9 Without Prosecutors, There Would Be No Crime

We do not normally ask professionals themselves whether they believe that their behavior "crossed the line." But they were there, perhaps they know more about their own intentions than we can ever hope to gather. Perhaps they are in a better position to say whether substance abuse played a role, or whether the procedures that they violated were workable or correct or available. And whether they knowingly violated them or not. Yet we don't rely on insiders to give us the truth. After all:

• we suspect that those people are too biased for that;
• we reckon they may try to put themselves in the most positive light possible;
• we will see their account as one-sided, distorted, skewed, partial—as a skirting of accountability rather than embracing it.

To get a truthful account of what happened, we do not typically listen to the people who were there, even if we do sometimes give them a voice (like we do in a trial, for example).

The View from Nowhere

So, again, the central question keeps coming up: Who gets to decide instead? Is there a perspective that is not biased? A perspective that is impartial, neutral? We often turn to our legal systems for this. We expect a court to apply reason, and objectivity, and come up with the real story, with the truth. And then hand out consequences for those responsible for the outcome. From a distance, it may well come across this way. A disinterested party takes an evenhanded look at the case. The appropriate person gets to be held accountable. Appropriate consequences are meted out. Truth and justice are served.

The legal system certainly goes to great pains to show as if it is impartial. Many of the trappings of the justice system are designed to impart an image of rationality, of consideration, of objectivity and impartiality:

• Think, for starters, of Lady Justitia's blindfold—the very profile of neutrality.
• The pace of judicial proceedings is measured, the tone solemn.
• The rules of proceedings are tight and tightly controlled.
• The uniforms and settings and language invoke a kind of otherworldliness, of not exactly belonging to the daily, messy hubbub of the real world out there.
• Even the buildings are often designed so as to be set apart from the rest of the world: just imagine your own local courthouse. It is probably separated from the sidewalk by gates, lawns, forecourts, high steps.
• The judges are often behind enormous doors, seated at a distance from other people, on podia, behind solid desks, under high ceilings.

Does this symbolism and imagery, this elevation and separation—meant to offer the assurance of rationality and impartiality—really give a court a better, more neutral view of the truth?

There is no view from nowhere

Telling the story from an objective angle is impossible, no matter how objective, disinterested, unbiased you may think you are. Or how neutral we make Lady justitia look with her blindfold. Just ask yourself, if you were to take an objective look at the world, from where would you look? An objective view is a "view from nowhere."¹ And there is no view from nowhere, as there would be nobody to form the view.

So no view can be neutral, or objective. Because no view can be taken from nowhere. This means that all views somehow have values and interests and stakes wrapped into them. Of course, we can try to control the influences of those values and interests. And the legal system has great traditions and symbols and rituals to do just that. But in the end, nobody can discover or generate a value-free truth. Judges are stakeholders in the healthcare system too. They may be consumers of it, after all. And they have a larger role: Helping maintain stability, and confidence in a society's institutions:

In the Xylocard case from the Prologue, the Supreme Court admitted that its agenda was in part to reassure any disquiet about the safety of the healthcare system: "Concern for patients' safety and their confidence in the healthcare system, demand that the nurse's actions be seen as so clumsy that they imply culpable negligence. She therefore cannot avoid being responsible for manslaughter."² The maintenance of "confidence in the healthcare system" demanded the construction of a version where one anti-hero could be singled out to receive the blame, to bear the explanatory and moral weight of the infant's death.

For a court to find an offense, and to call it criminal, is not the product of blind arbitration. It is not the clearest view on things from an objective stance. It is not the cleanest, truest rendering of a story. Instead, it is the negotiated outcome of a social process. And as such it is not much different (if at all) from any other social process, in how it is influenced by history, tradition, institutions, personal interactions, hopes, fears, desires.

To Get to the “Truth,” You Need Multiple Stories

Recall from the Prologue bow the justices were struggling to divine what the medicine cartons were all about, what the strange names and figures meant. And recall from Chapter 2 bow the pilot tried to show to the court that configuring the airplane for approach took more time than had been available—and nobody cared. While the professionals on trial doggedly searched for ways to get "the truth " out, it never would.

