Did David Cash Have
a Duty to Rescue?
Finally, consider the following more recent case:
Nevada v. Strohmeyer (1998)
Jeremy Strohmeyer and David Cash, Jr. had driven with David's father to Las Vegas from their homes near Los Angeles, California. As the night turned to the early hours of the morning, the young men played video games at the Primadonna Casino. A seven-year-old girl, Sherrice Iverson, was also playing in the game room, while her father gambled in the casino. Sherrice, while playing with another young boy, was throwing wet, wadded paper towels, when an errant shot hit Jeremy Strohmeyer. Jeremy turned toward the little girl and began playfully chasing her. Video security cameras display the two playing around the game room. Sherrice then ran into the women's restroom and began to get more wet paper towels to throw at Jeremy.
David Cash, Jr., Jeremy's best friend, followed Jeremy into the restroom, and watched as they threw paper towels at each other. David then saw Jeremy pick up the little girl and take her into a toilet stall. David walked over to the next stall and looked over the door to see what his friend was doing. Jeremy had Sherrice pressed up against the wall with his hand over her mouth, muffling her screams. Jeremy told Sherrice to shut up or he would kill her. David maintains that he never saw Strohmeyer actually sexually molest the girl, but that he tapped Jeremy in the head and gave him a look as if he should not be doing that Jeremy just looked back at him with a blank stare and David felt it was time to for him to get out of there.
Tapes from the video surveillance cameras showed David Cash leaving the restroom about two minutes after he walked in. He waited outside for over twenty minutes for his best friend, Jeremy. His best friend walked out, looked at David Cash and said, "I - I killed her." The two boys immediately left. They spent the rest of the night at other casinos, playing slot machines and riding roller coasters, before returning to California.
Jeremy Strohmeyer was arrested and charged with first-degree murder. He pled guilty to the crime and received life in prison without the possibility of parole. In his statement to the court he expressed remorse and blamed his friend, David, for not stopping the attack. David Cash, Jr., has not been charged with any crime. According to Nevada prosecutors, he has committed none. Merely witnessing a crime is not a crime in itself. There is no law against the failure to report a crime in Nevada. So-called "Good Samaritan" laws have only been enacted in a handful of states.
Sherrice Iverson Murder Story and Photos:
Undoubtedly, David Cash was in a position to stop the assault and murder of Sherrice Iverson. He could have pulled his friend off of her or summoned the nearby casino security guards. He could have stopped the attack with little or no risk to himself. But he chose not to do so. There is no question that his decision to remain uninvolved while his friend sexually assaulted and eventually murdered a little girl was morally reprehensible, but was his failure to act in anyway illegal? Did his failure to rescue or warn constitute a violation of a legal duty. Might the reasoning used in either Tarasoff or Farwell v. Keaton or in other duty to rescue cases be used somehow in Cash's case? What case might be made against him?. In talking about the incident afterwards, Cash did little to bolster his case. On a Los Angeles radio program, he expressed no remorse for his actions,
"How much am I supposed to-to sit down and cry about this? I mean... let's be reasonable here. Is my life supposed to halt for-like, for days, weeks and months on end? The simple fact remains, I do not know this little girl. I do not know starving children in Panama."
When asked if the murder was on his conscience during a national television broadcast, Cash responded, "No, not to the extent that most people would want it to be." Cash's lack of remorse fueled the controversy surrounding his actions. Surely, any decent human being would stop the molestation and murder of a little girl if it were easily within their power.
What would you do in this case? Whose side are you on? David Cash's or the side of those who maintain that what Cash did was not a crime, and that even if he had witnessed the entire assault and murder, he could not have been charged. Recall the bystanders in the Kitty Genovese assault and murder, the bystanders in the bar of the tavern in New Bedford, Massachusetts which served as a model for the film, The Accused, and the photographers who continued to take pictures rather than call for help at the scene of Princess Diana's car crash in Paris. Is there anything, anything at all in previous "duty to rescue" cases that provide a handle on this case here, that offers a "way" to show that Cash has some criminal responsibility here, a legal duty of some sort that he breached? What is the best argument one might make against Cash and what is his best defense?
Then, whether your arguments are likely to carry the day or not, imagine that the Nevada legislature has decided to adopt a duty to rescue law, an "Iverson" law, as the media are now calling it. A special hearing has been scheduled to which you have been invited to give expert testimony for or against the adoption of this new law. Someone in the Nevada Legislature learned recently that you are a student at Brandeis. "A great university," this Nevada representative was rumored to have said. Rumor also has it that you are taking a class in Philosophy of Law with a Professor Teuber where you had discussed this very case as well as many others.
Obviously, there are many considerations that go into the drafting of a law and you are not expected to resolve all the minute particulars of wording, merely to weigh in on one side or the other, to say whether you think it is a good or bad thing to have such a law and to say, as best as you can, why you think the way you do as well as how you might repsond to someone on the other side who was, let's say, especially adept at making good arguments.
Vermont has enacted a Duty to Rescue Statute. VT. STAT. ANN, 12, 519 (1972), and Minnesota has adopted a similar provision, MINN. STAT. ANN. 604.05(1) (1984), as a part of its criminal code:
Any person at the scene of an emergency who knows that another person is exposed to or has suffered grave physical harm shall, to the extent that he can do so without danger or peril to himself or others, give reasonable assistance to the exposed person. Reasonable assistance may include obtaining or attempting to obtain aid from law enforcement or medical personnel.
What will you recommend at the hearing to which you have been invited?
Will you urge Nevada to pass legislation similar to Vermont's and Minnesota's? Why?
If not, why not?
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Elton John's Tribute to Diana, adapted from "Candle in the Wind"
"Ode to Diana, Lyrics by Bernie Taupin and Elton John