The Pinkerton Problem
By Bruce A. Antkowiak.
In the unlikely event that any junior faculty member should ever ask me for advice about how to write a law review article, I would give them this highly non-academic bit of counsel. First, find a real problem in the law, one that affects real people and one that can be addressed by judges and practitioners in the area. Second, help them find a way to solve it. Granted, this flies in the face of the conventional wisdom that law review articles should be laborious expositions of exhaustive research into esoteric points, grandiosely displayed, and targeted solely for other academics in a display reminiscent of peacocks flashing their plumage at the zoo. But as I am neither peacock nor traditional academic, my advice stands, and I seek to follow it here.
Indeed, if I am any animal, I am an old criminal law warhorse who cares deeply that the system do its vital work in the way the Constitution intended. The problem addressed in this article strikes at these concerns. It was first brought to my attention when a member of a Committee I chair to draft and revise the Pennsylvania Criminal Jury Instructions complained that the current Pennsylvania instruction on the liability of a conspirator for substantive crimes committed by a co-conspirator (something we all know as the Pinkerton charge) was wrong or, minimally, incomplete. The Committee had to conclude, however, that since that instruction accurately reflects the teachings of the Pennsylvania Supreme Court on the matter, no change could be made. A change, however, should be made once the courts of Pennsylvania and virtually every other place where a Pinkerton charge is used realize what a serious constitutional problem the Pinkerton doctrine presents.
As always, a simple, concrete example will help frame the issue. Moe and Larry agree to burglarize Curly’s house to steal his baseball card collection. They agree to meet at the front of Curly’s house at 9 P.M. (when they know Curly is not home) and plan to force in the back door to gain entry. When Moe gets there at 9 P.M., he does not see Larry. A moment later, Larry walks out of the front door of Curly’s house, explaining that on his way there, he stopped and stole a ladder from a hardware store. He used the ladder to climb in through an open window on the second floor in the back of the house. Moe tells Larry to go back in the house to search for the baseball cards while he stays out front as a look-out in case police come. Larry finds the card collection and climbs out the back window and down the ladder. By the time he reaches the back yard, Shemp, a neighbor, runs over, yells and tries to grab him. Larry runs by Shemp, giving him a hard push as he goes by. Shemp falls, striking his head against a garden gnome, suffering a serious concussion.
Larry is guilty of conspiracy to commit burglary, burglary, the intentional theft of the ladder and the reckless infliction of serious bodily harm on Shemp (aggravated assault). Moe is clearly guilty of the first two offenses, but is he guilty of the last two as he had neither direct knowledge of nor direct involvement in the acts of Larry that constituted those substantive crimes?