Given the choice of choosing between human genius or human stupidity for someone being caused harm, you are almost always better off selecting stupidity.  That’s a truism, and it underlies the argument that, as a result of an unfortunate string of irresponsible and negligent actions by the MCC federal jail in New York City, accused pedophile Jeffrey Epstein was able to kill himself in custody.  However, “almost always” is not the same as “always”, and in this case logic, both legal and practical appears to point otherwise. 

At the very least, in investigating Epstein’s death, federal authorities should pursue the case not as an accidental death, but as murder.  Murder requires proof of intent to kill.  Ordinarily, a series of negligent actions that led to a suicide would rule that out, leaving the worst available potential charges against Epstein’s jailers some form of negligent homicide or manslaughter. 

But the law recognizes that in cases of extreme negligence (or recklessness) intent to kill can be imputed.  This theory is often termed “depraved heart murder.”  A textbook example of this somebody firing a gun into the air during a crowded celebration or other gathering.  A bullet comes down and kills someone in the crowd.  It doesn’t matter that the shooter lacked the direct intent to kill, his actions were so negligent that the law imputes it.

In the official version of the Epstein case, at least as has been made public, we have a virtually unbelievable string of irresponsible and negligent actions by MCC authorities leading to the suicide. It goes as follows:

• On July 23, Epstein was found with injuries leading authorities to believe he had attempted suicide or been attacked -- authorities assumed the former.
• He was placed on suicide watch but taken off it only six days later, and authorities failed to follow other procedures standard in such circumstances.
• Epstein was supposed to be assigned a cellmate, but his was quickly transferred.
• He was supposed to be monitored every 30 minutes but was not.
• The guards assigned him were not regular correctional officers, and they were overworked, tired, and supposedly fell asleep.
• Despite Epstein’s high profile there were no video cameras observing him.
• Despite what authorities assumed was an earlier suicide attempt, he was given ordinary prison clothes and bedding, which he could use to hang himself.
• He was also placed in a cell with a high bunk bed, also creating a danger he could use it to hang himself, which according to authorities occurred.

This alleged string of negligent actions is sufficient to impute a kind of murderous recklessness if true and ought to be investigated as such, at least as a starting point.

The problem, though, is that while human stupidity and fallibility know few limits, at times even here we must take pause.  Because to go back to our textbook example of depraved heart murder we must modify the example for the Epstein case, since Epstein was not an ordinary prisoner.  He was far and away the most high-profile prisoner in the unit, a man of substantial importance, and one who potentially might do many important people with whom he associated significant harm during the course of a long and difficult trial.

So getting back to our fellow shooting off his gun in a crowd, a better analogy is not just that the bullet hit some random person, but rather that it just happened to strike a guy to whom the shooter owed a lot of money, or had slept with his wife, or had done him some other wrong.  Because the string of negligent acts that resulted In Epstein’s death just happens to get rid of a person that a lot of important people clearly wanted to see dead.

Related to this is another oddity in the case, the nature of his critical injury.  A couple of bones fractured in his neck are not usually associated with suicidal hangings.  While not impossible, 75% of the time (and by some accounts more than that), those bones don’t fracture in a suicidal hanging of the kind Epstein supposedly carried out.  Thus, we have an unusual series of very negligent actions by authorities that by official account led to an unusual manner of death, to the most prominent inmate in the jail, whom many people wanted to see gone.  Those are long odds indeed.

So a murder investigation is not only appropriate, but must also account of these other factors, the unusual injuries, the inmate’s prominence, his celebrity, and the threat he posed to some of his former associates.  If the Justice Department and other federal authorities investigating this case do not proceed in this manner, that in itself would be negligent.