The Quasi-Trolley Problem

One of my favorite issues in criminal law is the choice of evils -- the rule that the defendant is justified if, setting aside certain side-constraints, he breaks the law in order to avoid or abate some other, much graver social harm.  And one of the most well-known philosophical expositions of the choice of evils is Philippa Foot's and Judith Jarvis Thomson's "trolley problem": a trolley on a track is speeding out of control, and there are 2 people directly in its path.  You are on the trolley, and have the power to divert the trolley to another track, where it would kill only one person.  Should you do nothing or take action to divert the train?

Every so often, the choice of evils actually shows up in a real case, and it did about a week ago in the New York Court of Appeals case, People v. Freddy Rodriguez.  Even more surprisingly, the case raises a quasi-trolley problem scenario.  Here's what happened.  Somebody named Rios parks his "overloaded box truck" on a hill, with the truck facing downhill.  He turns the truck off, leaves the keys in the ignition, and goes into a store.  While he's in the store, the truck goes down the hill, killing one person and seriously injuring two.  But there was a dispute about how the truck got down the hill.

The government claimed that the defendant showed up drunk and wanted to play a little practical joke on Rios, so he got into the truck and drove like a lunatic down the hill.  The defendant claimed that he was walking by, saw the truck move, ran and jumped into the truck as it was already starting to descend the hill, got behind the wheel, and tried desperately to pump the brakes and turn the wheel to avoid the pedestrians, all to no avail.  Defendant was found guilty of manslaughter in the second degree, assault in the second degree, vehicular manslaughter in the second degree, vehicular assault in the second degree, and operating a vehicle under the influence of alcohol.  

The issue was whether the defendant was entitled to a jury instruction on the choice of evils, and for some reason, the majority found that he wasn't.  The majority said that for the choice of evils to apply, "there must be two evils."  I think the traditional rule is that the evil chosen must be outweighed by the evil avoided, or, as the NYPL says, "according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue."  Oddly enough, the Court concludes that as to the more serious charges (manslaughter 2, assault 2, and the vehicular homicide charges), "under defendant's scenario, there was no "evil" on his part. According to defendant, he was not committing any offense when he jumped into a runaway vehicle to prevent it doing harm to others."

That seems wrong to me.  The evil that the defendant sought to avoid was the death of pedestrians.  On his view of the case (suspicious as it may sound to a juror), he came sauntering along while drunk and, seeing a truck which was about to go screaming down a hill, he jumped into it to try to control it.  That was a crime -- the crime of driving while intoxicated.  His view is that he broke that law in order to advance what (I think we would all agree) was the greater good of saving the pedestrians.

One could even think about this case in terms of the trolley problem, with appropriate changes.  Suppose that an intoxicated defendant jumps into a runaway trolley and assumes the controls, because he sees two people strapped to the single track directly ahead of the trolley.  He is now guilty of the crime of operating a trolley while intoxicated.  Suppose further that in this alternative trolley problem, there is no other track with one person on it for the defendant to switch to.  In this Trolley2 problem, the defendant simply thinks that he can use the controls to rock the trolley off the rails, thereby saving the 2 people tied to the track.  But despite his best efforts, it turns out that the defendant is wrong, and he ends up hitting and killing the two people.  In a prosecution for the homicide of those two people, shouldn't our defendant in Trolley2 receive a choice of evils instruction?  In my view, he should.