Legal Implications of Body Jumping in Sawyer’s Mindscan

Courtroom dramas have a valuable place in SF, I think. The courtroom allows the author an excellent opportunity to explore ideas and themes, and its use adds quite a bit of drama and a feeling of realism to SF works. Unfortunately we do not have too many of these kinds of stories. The only other one I can think of off hand is H. Beam Piper’s Little Fuzzy, which is currently sitting in my pile, though I am sure that there are a few others I have just forgotten. Robert J. Sawyer’s Mindscan is a courtroom drama also. In fact it’s a well researched and pretty well written legal drama, at least as it pertains to the actual legal aspects of the story. Look here for a literary review of this story. I will state here that even though I did not like this book overall, I loved the legal aspects of it.

Although there was a lot more going on, Mindscan is as purely a courtroom drama as I have ever encountered in SF. Sawyer did an excellent job with the legal themes and issues that he worked with, which primarily included trial procedure, evidence law and civil liberties, and to a lesser degree the law of intestacy. The basic legal story was this: Karen Bessarian, an extremely rich woman with one surviving child, elected to have her consciousness copied and downloaded into an immortal automaton. The company that handled the copying and transfer for her, Immortex, sold her a package that included an artificial body, the copy and uploading procedure, and also provided her with a suite of rooms in a luxury retreat on the farside of the Moon for her human body to live out its days, as the original person was not killed or discarded after the process. In exchange Karen paid a hefty fee for the services, then agreed to transfer all of her money, property and citizenship rights to the automaton, then travel to and stay on the Moon until death. I am not at all certain how a person goes about transferring “citizenship rights,” and apparently neither is Sawyer, as this issue is ignored. Sawyer really never was clear as to why the originals had to give up their lives on Earth and immigrate to the Moon, other than to say that it would cause some sort of psychic damage to the copy if it saw her. That is not what I want to discuss today. Shortly after the original Karen got to the Moon she died of age related causes. Her son on Earth, Tyler, got wind of her death from a doctor that had just returned from the Moon and paid him $125,000 for a death certificate which he otherwise would not have been able to get as the Moon was essentially a lawless jurisdiction without any government, and Immortex would not give him one. He then moved in the Michigan state court to probate Karen’s will, even though the mindscan Karen was “alive” and doing well. Because of the odd circumstances involved the court allowed a trial on the issue of whether or not Karen died in the eyes of the law when her original body died, or if the mindscan Karen in effect replace her as a “person.”

The real focus of the trial was on civil rights, and examined the issues through testimony on the true location of consciousness in the brain, but I want to comment quickly on the wills & trusts issues before I move on. At the outset I note that Bessarian could have avoided this problem completely by changing her will before she died to name the mindscan Karen as the beneficiary. Apparently nobody knew that she was going to undergo the procedure though, as it was a shock to all of her attorneys when she greeted them in her new robotic form. Apparently she did not seek advice of counsel first. The bloody fool!

Sawyer gave us in this book about as nearly perfect an evolution of a specific law as I have ever seen outside of a legal thriller or mainstream courtroom drama. That law was the law of abortion. Set in the near future United States and Canada, most of the settings are recognizable and only slightly changed from what we know today. The United States has continued on its path towards conservativism, and Roe v. Wade seems to have been overturned by a case called Littler v. Carvey. The rationale of the Littler case is not given; all that we know is that an unmarried couple conceived a child, then agreed to marry and raise it. Before they could take their vows the woman left the man and tried to get an abortion. The Supreme Court, in a fast-tracked case from Texas, ruled 6-3 that the unborn child was a “person” under the Fifth, Eighth, Thirteenth and Fourteenth Amendments to the United States Constitution, and prevented her from having the abortion. The issue in Roe, depending on who you ask, was different. In the Roe v. Wade case the Court ruled that under the penumbra of rights granted by the U.S. Constitution an individual has a right to privacy that cannot be pierced by the state without a compelling interest, thus the state could not prevent Roe, a pregnant woman, from getting an abortion. It was a controversial way of legalizing abortion without actually addressing abortion at all. Sawyer posited a subsequent case called Department of Health and Human Services v. Maloney where a woman who was on her way to the delivery room grabbed a knife and stabbed herself in the stomach, killing her unborn child. The criminal defendant in that case was held unfit to stand trial, but the shock of the case galvanized the nation and a new rule was enacted that held that once the period of individuation occurs, where the fetus is incapable of splitting into more than one individual, abortion becomes illegal thereafter; about fifteen days after conception. In other words, a decisive victory for the conservatives, as most women only barely realize that they are pregnant within that short a time frame.

Unfortunately for Karen, her case was doomed from the start. As with a lot of legal cases having to do with civil and individual rights, the answer often becomes clear once the right questions are asked. The problem often is getting to those questions. Once Tyler moved to probate the will Karen reacted out of anger and decided to sue, even after she was told that she could probably settle and preserve a lot of her wealth. She was so angered that her own son could say that she was gone and that the mindscan Karen was somehow not his mother, that she made a decision to litigate and never looked back. When Tyler took the stand, I’m sure that was when he got the jury to decide in his favor.