Multiple versions competed and contradicted each other, but many of them seemed equally valid. All illuminated different aspects of the case. In the Xylocard trial, the pediatrician had a point: His repeated bolus doses of Xylocard into the baby could not be judged in light of the fact that the baby was already getting ten times the prescribed dose through her drip. He could not have known that, after all. The nurses had a point too: Ordering bolus dose after bolus dose, with only worsening effects, and without ever having established a diagnosis for the baby's condition, did not make perfect sense. Settling for only one version amounts to an injustice to the complexity of the adverse event that the nurse was on trial for.

Similarly, the captain had a point: It was the airline, its image, production pressures, and routine dispensations to as yet unlisted doctors and unqualified co-pilots that helped box him in. But the other side had a point too: Why had this pilot not voluntarily contributed to learning and improvement after the incident?

This implies that forcing one story onto other people as if it were the true and only one (like the justice system sometimes does) is actually quite unjust. Just like the cubists try to paint multiple perspectives at the same time, a just culture always takes multiple stories into account, because:

• telling the story from one angle necessarily excludes aspects from other angles;
• no single account can claim that it, and it alone, depicts the world as it is;
• innumerable stories are possible, and, if you want to be "just," or approximate the "truth," a number are even necessary;
• also, if you want to explore as many opportunities for safety improvement as possible, you probably want to listen to as many stories or angles as possible. The world is complex—live with it. And learn from it what you can.

A colleague in healthcare told me how he believed that some acts are objective, self-evident, or even unarguably criminal—murder of a patient for example, or adverse events involving substance abuse by the provider (a doctor being drunk on duty), or deliberately unsafe acts. He told me the story of some nurses who substituted diuretic tablets for pain relieving tablets as a prank to make patients demand urine bottles from the night staff. These were egregious acts, he said. Criminal acts. That could only be dealt with through discipline or other legal forms.

I am in no position to say that these things are not crimes. But what I find interesting is how we come to give the acts meanings as crimes, committed by these individuals at that moment. Seeing these acts as criminal can rule out or obscure a host of other factors that may once again trigger other people to behave similarly "criminal." When it comes to doctors deliberately murdering patients, for example, this raises a host of questions about access control to the profession (is there a psychiatric evaluation to become a doctor? To become an airline pilot there is. Are there regular proficiency checks for doctors practicing on their own? For pilots there are). Drunk or stoned doctors raise questions about working hours (36-hour shifts, 80+hour weeks) and the effects on their personal lives. Playing a prank on the night staff at the cost of patients raises questions about organizational staff disputes that are left unaddressed, and about the ethical awareness of the staff involved.

Yes, through the eyes of a lawyer or prosecutor, these acts may well look like crimes. The language of "crimes" is one that would seem to fit the acts above quite well. But that is not necessarily the only language in which we can talk about things like the ones above. Or do something about them. Even these "crimes" can be constructed as different things:

• as societal or professional trade-offs (we make our doctors work long hours in part because healthcare is hugely expensive already, and we trust them to remain healthy, alert, and self-responsible once we license them);
• as managerial issues (simmering inter-departmental or crossshift conflicts are not resolved early enough through higher-level intervention);
• as pedagogical ones (ethical training for staff).

Again, I am not saying (because I can't) that one interpretation is better or more "right" than another. I am only saying that different interpretations are possible. And all interpretations have a logical repertoire of action appended to them:

• a crime gets punished away;
• a pedagogical problem gets taught away;
• an organizational problem gets managed away.

See only one interpretation and you may miss other important possibilities for progress on safety.

There is never one “true” story

Perhaps we should give up trying to dig out the "true" account of a failure altogether. As soon as you make such a claim, somebody will come around and point to "untrue" elements in your story. Or missing parts. Or misconstrued parts, or mischaracterized ones, or underemphasized parts. Trying to tell a story from the perspective "from nowhere" is impossible. As soon as anybody starts describing what happened and what went right or wrong in that story, that person is already using his or her own language, thereby inevitably importing his or her own values, interests, background, culture, traditions, judgments. The courts may have laid a claim on an objective account of a professional's actions. But from the professional's perspective (and that of almost all their colleagues) that account was incomplete, unfair, biased, partial. Remember, in trying to build a just culture, what matters is not getting to a true or objective account of what happened. That is not where the criterion for success lies.

