first published in Mesh Magazine #10, July/August 2005

Rex, SF Chronicle photograph by Deanne Fitzmaurice

WHERE IS THE BODY? UNDERSTANDING THE CORPUS DELICTI RULE

by Matt Gonzalez

SAN FRANCISCANS REACTED WITH shock over the death of Nicholas Faibish, a 12-year-old boy, who was recently killed by pit bulls at his home while his mother was away running errands. Nicholas’s body was found lifeless in a bedroom with bite wounds, severe facial injuries, and a hole in his scalp. Everything suggested it was an accidental death due to the aggression of a breed of dog known to act unpredictably under certain circumstances.

Experts initially posited that the Faibish family’s well-behaved dogs could have attacked Nicholas because they were agitated by the family’s impending move and the absence of the dominant head of the household (Nicholas’ father had already gone to Oregon to prepare for his family’s arrival). This agitation may have been exacerbated by the fact that the dogs were not neutered and spayed. The boy’s mother, Maureen Faibish, attributed the dogs’ violence to the boy’s possible interruption of the pit bulls mating. The male dog Rex had been acting possessive of the female dog Ella, who was in heat.

The decision to charge the boy’s mother with felony child endangerment, and the added enhancement that her actions resulted in death, was largely due to the statements Maureen Faibish made to the press in the days following her son’s death. According to these reports, what initially looked like an accident could have been prevented.  Nicholas had apparently been bitten by the male pit bull, Rex, earlier in the day.  Faibish didn’t want to leave the boy in the company of the dogs while she left the house to run errands – but the boy didn’t want to accompany her. Ultimately, she decided to leave him in a basement playroom with a shovel propped up against the door so that he wouldn’t be harmed by the dogs.

While her intentions may have been good, one must, of course, question her judgment as described in press accounts. The principal question now is whether prosecutors will be able to use Maureen Faibish’s statements against her in court.

Corpus delicti (Latin for “body of the crime”) is an evidentiary rule that requires the prosecution, in a criminal case, to produce evidence that a crime has been committed before the statements of an accused can be admitted as evidence of guilt. In essence, the law requires police to establish that a crime occurred independent of any statements made by the accused.

The rule’s origin traces to 17th century England and a series of cases where innocent people were executed after confessing to crimes that had not actually occurred. In one, the police repeatedly interrogated John Perry, the servant of a man who had disappeared under mysterious circumstances.  Under pressure he confessed to killing William Harrison and dumping his body in a swamp.  Although the authorities never found a body, Perry was executed entirely on the strength of his own confession.  Some years later, however, Harrison returned home and explained that he had been kidnapped and sold into slavery in Turkey.

In the United States, the Vermont Supreme Court was the first to adopt the corpus delicti rule in response to a situation similar to that in the Perry case.  In 1819, the court had convicted two brothers of murdering a man based entirely on their confessions, and had sentenced them to death.  Their confessions were obtained only after police insisted that a confession was their sole hope of avoiding the death penalty.  Only due to the extraordinary, post-conviction diligence of the brothers’ lawyer was the “murder victim,” Russel Colvin, found alive and well in New Jersey.  The corpus delicti rule was then adopted to prevent the tragedy of the Perry case from occurring on this side of the Atlantic.

California Courts allow the corpus delicti to be proven with circumstantial evidence, but the inferences may not be speculative or based on conjecture. The justification for the rule most often cited by the California Courts is the need to encourage proper law enforcement procedures and the unreliability of confessions and other out of court statements often obtained by coercive means. This later point is clearly illustrated in the historical cases noted above. In California, not only does a judge make the determination, but the jury is also instructed on the corpus delicti rule and can vote to acquit based on the failure of the prosecution to offer independent evidence of the crime.

In the aftermath of Nicholas Faibish’s death, many spoke in favor of the pit bulls. The dogs were known to be extremely friendly and spent most of the time in the house and even slept with the children. They were known to wake up family members by licking their faces. The dogs had no history of violence.  In fact, the worst comment that anyone made about them was that they were sometimes rambunctious and poorly trained. A veterinarian who had treated the pit bulls at a nearby animal hospital said his staff had never had any bad experience with them.

Police only learned that Faibish had decided to separate her son from the dogs by a door she had secured with a propped shovel because she told them about it. Most damning perhaps was her admission that “typical Nicky” didn’t obey her, a statement which conveyed that she should have known Nicholas would disobey her and put himself in danger.  This of course, was all the more reason not to handle the situation with her make-shift door stop.

In the seminal California case on corpus delicti, In re Flodstrom ((1954) 134 Cal.App.2d 871), the court considered the admissibility of a defendant’s out-of-court confession to having smothered her baby. Shirley Flodstrom confessed to killing her infant son by cramming a pajama sleeve into his mouth with her fingers. The police officer who first arrived at the scene did not notice any signs of violence or anything amiss, and the death appeared to be a natural crib death. He did see that one sleeve of the pajama was damp and had two small blood spots on it, suggesting that the child may have choked on his own sleeve or that the sleeve came in contact with the child’s mouth at or about the time of death. Citing a lack of independent evidence to prove a death by criminal agency, the court granted the writ of habeas corpus and ordered Flodstrom released from prison.

In Maureen Faibish’s matter, putting aside her statements, there appears to be a paucity of evidence suggesting “criminal agency”. Merely leaving her son with the dogs would not have given rise to prosecutorial interest, particularly if there was no evidence the dogs had previously acted violently.

Both parties to the Faibish litigation probably have evidence that sheds light on the applicability of the corpus delicti rule. Nevertheless, this matter, as it currently stands, affords an opportunity to understand one of the enduring concepts of the common law and the underpinnings upon which our democracy is founded. The case could very well test the status of California’s corpus delicti rule. And while the dismissal of a criminal action is difficult, especially in a case where the public, in all likelihood, knows what really happened, we must remember that these dismissals help make our society free, safeguard our liberty, and preserves the integrity of the criminal justice system.