This piece was first posted on “The Policy Think Site”
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Jay B. Gaskill, attorney at law, via e mail: firstname.lastname@example.org
WHATEVER HAPPENED TO THAT
Update: May 9, 2006
On retrial, Mr. Meiwes was convicted of murder, and sentenced to “life” in
Kudos to the German
legal system for rectifying an obvious
miscarriage of justice, using a review process unavailable in the U.S.
Of course, “life” in
prison means “a very long confinement”, possibly less than actual life
Still the German system
resulted in successfully fitting the (available) punishment to the crime. Congratulations are in order.
The background follows
in reverse chronological order….
the infamous torture-killer cannibal (see story below), who was given a short
prison term for a torture murder mislabeled as manslaughter, is now being
From a press report dateline FRANKFURT,
we now learn that the “Cannibal of Rotenburg”, who
ate and murdered a putatively “willing” victim, a man Armin Meiwes
solicited though an internet site, has won an injunction from the Frankfurt
Higher Regional Court
barring distribution of the English-language film, “Butterfly: A Grimm Love Story.”
The court ruled with Meiwes (who may hope to profit
later from a movie made on his own terms). The decision was based on the morally
questionable theory that the movie violated Meiwes’s
Since Meiwes was arrested in
December 2002, he has confessed to the lurid murder that took place in March
2001, and has willingly basked in the light of publicity. A more appropriate moral basis to enjoin the movie would be
to spare us from the spectacle of outright evil. But that would be …. wrong.
Update: January 19, 2006
the infamous torture-killer cannibal (see story below), who was given a short prison
term for a torture murder mislabeled as manslaughter, is now being retried
after a German appellate court agreed with the prosecution’s argument that the
evidence supported the greater offence. Of course
it was murder, in spite of the deranged victim’s alleged “willing
This outcome was ordered by the German reviewing
court because Mr. Meiwes’ bizarre and grisly crime
was committed to obtain sexual gratification.
The reality: The prosecution’s appeal succeeded on legal and moral grounds. The new Germany might not be regressing
to Weimar moral ambivalence after
all – at least not lately.
We can be grateful that the German court system
found a way to undo the earlier outrage.
An American court would have been unable to correct the mistake. We Yanks
are constrained by our constitutional limitations barring retrial for a greater
offense than the original conviction; when the same criminal transaction is
re-prosecuted, after a conviction on a lesser offense sharing common legal
elements with the greater offense, the retrial has been held to violate the
double jeopardy prohibition.
This grave miscarriage of justice (and moral
outrage) may yet be overwritten by a murder conviction and a life sentence.
The death penalty (highly appropriate in my
opinion for calculated murders imbued with overt, dangerous evil)
is not happening for Mr. Meiwes. The Europeans no
longer do that
-- at least not until the impact of their IIslamist sub-populations works a
The case, complete with Mr. Meiwes’
repellant video tapes, has (thankfully) been just a European media circus so
far. But Hollywood can’t be far
earlier comments about spreading moral ambivalence, and the moral deterioration
of the popular culture should not be confined to the continent.
© 2006 by Jay B. Gaskill
My earlier column follows below:
As it appeared in the February 7, 2004
About That German
Most news junkies already
know about the German cannibal, Armin Meiwes, convicted this month of manslaughter and given less
than eight years by a German Judge for a premeditated torture murder in which
the victim was actually conscious and videotaped for part of the butchery and
omit the details of Meiwes’ sickening conduct and ask:
Should society give any moral or legal weight whatsoever to the supposed “consent
of the victim” in this case (a man mentally disturbed enough to respond to an internet
invitation to be eaten)? To do so would be to sanction authentic evil.
evil is a problem for the “modern” mind in part, because the recognition of
evil requires an act of judgment, an increasingly difficult exercise for those
trapped in politically correct thinking. True evil entails the response of
implacable resistance, unambiguous condemnation, and relentless
opposition. These are not “PC”
responses. In any culture crippled by a
facile and fashionable ethos of political correctness, evil is not to be
Many writers have weighed in on this bizarre
case, blaming the German Jurist, mocking the defense arguments, and so on. No one seems yet to have fully gotten it. The
central problem is the law. Specifically, this horrid outcome was ordained
by German law, the product of a mindset weakened by moral ambivalence. This
dangerous social condition is eerily reminiscent of the Weimar Republic.
Contrast this with a healthier culture. As a California attorney, I believe the
following scenario would unfold had the cannibal murder been committed here:
(Penal Code 187, (a)) in the First Degree “perpetrated by lying in wait,
torture” or a “deliberate, premeditated killing committed in the
perpetration of, or attempt to perpetrate…mayhem.” (P.C. 189).
Circumstances in that “the murder was especially heinous, atrocious or
cruel” (P.C. 190.2 (a) (14),
Circumstances in that the murder was committed while the defendant was
engaged in…or attempting to commit” … mayhem. (P.C. 190.2 (a) (17) (J),
Circumstances in that the murder was intentional and involved the
infliction of torture.
first degree murder, alone, 25 years to life.
special circumstances murder, life without the possibility of parole or
death by lethal injection.
Two penalty factors that
a jury weighing a possible death sentence would be asked to consider:
circumstances of the crime…” (P.C. 190.3 (a))
or not the victim consented to the homicidal act.” (P.C. 190.3(e)).
On these facts, it’s a safe bet that most California juries, most of the
time, would sentence the cannibal to death.
Were the defendant somehow to escape substantial justice via a loophole
of any kind, it’s an equally safe bet that the California voters would race to
close that loophole.
Edmund Burke warned us that evil triumphs when
good people do nothing to oppose it. I
would add that evil tends to grow stronger wherever its worst manifestations go
unrecognized, excused or tolerated.
Jay Gaskill is the former Alameda County Public
Copyright © 2004, 2006 by Jay B.