Consider the following story, from the first book of what today is the Hebrew bible (Genesis 19). In this story, a man called Lot is visited by two messengers. They tell him that the city in which he lives, Sodom, is going to be destroyed. "Run, run for your life! Don't look back, don't stop anywhere on the plain. Run to the mountains, lest you be swept away...!" Lot grabs his two daughters and his wife and makes a beeline for the countryside. His two sons-in-law and other family all dawdle and do not make it out in time.

Then disaster strikes. Fire and brimstone rains down on the city of Sodom and on Gomorrah. The cities get overturned and all their inhabitants are burnt, even the vegetation is. Lot's wife looks back, and instantly becomes a pillar of salt.

Lot and his two daughters keep moving. They go up to the mountains outside the town of Zoar, because they fear staying in Zoar. So instead they camp in a cave, Lot and his two daughters.

There, the older daughter says to the younger, "Our father is old and there is no man in the land to come into us in the way of all the world. Let us get our father drunk with wine and sleep with him, that we may quicken with our father's seed."

So they get their father drunk with wine that night and the elder comes and lies with her father. He doesn't know of her lying down or her getting up. The next day the older tells the younger, "Last night I slept with my father. Let us get our father drunk with wine tonight too. You will come and lay with him so you may quicken with our father's seed."

So they get their father drunk with wine that night, too, and the younger got up and lay with him. He doesn't know of her lying down or her getting up. The two daughters of Lot become pregnant from their father. The elder bears a son, whom she calls Moav. He is the ancestor of the Moabites to this day. The younger also bears a son and calls him Ben Ammi. He is the father of the Ammonites of this day.

Suppose the author of this piece of Genesis had told us the story in another way. Suppose the story had told us how Lot, desperate and lonely in the cave, locked up with two helpless and freshly widowed putative virgins. How he forced himself onto his daughters several nights in a row. We may have ended up with acts that were so bad, so morally reprehensible as to amount to "real" crimes. We would have had statutory rape. We would have had incest.

You could even argue that such a story could have been more believable. I mean, how plausible is the story as told in Genesis? Here's an old man, who would have been more than a bit pre-occupied with recent bad experiences, like losing his wife, his house, his town. Enough to keep an old man awake and a bit distracted. But he seems to sleep just fine. In fact, he sleeps so deeply, as though he's lost to the world. Supposedly so drunk that he doesn't remember anything of the night. Yet his daughters are capable of tricking him into sexual performances to the point of impregnating them? Twice in a row? While he is essentially unconscious?

But we don't read that Lot raped his daughters. We don't read that Lot committed incest. Instead we read of a plot hatched by the elder daughter, a plot that, we might believe, has a morally justifiable goal: Preservation of family lineage after a calamitous interruption that took the men folk out of the ranks and left the remaining women with few prospects (though one might think the town of Zoar wasn't too far). This was perhaps not so strange in a society where family name and tribal affiliation were central to asset ownership and even survival, and where childlessness was a stigmatizing burden.

Whether a crime was committed, then, depends on how the story is told. Even more, it depends on who gets to tell the story. Sutherland's work on white-collar crime, 60 years ago, pointed out that white-collar "crimes" often go under more innocent names such as "fraud." This is possible because they typically violate financial or economic or scientific norms, and inflict no direct bodily harm. There is a difference in punishment too, with fraud generally carrying much lighter sentences than the acts the same society decides to call "crimes." The question here too is, who gets to say what is what? Sutherland suggested that the difference in naming as well as the difference in sanction afterwards are a consequence of the differential power in society of the populations who commit the different kinds of crime.

This might go for Lot too. Lot was a man. Men generally had more power, more say at the time. And indeed, you may assume that Lot's story was told by a man, not a woman, certainly not one who was young, deeply traumatized, and recently widowed (because then we would likely have heard quite a different story). So what we need to ask is this: If we get somebody to tell the story, and his or her story gets to be the canonical account of the event, whose voice or voices are we not hearing? Who gets sidelined, marginalized, repressed, ignored? Whose view, whose experience is not represented?