“My mother was born a flesh-and-blood human being. Granted, at some point, a scan of her brain was made, and this . . . this thing . . . was created from it. But my flesh-and-blood mother did not cease to exist the moment the scanning was done. It’s not as if the copy picked up where the original left off. Rather, my flesh-and-blood mother flew on a spaceplane to Low Earth orbit, then took a spaceship to the Moon, and settled in at a retirement colony on Lunar Farside. All of that happened to my mother after this copy was made, and this copy has no recollection of any of that. Even if we grant that the copy is identical in every material way with my mother – and I don’t grant that for a second – they have had divergent experiences. This copy is no more my mother than my mother’s identical twin sister, if she’d had one, would be my mother.”

Tyler paused, then went on. “Frankly, I don’t care – I really don’t – about whether copied consciousnesses are, in fact, persons in their own right. That’s not the issue. The issue is whether they are the same person as the original. And, in my heart of hearts, in my intellect, in ever fiber of my being, I know that they are not. My mother is dead and gone. I wish – God, how I wish! – that wasn’t true. But it is.” He closed his eyes. “It is.”

He was obviously coached by a fine attorney, because no party litigant is ever that eloquent and on point. And that point, I think, won the day. See what I mean when I say that Bessarian should have changed her will to begin with? Anybody who has ever dubbed a tape knows that the copy is not the same as the original, and destroying the original or waiting for it to die on its own does not change the status of the copy. It will always be a copy, even if we have the technology sufficient to make it absolutely perfect, in every little tiny way.

One final thing before I wrap up: One of the characters was an elderly civil rights lawyer from Manhattan named Malcolm. Malcolm underwent the mindscan procedure with Jake’s group and went to the Moon with Jake and Karen. Back on Earth when Tyler sued the mindscan version of Karen her boyfriend, the mindscan version of Jake, hired the mindscan Malcolm and his human son to try the case for Karen. Meanwhile on the Moon human Jake had undergone an operation to cure his condition, and wanted to get off the Moon and return to Earth. That was impossible because of the agreement that he had with Immortex, but human Jake turned to human Malcolm on the Moon for legal advice. Malcolm could not think of a way to help Jake but said this:

A lawyer’s only any use within an infrastructure that supports litigation. This is the Old West; this is the frontier. No police, no courts, no judges, no jails. Your replacement down on Earth might be able to change things – not that I can see any reason why he’d want to – but there’s nothing you can do up here.”

I’m not sure how I feel about that quote. The practice of law is about much more than litigation of issues before a judge. It’s mainly about preparation for presenting or defending a claim, then negotiation, and that can be done anywhere. Personally I have said things like this before; usually when I can tell that someone is gearing up to ask me for a “favor” by helping them for free. There is a certain amount of truth to it though. Sometimes you have facts that just suck, and there is nothing that you can do with them. But honestly, any lawyer who feels that way generally needs to just sit down with them for a few hours and think. Often something can be done.

Other legal issues of interest:

In this future Michigan courtroom, on the civil docket petitioners are able to pay a fee to have their cases moved forward and heard earlier. Karen is told by her attorney that if she wanted her case to be heard within a few weeks, she could pay a half-million dollar fee to the court and get a court room quickly. There are all kinds of arguments for and against this kind of thing. For example, in a crowded system a litigant with a valid position could otherwise have to wait years to get a grievance redressed. On the other hand, what about all the other litigants in line ahead of this person who are in the same position, but cannot afford the fee? Why should they have to wait longer for their day in court? This practice has been suggested already in the United States because of court overcrowding. Fortunately those in power are as turned off by it as I am, and the poor’s access to justice is at least in theory equal to the rich’s access.

At the end of the preliminary matters, after voir dire, Karen’s attorney moved for “summary judgment.” I’m not an expert on Michigan procedure (California and Washington State, actually), but a motion for summary judgment is usually a noticed motion with pleadings. It is a request that the court find in favor of one party or the other based on the evidence that has been submitted. I think that Sawyer meant “non-suit,” which is a motion that a litigant makes where he or she asks the court to rule that the evidence that the other side has proffered is insufficient to support the claim that they are making. In this case I think it was ill-timed, as Karen became the plaintiff in the matter by paying the fee noted above, and the defense had not yet presented anything. I note this here, however, because I don’t think that “motion for summary judgment” was the correct procedural vehicle that Sawyer should have used.

Sawyer played a neat game with copyright law. Bessarian was an author who penned a trilogy of dinosaur books that were as popular as Harry Potter ever was. From those books she became a billionaire, which is why the fight over her estate was so intense. In the end the robots lost their legal battle, but since Karen was immortal all she had to do was wait seventy years after her own “death” to begin writing new stories in the series, which is exactly what she did. Once the stories fell into the public domain, she added on to them by writing sequels in her own name.

Karen’s lawyer did a good job explaining his jury selection strategy at voir dire. That is often the first big hurdle in any case; getting the jury you want to hear your case. Sawyer’s explanation of why Deshawn Malcolm wanted certain types and not others on the jury was pretty much dead on. Deshawn wanted fans of Karen’s work – either the original books, or the movies based on them. And he wanted to stack the jury with blacks, Hispanics, and gays, whom he – and the consultant we’d hired – felt might be more predisposed to a boarder definition of personhood. Deshawn also wanted rich jurors – the hardest kind to get, because the rich tended to find excuses to shirk their civic responsibility. “Death and taxes are supposed to be unavoidable,” Deshawn had said to us. “But the poor know that the rich have ways to avoid paying their fair share to the IRS. Sitll, they get some comfort from the fact that death is the great leveler – or it was, until Immortex. They’re going to resent Karen finding a way around that. Meanwhile, the rich are always paranoid about greedy relatives; wealthy people are going to despise Tyler.”

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