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Criminal Negligence at Virginia Tech By: Henry Mark Holzer
FrontPageMagazine.com | Monday, April 23, 2007


While South Korean 23-year-old mass murderer Cho Seung-hui goes into the record books, people are asking themselves who could have done what to prevent the slaughter of 32 innocent victims.

There is no need to detail here how many people at Virginia Tech and elsewhere knew that the future killer was deeply disturbed, probably even psychotic: teachers, classmates, staff, administrators, police, family, campus cops.

But some people, like some of those I dined with last night, wonder “what could have been done?”  After all, “Cho hadn’t done anything.”

Let’s take a look at Title 37.2 of Virginia’s “Mental Health, Mental Retardation, and Substance Abuse Services” law, Subtitle III “Admissions and Dispositions,” Chapter 8 “Emergency Custody and Voluntary and Involuntary Civil Admissions,” Section 37.2-808 “Emergency custody; issuance and execution of order,” and a few other sections.

The statute appears below.  The italics are mine.

“A. Any magistrate may issue, upon the sworn petition of any responsible person or upon his own motion, an emergency custody order when he has probable cause to believe that any person within his judicial district (i) has mental illness, (ii) presents an imminent danger to himself or others as a result of mental illness or is so seriously mentally ill as to be substantially unable to care for himself, (iii) is in need of hospitalization or treatment, and (iv) is unwilling to volunteer or incapable of volunteering for hospitalization or treatment.”

Note the elements of the statute: virtually anyone can ask a judge to issue a custody order if there is probable cause someone is mentally ill, is dangerous to anyone because of it, needs care, but won’t voluntarily seek it.  A subsection of this section provides that: “A law-enforcement officer who, based upon his observation or the reliable reports of others, has probable cause to believe that a person meets the criteria for emergency custody as stated in this section may take that person into custody and transport that person to an appropriate location to assess the need for hospitalization or treatment without prior authorization. Such evaluation shall be conducted immediately.”  [My italics.]

Once the custody order is issued, law-enforcement can execute it anywhere in the Commonwealth.

With the subject is in custody, a temporary detention order can be issued: “The duration of temporary detention shall not exceed 48 hours prior to a hearing. If the 48-hour period herein specified terminates on a Saturday, Sunday, or legal holiday, the person may be detained, as herein provided, until the next day that is not a Saturday, Sunday, or legal holiday.”

Next, a mental health professional examines the subject. Then there is a hearing.  Under Section 37.2-815, at the hearing the judge receives the examiner’s report, which is required to certify that: “he has personally examined the person and has probable cause to believe that the person (i) does or does not present an imminent danger to himself or others as a result of mental illness or is or is not so seriously mentally ill as to be substantially unable to care for himself and (ii) requires or does not require involuntary inpatient treatment.”

Following the hearing, the judge “shall render a decision on the petition for involuntary admission after the appointed examiner has presented his report . . . and after the community services board or behavioral health authority . . . has presented a preadmission screening report . . . with recommendations for that person's placement, care, and treatment . . . . These reports, if not contested, may constitute sufficient evidence upon which the district court judge or special justice may base his decision.”

 

Once the subject has been committed, periodic reviews of his condition are conducted.

 

He remains in the state facility until the professionals deem him competent to be released.

 

Cho was a poster boy for the triggering of Section 37.2-808, but no one pulled that trigger.

 

Not a single person who knew of Cho’s palpable mental illness acted.  Not his teachers, classmates, staff, administrators, police, family, or campus cops.  No one!

 

So the law, which might have presented the slaughter, was not invoked.

 

And today 32 innocent people are dead.

 

And still the chorus is heard: “What could we have done.  He didn’t do anything.”

 

Except having been in a psychiatric hospital because he was thought to be suicidal.

 

Except having stalked female students.

 

Except having had a judge admit that Cho presented “an imminent danger to himself [!!] as a result of mental illness.”

 

Except having had been ordered to undergo outpatient psychiatric treatment.

 

Except that his roommates and classmates knew he acted bizarrely.

 

Except that his school writing was pathologically violent and often incoherent.

 

Except that his violent writings caused his removal from one of his classes.

 

Except that professors begged him to get counseling.

 

Except that he rarely looked anyone in the eye.

 

Except that he didn’t speak even to his roommates.

 

Except that he was suspected of being autistic.

 

Except for all this, and who knows what more, Cho “didn’t do anything”—not, that is, until he murdered 32 innocent people.

 

If Cho Seung-hui is the poster boy for Virginia’s involuntary commitment statute, Virginia Tech and those associated with it who knew plenty about him are the poster boys for criminal negligence.

 

The dead have been victimized not only by Cho Seung-hui, but by their colleagues and others whose moral and legal duty it was to protect them.

 

One can only wonder why no one saved the victims of the mass murderer, who happened to be South Korean.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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