A patient died in an Argentine hospital after the use of an experimental U.S. drug, administered to him and a number of fellow patients. The event was part of a clinical trial of a yet unapproved medicine eventually destined for the North American market. To many, the case was only the latest emblem of a disparity where Western nations use poorer, less scrupulous, relatively lightly regulated medical testing grounds in the Second and Third World. But the drug manufacturer was quick to stress that "the case was an aberration" and emphasized how the "supervisory and quality assurance systems all worked effectively." The system, in other words, was safe—it simply needed to be cleansed of its bad apples. The hospital fired the doctors involved and prosecutors were sent after them with murder charges. Calling something murder, in this case, was a choice too. A choice of those with vested interests to protect. A choice of those who had the power to impose their version of events on other people, the version favorable to them and their goals.

Again, whose voices are we not hearing? What other possible perspectives or stories about these deaths are being brushed under the carpet? What are we not learning by labeling these cases as "murder"?

Which Perspective do We Take?

If you go to the Louvre in Paris, you may find a painting by Theodore Géricault. It's hard to miss, because it's big. Its size, some five by seven meters, is almost overwhelming, sucking you into the ugly real-life scene it depicts. It is called La Méduse, or The Raft of the Medusa, and it is a report of a serious accident. An accident report—in a painting. Here is what it shows. Perched on a raft, piled one on top of another and on the remnants of some supplies, are 15 people. Some sitting, some sprawling, scattered about the beams. Some are denuded, some in tattered clothing. The raft is adrift on a rough sea, a foamy and angry deep green, waves are rolling in, rolling over the raft. And far, far away, on the horizon there may be a glimpse of something—a rescue ship maybe? One of the survivors has clambered on top of the rubble and on other people and, his arm outstretched, is waving a rag, frantically it seems. The painting shows the man from behind, as if we too are to be hopeful and desperate at the same time, peeking across the raft toward a possible rescue. Who are these people, so emaciated, so close to death? You look at this scene, at the desperation, the destruction, and you can't help but wonder: How did this happen? And you probably ask: Who is to blame? Whose fault was this?

The raft is a remnant of the French Navy frigate La Méduse. On the 17^th of June 1816, La Méduse sailed in a small convoy from Rochefort, headed for St. Louis in Senegal, which the French were going to formally take over from the British. It was carrying 400 people, of whom more than 200 were passengers, including the newly appointed French governor Schmaltz of Senegal. Schmaltz wanted to reach Senegal as quickly as possible. You wonder about his motives, but the man may simply have been eager to claim his new dominion and prevent the British from getting second thoughts. Taking the direct route to Senegal would mean skirting the coast of Africa closely, a coast where, in various places, land and sea endlessly merge into one another, with many sandbars and reefs. La Méduse was the fastest ship of the convoy and she quickly lost sight of the trailing vessels who were opting for routes farther out to sea.

Commanded by Captain de Chaumareys, and aided by an impromptu navigator (a philosopher named Richefort, who was a member of the Philantropic Society of Cape Verde, an organization dedicated to exploring the African interior), La Méduse sailed toward ever shallower water, heralded by white breakers and mud in the water. A lieutenant took it on himself to take soundings off the bow, and, measuring only 18 fathoms (about 30 meters), he warned his captain. Realizing the danger, de Chaumareys ordered his ship turned into the wind, but it was too late. La Méduse ran aground on the Bank of Arguin, 50 kilometers off the coast of Mauritania. The accident happened during Spring high tide, leaving few possibilities to float the ship again as each subsequent high tide would be lower than the previous one. De Chaumareys also refused to dump its 14 cannons overboard (each weighing three tons).

Plans were made to take everybody to shore with the ship's launches, which would have taken two trips, stretched over a number of days. An alternative idea quickly took shape. It was to build a raft on which the ship's cargo would be offloaded so that La Méduse could be floated again. The raft was constructed from masts and crossbeams, measuring 20 meters in length and seven meters in width and nicknamed La Machine by the crew.

But on 5^th of July, a gale developed that threatened to break up La Méduse. De Chaumareys decided to immediately evacuate the frigate, with 146 men and one woman boarding the woefully inadequate raft, which was to be towed ashore by the lifeboats of La Méduse. The raft had few supplies and no method of navigation or steering. Much of its deck was under water. Seventeen men decided to stay on La Méduse. The rest boarded the lifeboats. They quickly realized that towing the raft was a hopeless endeavor, and began to fear that they would be overwhelmed by its desperate survivors. The raft was cut loose, leaving the 147 occupants adrift. Those in the lifeboats made it safely to the coast of Africa, with most finding their way overland to Senegal, though some died on the way.

