinkle with Ankh-es-en-amon’s mummy was it was not in its tomb, but in its sarcophagus on display at the Cairo Museum. That being said, burning the body still required it being removed from its resting place and destroyed.

Imhotep planned to murder Helen Grosvenor in order to make her a living mummy. There is no exception to murder in order to cleanse a reincarnated soul of other past lives. This would be a crime…. provided a 3,700 year old living mummy could be incarcerated on this plane of existence.

Mummy Dearest

Imhotep is a cold and calculated killer, not just because he is a reanimated corpse. Imhotep acted with a specific intent to manipulate others for his ultimate goal of brining Ankh-es-en-amon back from the dead. The problem for Imhotep is he killed at least two people, enslaved another, committed fraud in representing who he was to the British expedition, destroyed historic artifacts of cultural significance at the Cairo Museum, and attempted to murder Helen Grosvenor. There is no legal justification for these crimes, however, the Egyptian Goddess Isis claimed jurisdiction of Imhotep’s wrongful conduct.

Can You Prosecute Someone for Murdering a Dead Person Who Comes Back to Life Again?

By

Josh Gilliland

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April 28, 2014

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The penultimate episode of Resurrection presented a fact pattern that would give most attorneys a migraine.

How do you prosecute someone who kidnaps and kills a victim who returned from the dead from 12 years earlier AND returns from the dead after being killed a second time?

And just to make things more interesting, the victim is two months pregnant.

Kidnapping is very straightforward to prove. Pursuant to Burns Ind. Code Ann. § 35-42-3-2, a person who knowingly removes another person by force or threat of force, commits a Level 6 felony. It is a level 5 felony if an automobile was used and a Level 3 felony if committed with a deadly weapon.

Rachael was taken by a sheriff deputy and two men in a car to a cabin in the woods. One of the future Defendants had both a gun and a knife. After the deputy and another presumptive defendant left, the final Defendant (Gary) threatened the victim with a knife and cut her cheek.

These facts show not just kidnapping, but also torture. If someone if murdered where torture has taken place, the state could seek life imprisonment or the death penalty. Burns Ind. Code Ann. § 35-50-2-9. There is also a big 1983 action against the deputy for his actions in the crime.

The murder charge is where things get funky. Gary the Defendant shot and killed Rachael in a fight while she was being held against her will. These facts should meet the requirements of Murder under Burns Ind. Code Ann. § 35-42-1-1(2), because she was shot and killed during a kidnapping.

There is no question she was killed and her body taken away by the coroner.

What legal effect does it have for her to be found alive walking along the road? You need a dead body in order for there to be a murder.

Let’s refer to the original Rachael as Rachel Prime, the first Rachael returned from the dead as Rachael Alpha and the third Rachael as Rachael Beta. However, they are all the same person.

Rachael Prime committed suicide while pregnant by driving off a bridge in 2001 or 2002. Rachael Alpha was a living woman who was pregnant. She was kidnapped and physically died. Provided that there is still a corpse of Rachael Alpha, it should not legally matter that Rachael Beta is alive. A DA could argue that a human being was killed while trying to escape a kidnapping, which resulted in her death. There would not be a sentence enhancement for killing a pregnant woman, because the fetus was not yet viable, a requirement under the code. However, kidnapping could be a sentence enhancement.

A defense attorney would argue no murder has taken place, because Rachael Beta is alive, absent a lot of emotional damage. DNA would match, memories and the fact the murdered victim would be alive in court by subpoena. However, the DA could produce the autopsy report of Rachael Alpha, complete with photos, and testimony from the medical examiner. At this point Rachael Alpha’s dead body would be legally relevant, but a judge would likely prohibit it being offered into evidence because of its prejudicial effect on a jury. However, it would be advisable to keep it available to counter possible defenses.

So for all of the lawyers out there, just be glad the dead do not keep coming back to life with new bodies after being killed a second time.

Doctor Patient Privilege on Resurrection

By

Josh Gilliland

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April 8, 2014

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The Resurrection episode “Insomnia” provided an example of the doctor-patient privilege in action. In the story, Rachel, the newest person to return from the dead, is examined by the doctor Maggie Langston. The patient is pregnant and instructs the doctor not to tell the baby’s father, who is also a minister.

Would Dr. Langston have to keep that information confidential?

According, to Missouri case law and statutes, yes. However, there might be an exception.

Missouri has codified into statute that a doctor is “incompetent” to testify about “any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient…” § 491.060 R.S.Mo.

Case law also has long maintained that a doctor cannot testify about any information they learned while treating a patient as well. See, Holtzen v. Missouri P. R. Co., 159 Mo. App. 370, 376 (Mo. Ct. App. 1911).

The only statutory exception to the doctor-patient privilege in Missouri is in cases of suspected child abuse or neglect. § 210.140 R.S.Mo. and Pilger v. Pilger, 972 S.W.2d 628, 1998 Mo. App. LEXIS 1218 (Mo. Ct. App. 1998).

What does this mean for Dr. Langston whose patient is pregnant and who successfully committed suicide? Would this create a reporting situation to law enforcement of possible risk to the unborn child?

Many states have outlined specific situations where a health care provider can breach their duty of confidentiality where the patient is showing violent behavior that indicate an “imminent danger that the patient will use physical violence or use other means to cause serious personal injury or death to others.” Ind. Code § 34-30-16-1.

In Rachel’s case, she successfully committed suicide while two months pregnant. This puts Dr. Langston in legally untested waters. Missouri does not appear to have the “danger to oneself or others” exception to a doctor’s duty of confidentiality. However, it does have an exception for child abuse or neglect. There is no case law on whether attempted suicide, let alone successful suicide, would qualify as an exception in Missouri to an unborn child.