Conditions on the raft quickly became wretched. Among the few provisions were casks of wine instead of water. Different factions developed, with officers and passengers in one, soldiers and sailors in another. Fights broke out. On the first night, 20 men lost their lives either through suicide or murder. Stormy weather kept threatening and people continually scrambled to get to the center of the raft. Many were pushed or washed overboard in the scuffles.

After four days, fewer than half the survivors were still onboard. Rations, such as they were, were dwindling rapidly, and some people resorted to cannibalism. On the eighth day, the fittest began throwing the weaker and wounded overboard until only 15 remained. On thel7^th of July, they sighted one of the ships in the original convoy. It disappeared over the horizon, plunging the survivors into profound gloom. The ship reappeared two hours later, however, and they were finally rescued after 13 days adrift. Five of the survivors died within days.

Henri Savigny, the surviving surgeon of La Méduse, submitted his account to the French authorities only a few months after the shipwreck. It was leaked to an anti-Bourbon newspaper, le Journal des Débats. Together with Alexander Corréard, a geographer, he then wrote a book about the case. It became a hit, going through five editions within the next years, and was translated into English, German, Dutch, and Italian. With every edition, the message of the book became more political. A scandal became unavoidable, one heavily drenched in French politics. In 1815, Napoleon had been defeated at Waterloo and exiled, allowing the restoration of the Bourbon monarchy which had been terminated by the French Revolution of 1792. Its restoration brought the imperative to reward loyalists and populate key positions with confidantes. Viscount Hugues Duroy de Chaumareys was one of them and, after requesting a naval post from the King's brother, he was given the command of La Méduse. At 53, he had hardly been on a ship in the preceding 25 years, and had never commanded one, instead working as a customs officer.

In 1817, de Chaumareys was court-martialed. He was found not guilty of abandoning his ship, nor of failing to refloat his ship, nor of abandoning the raft. He was, however, convicted because of incompetent and complacent navigation and of abandoning La Méduse before all passengers had been taken off. The verdict could have led to the death penalty, but he was given three years in prison—a whitewash according to some. A year later, Governor Schmaltz of Senegal was forced to resign. The Gouvion de Saint-Cyrl law later ensured that appointments and promotions in the French military were more merit-based than before.

Inspired by stories of the shipwreck and the subsequent scandal, Theodore Géricault, a 25-year-old artist, decided to create his own depiction of it. His painting shows the moment that was recounted to him by one of the survivors: Just as the rescue ship was disappearing over the horizon. Whatever had not yet been told in Le Journal, the Savigny-Corréard book, or any of the other stories swirling around the shipwreck, was now on full display in picture-perfect form: A monumental disaster with a bad aftermath, a painting that in itself formed an indictment against a corrupt, insider Monarchist establishment. Géricault's painting tells one story. For sure a valid one: The desperation and anxiety on part of the few survivors must have been all too real for them. But again we need to ask: Whose version of the events is not seen here?

Suppose Géricault would have created a painting in which brave officers and passengers are valiantly trying to tow the raft, but in which the raft's occupants are looming over them, depicted as numerous and livid, as sinister and menacing, threatening to overwhelm the launches and lynch or scuttle anybody still on them. Such a painting could tell a story from the point of view of the occupants of the launches. It may well have inspired sympathy with them and their plight, and perhaps even supported public understanding for their decision to cut the raft loose.

Similarly, a painting that would have given prominence to the gathering storm that prompted De Chaumereys to order the abandonment of La Méduse could have helped explain that decision and made it look less culpable. The culpability arises in part because of hindsight: De Chaumereys later went back to the shipwreck to try to recover the gold that was believed to be still on board (as well as a few survivors who had decided to stay behind). To his probable surprise, La Méduse was still intact, despite the storm. In hindsight, the decision to abandon ship was unwise, perilous, premature.

A painting that shows the actual moment of that decision, with a really bad storm about to barrel down on the stuck ship, could have helped set it in context and make De Chaumereys look a lot better. Details about his life, in which his monarchist affiliation had made it impossible for him to attain a naval post and in which not having sailed in 25 years was not a condition of his own making, could gain greater notability there too. It wasn't that he was uniquely unqualified for the job, rather, he had been denied the possibility to exercise it for a while because of contemporary political configurations.

Again, whether a crime was committed depends on how the story is told, and on who gets to tell the story. De Chaumerays may have gotten a tough treatment in Géricault's depiction of the aftermath of his decisions. Those in power, or legitimated by society, to decide whether his behavior amounted to punishable crimes, however, came to a different conclusion. In their story of the events, he was found not guilty of the most incriminating counts, and punished mildly for the remaining lesser accusations. De Chaumerays' royalist dedication would probably have not hurt here in a country once again under the reign of a Bourbon. Was a crime committed, and if so, which acts constitute enough badness to amount to a crime? Well—who gets to say? Who gets to tell the story?

The “real” story of what happened?

Géricault certainly tried to tell the "real" story of what happened. His portrait of La Méduse was an important installment in the development of the Realist school of art, a school concerned with depicting accurately and objectively the scene or event. Realism departed from Romanticism in deliberately rejecting subjects that were made to look more beautiful, wistful almost, than they could ever be in real life (like the King regally sitting on his horse in full ornamentation). Realism also dealt with subjects deemed inappropriate to nineteenth-century sensibilities (the nudity in Géricault's painting would have added to its shock value). Realism took off in the nineteenth century in France, with, for example Gustave Courbet. It tried to capture the "real," the sincere, the ugly, unsentimental, and unidealized version of contemporary life.

The aim may be sincere, and a welcome departure from the deliberately dressed-up, beautified, embellished versions of a subject of painting or writing. But with the commitment to show how things "really" were, comes epistemological arrogance. Who is to say that this is "really" how it was? How do you know? And if one depiction is supposed to be the real one, are we to conclude that all other depictions are false? One person shows the truth, all others are liars?

Realist paintings such as Géricault's succeed only in capturing one moment, from one angle. An angle on a scene reveals something, for sure, but it hides even more. Each perspective discloses and obscures at the same time. Somebody paints an accident scene at one moment, from one perspective, and all other perspectives and moments are lost. You don't know about them, you don't hear them, you don't see them.

Early twentieth-century schools in art like cubism, in a reaction to this, tried to capture multiple perspectives simultaneously. They used geometric shapes, collage, or interlocking planes, Picasso and Cézanne being the obvious exponents. Cubism rejected the notion that we can only represent reality from one single viewpoint at a time. It challenged the assertion by Realists that they could "accurately" and "objectively" depict an event or a scene. Such supposed accuracy and objectivity again implies epistemological hubris, as if some people have privileged access to the "real" account, the objectively "true" one, and that they are therefore entitled to impose that on other people too.

Rhetoric: The Art of Persuasion

La Méduse is a persuasive painting. The images in it seem to say: Look, here is what happened, here is the unvarnished, ugly truth. It is rhetoric, something we normally associate with words, but in this case it is rendered in brushstrokes. In the West, we have all learned that factual evidence, expressed plainly and clearly (as was indeed the ambition of the Realist school, and is in much of our scientific and judicial traditions) is the most convincing form of knowledge. Much more so than pretty arguments, or nice stories, or emotional appeals, or psychological trickery. Facts speak for themselves; just look at La Méduse. See what happened? See how bad this is, how morally reprehensible? How criminal?

This view assumes that a phenomenon like a crime is real, that an act that is factually criminal, is inherently criminal. From this view, crime is more than simply telling or painting the story one way and not another. Crime represents an identifiable form of behavior caused by an identifiable set of mechanisms and factors (there may be violence, the uncontrolled release of energy, other people getting hurt as a result). Crime is not the contingency of who gets to tell about what happened. Crime has unavoidable material features that cannot be defined away. In other words, the act has the immutable identity of a crime. It doesn't matter who commits it, or where or when, or under what duress, and it certainly doesn't matter who gets to tell the story about the act. A crime is a crime, no matter how you describe it, or who gets to describe it. And, while at it, a criminal is a criminal. He or she doesn't get made into one by the descriptions of other people around him or her.