The closest case on point involved the duty to warn involving a child molestation victim. In that case, the Court held:

Specifically, we hold that when a psychologist or other health care professional knows or pursuant to the standards of his profession should have known that a patient presents a serious danger of future violence to a readily identifiable victim the psychologist has a duty under Missouri common law to warn the intended victim or communicate the existence of such danger to those likely to warn the victim including notifying appropriate enforcement authorities.

Bradley v. Ray, 904 S.W.2d 302, 312 (Mo. Ct. App. 1995).

If Rachel was being treated in California or Indiana, case law would see her as a risk to herself because she had already killed herself once. However, an argument could be made under the Bradley decision that Rachel poses a risk to her unborn child as a readily identifiable victim because of Rachel’s prior successful suicide, thus requiring reporting that a woman who returned from the dead is a danger to her unborn child.

All I know is I am glad the dead do not actually return to life with these very strange issues that our law does not contemplate.

What Are the Rules for Digging Up Dead People?

By

Josh Gilliland

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March 19, 2014

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If dead people were suddenly returning from the dead, there is no question there would demands for bodies to be exhumed to determine if the “returned” were who they claimed they were. Resurrection hit the issue head on in the second episode.

What are the requirements for exhuming a dead body?

It is long held precedent that a Court could order a body exhumed for evidence. Moss v. State, 152 Ala. 30 (Ala. 1907). This is true in “cold cases,” because there is no statute of limitations on murder.

California has the following requirements for exhuming a body:

No remains of any deceased person shall be removed from any cemetery, except upon written order of the health department having jurisdiction, or of the superior court of the county in which such cemetery is situated. A duplicate copy of the order shall be maintained as a part of the records of the cemetery. Any person who removes any remains from any cemetery shall keep and maintain a true and correct record showing:

(a) The date such remains were removed.

(b) The name and age of the person removed, when these particulars can be conveniently obtained and the place to which the remains were removed.

(c) The cemetery and the plot therein in which such remains were buried.

If the remains are disposed of other than by interment, a record shall be made and kept of such disposition. The person making the removal shall deliver to the cemetery authority operating the cemetery from which the remains were removed, a true, full and complete copy of such record.

Cal Health & Saf Code § 7500

The law does not want dead bodies disturbed without “substantial reason.” Courts consider such as “substantial reason” as the “public interest, the conventions of common decency, the wish of the decedent, and the prohibitions of religious law.” In re Terra (1952, Cal App) 111 Cal App 2d 452, 244 P2d 921, 1952 Cal App LEXIS 1676.

A child who died 32 years in the past and then returns to life with DNA that matches the deceased child’s parents would be a “substantial reason” for a Court to order a body exhumed. Knowing the truth would be in the public interest for determining parenthood, child custody and whether the reanimated person was who they claimed to be.

What Happens Legally When the Dead Come Back to Life?

By

Josh Gilliland

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March 16, 2014

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The ABC show Resurrection focuses on the emotional roller coaster of the dead returning to life. Highlighting the complexity of these issues, a child who was dead for over 30 years returns to life. A DNA test showed he was the biological child of his surviving parents. Do the parents have a legal obligation to provide for their once dead child?

The law is not designed for resurrection. Marriages end at death. Property is distributed. Funerals are held. Families discuss their thoughts on the afterlife. Sometimes there is litigation with family members who will never speak to each other again.

So…what happens if a dead person comes back to life?

We have a Common Law rule that a person “who has not been heard from for 7 years is presumed dead.” See In re Estate of Dawson, 346 So. 2d 386, 391 (Ala. 1977), Kyser v. McGlinn, 207 Ala. 82, 92 So. 13 (1921); Walker v. Walker, 218 Ala. 16, 117 So. 472 (1928); Eisenberg v. Stein, 222 Ala. 576, 133 So. 281 (1931);

In a New York case from 1900, a wife brought a lawsuit against an insurance carrier for payment of her husband’s $2,000 policy, nine years after he disappeared. The insurance company settled with the wife for $666.00, with the remainder to be held in trust in the event the husband was alive. Twelve days after entering the agreement, the long lost husband was found alive. Sears v. Grand Lodge A. O. U. W., 163 N.Y. 374 (N.Y. 1900).

The Court held the $666.00 had to be paid to the wife, as it was the basis of a settlement agreement that had been lawfully entered into to end the litigation. Additionally, the company planned to hold the remainder in trust in the event the husband was found alive. You cannot contract to end litigation and plan to pay out zero for a settlement. Id.

What legal lessons could we apply to Resurrection? First, marriages end at the death of one spouse (See, Cal Fam Code § 2201). As such, a dead person coming back to life would not reinstate a marriage (or invalidate a subsequent one), because the resurrected spouse had died, thus ending the marriage.

The same argument could be made for insurance policy payments. The insured met the contractual requirement of death, which obligates insurance companies to pay. The fact a person returns to the living after years of being actually dead would not invalidate performance under the policy. The condition for performance was met (death) and policies do not include provisions for the dead returning to life after decades.

Insurance company attorneys would demand a change to all future policies, requiring that in the event of an insured returning back to life, the policy distribution be repaid. Whether or not that would make insurance contracts illusory and not enforceable would have to be tested in Court. Statutes of limitations would also have to be examined.

The dead returning to life would require a fundamental change to our laws over marriages, insurance policies, property rights and inheritance. Society has not planned for resurrections happening, because the dead stay dead. We will continue to explore these issues as the series progresses.