From this position, Lot was a serial rapist. From this position, De Chaumereys was an incompetent, unqualified moron. Fie was that before the trip of La Méduse, during the trip, after the trip. He weaseled his way into the job, consistent with who he was. And during the trip, he predictably engaged in something that was criminally negligent, also consistent with who he was. Turning him into a criminal is not the result of a label that other people put on him. It is something he himself did, or even was. Similarly, from this perspective, the pilots in the previous chapter were unprofessional, and really did engage in willful violations. The pharmacist really did commit something criminal when he didn't double-check the lethal solution prepared by his lab tech.

But the compelling question, raised by Lot and the Argentine doctors and La Méduse is still: Who gets to tell the story? And how and when does its content and tone amount to a story of a punishable crime? Remember, Géricault might have chosen to paint another angle, another moment of the whole event and the supposedly criminally negligent aspects of De Chaumereys or his actions may have dissipated. And who got to describe the act so that it became a crime (Géricault; the drug company doing its trials in Argentina)? Or, for that matter, who got to describe the act so that it didn't amount to a crime (Lot)? The focus from this position is not on who committed a so-called crime, but on who called it so.

From this point of view, the properties of a crime are not objective and independently existing. Culpability arises out of our ways of seeing and putting things. What ends up being labeled as culpable does not inhere in the act or the person. It is constructed (or "constituted," as Christie put it) through the act of interrogation (p. 10):

We would think that culpability, of all things, must make up some essence behind a number of possible descriptions of an act, especially if that act has a bad outcome. We seem to have great confidence that the Various descriptions can be sorted out by the rational process of a peer-review or a hearing or a trial, that it will expose Christie's "psychiatric, pedagogical, theological" explanations (I had failure anxiety! I wasn't trained enough! It was the Lord's will!) as patently false. The application of reason will strip away the noise, the decoys, the excuses and arrive at the essential story: Whether culpability lay behind the incident or not.

But the same unwanted act can be construed to be a lot of things at the same time, depending on what questions you asked to begin with. Ask theological questions and you may see in an error the manifestation of evil, or the weakness of the flesh. Ask pedagogical questions and you may see in it the expression of underdeveloped skills. Ask judicial questions and you may begin to see a crime. Unwanted acts do not contain something culpable as their essence. We make it so, through the perspective we take, the questions we ask. And who we talk to, who we listen to. Whose voice we give primacy.

Christie argued that culpability is not an essence that we can discover behind the inconsistency and shifting nature of the world as it meets us.⁴ Culpability itself is that flux, that dynamism, that inconstancy, a negotiated arrangement, a tenuous, temporary stability achieved among shifting cultural, social, mental, and political forces. Concluding that an unwanted act is culpable, is an accomplished project, a purely human achievement. According to Howard Becker, one of the earliest and most vocal proponents of this idea:

In this view, what counts as deviant or culpable is the result of processes of societal negotiation, of social construction. If an organization decides that a certain act constituted "negligence" or otherwise falls on the wrong side of the line, then this is the result of using a particular language and enacting a particular repertoire of post-conditions that turn the act into culpable behavior and the involved practitioner into an offender. Finding an act culpable, then, is a negotiated or enforced settlement onto one particular version of history.

Central to the creation of such stories is the lack of status or power on the part of those who are set to lose, those who do not have a voice are on the losing end of the construction. Lot's daughters lacked status and power, and did not have a voice (or were denied one in Genesis) so their father did not commit a crime. The drug company had status and power, so the doctors administering its trials in Argentina, who didn't have much of a voice in this debacle, committed a crime. De Chaumereys (or his backers) still had enough power and status and voice: His "crime" was judged very lightly. Dead pilots lack power or status and have no voice, so it is easy to convert their acts into bad, sanctionable behavior posthumously. Mara still had a voice, but by the time it was heard in court, it was rendered feeble and partisan. It came from a prepared transcript, squeezed into the tightly scripted and formal proceedings of a court case, where the words it uttered became easily seen as an evasive, self-serving, and exculpatory maneuver.

This means that justice and power are closely overlapping categories. We cannot consider one without the other.