Alcor's Legal Battles


by Mike Perry

[An edited version of this article was printed in Cryonics 1st Quarter 1999]

Legal battles in cryonics, we might say, began even before cryonics itself, long before in fact. One example is in the 1940 sci-fi flick, The Man With Nine Lives. There we find a spirited showdown between the local sheriff and the Mad Scientist (played appropriately by Boris Karloff) who has developed reversible cryopreservation but seems only to have rendered somebody cold and dead. [1]

When the real cryonics movement started up in the 1960s, it didn't take long before there were real legal confrontations. Generally these involved unhappy relatives of someone who had been frozen. The relatives either wanted the money that had been set aside and weren't interested in keeping the patient frozen, wanted someone else to assume the expenses they had been paying, or (as in the Chatsworth incident) were suing because some-body had not been kept frozen. Ev Cooper had come up with an early slogan for cryonics, "freeze, wait, reanimate." But Curtis Henderson, who had helped start the first organization for real cryonic suspension (Cryonics Society of New York, Aug. 1965), offered that it ought to be "freeze, wait, litigate." [2]

By the late 1980s, times had changed somewhat, which meant, not that there were no more legal battles, but that the legal battlefield had shifted too, almost adaptively, so that new kinds of confrontations were more prevalent. The new skirmishes involved mostly one organization, Alcor, which had been set up in large part to avoid the problems that had plagued cryonics in the past. Relatives did not maintain suspensions at Alcor but funds were provided as a lump sum at the time of deanimation. Safeguards, financial and otherwise, were put in place to see that patients would be maintained and not neglected, even in adverse circumstances such as when funding problems developed.

The legal confrontations I'll cover here mainly involve two Alcor patients, Dora Kent and Robert Binkowski, frozen within months of each other in 1987 and 1988. These cases and their consequences cover the most important legal battles Alcor was involved in, directly or indirectly, though not the only ones. But there is enough material here to fill a good book or two, so as is often true in these columns, I'll only be able to skim some highlights.

Dora Kent.

The mother of longtime cryonics activist Saul Kent was frozen in December 1987. In an effort to give her the best suspension possible, she was brought to Alcor's facility, then in Riverside, California, and she deanimated there, with no physician present. (Her attending physician was called in and found the death had occurred from natural causes.) From a technical point of view, the objective was achieved: Her body washout and cryoprotective perfusion proceeded swiftly, and within a few hours she, a neuro, was being cooled to dry ice temperature. The local coroner, however, sensed that something out of the ordinary had happened and became interested. (This man, Ray Carrillo, had recently gained some notice for having ordered an autopsy of a prominent Riverside County resident, Liberace, establishing, against the family's wishes to conceal it, that the well-known entertainer had been an AIDS victim.) Alcor cooperated with the coroner's request for Dora's headless remains, being allowed to retain the now-cooling head to complete her cryonic suspension. An autopsy was conducted and a death certificate issued that gave the mode of death as natural causes, seconding the conclusion of the attending physician.

For short while, it seemed that a crisis had been averted. But soon the coroner called a press conference, and aired suspicions that "maybe she wasn't dead after all" when the freezing procedure was started. Matters took a new and menacing turn. A raid on the Alcor facility was conducted by the coroner's office in early January, 1988, to seize the frozen head of Dora Kent for autopsy, on grounds that it too must be tested to further clarify the cause and mode of death. (Such a damaging procedure would, of course, inflict irreparable harm and compromise or eliminate the patient's chances of reanimation.) But the coroner's contacts with the press had given ample warning, and the patient had been moved to another location. Instead, though, word of the case, and the "battle over the frozen head" spread far and wide. [3]

At first public opinion, as expected, favored the coroner, but it soon swung toward the beleaguered cryonicists, several of whom were detained in handcuffs for several hours during the raid, and who, after all, did not seem the usual "criminals." A second raid, conducted a few days later, resulted in seizure of much of Alcor's equipment, including computers. Alcor meanwhile fought the autopsy order in court and won. On Feb. 1 a local judge (1) found no evidence of foul play on Alcor's part, and (2) issued an order barring the coroner from autopsying Dora Kent or any other of Alcor's patients. [4]

That might have ended the matter-but, it seemed, Coroner Carrillo was a "fighter." Not one but at least three separate legal challenges would be launched over this incident. The most serious was a murder claim: Dora Kent, a revised death certificate proclaimed, was a victim of "homicide." She had died of barbiturates deliberately administered to "help" her deani-mate, and not of natural causes after all. She wasn't dead when the suspen-sion process had started because, a pathologist and others marshaled by the coroner's office said, her body metabolized the drugs supposedly given after her decease (an effect that could also have resulted from the metabolic support that cryonics patients are routinely given post-mortem). [5]

The "murder" case would drag on for years, like the other major battles. It foundered, finally, for lack of evidence. No charges were ever filed. The physical evidence was hardly conclusive. Alcor personnel, the only wit-nesses present at the suspension, could also claim "transactional immunity." This meant they could not be prosecuted for each other's testimony, a point upheld when the matter was pursued all the way to the California Supreme Court by Alcor's opponents.[6] Meanwhile the fortunes of Ray Carrillo ground slowly downward as blunders in his administration became public. In one case, a body needed for a criminal investigation was cremated by mistake. In another, a couple had been doing dissections for the coroner's office on a picnic table in their back yard, and left boxes of human body parts in their garage when they moved to another house, to be discovered by the new occupants.[7] Carrillo was defeated for reelection in 1990. The pathologist who helped make the "finding" against Alcor meanwhile died of Creutzfeldt-Jacob's disease, a brain disorder related to bovine spongiform encephalitis or "mad cow" disease, and possibly originated by handling an infected human brain during an autopsy. The coroner's office relaxed its grip, telling inquirers that it was no longer pursuing its investigation into the death of Dora Kent.[8] But the case remained on the books as a "homicide." Ironically, this classification was actually to benefit Alcor in other struggles.

The second challenge was a claim by the California Medical Board (earlier known as the Bureau of Medical Quality Assurance) that Alcor personnel involved in the Kent suspension were guilty of "felony practice of medicine without a license." The physician also involved was "aiding and abetting the practice of medicine without a license," according to the CMB.[9] One important issue was whether the patient was dead or alive when any "medicine" was practiced, something presumably the "murder" investigation would settle. In any case the CMB action was stopped in its tracks by the ever-pending but dormant homicide case. Alcor personnel or associates could and did refuse to testify unless granted transactional immunity, which stymied the CMB. No testimony was taken, and this case too was eventually abandoned after some bizarre harassment, including an incident in which an angry Alcor staffer ejected a CMB official from the facility at gunpoint.[10] (True, this action was inappropriate, and the staff member was promptly dismissed.)

Finally, there was the third and silliest legal attack, in which it was claimed that Alcor was guilty of grand theft of medical supplies and equipment from UCLA. In fact Alcor did have a lot of these items--all legitimately purchased, many at UCLA's surplus sales department, and in most cases receipts existed to prove it. Both the materials and the receipts were seized during the raids on the Alcor facility, which at first made it hard to prove anything about how the goods were obtained, but then the truth came out. One particular item was a large, stainless steel utility cart or "rolling rack," which, it was said, could not have been purchased as surplus, because it was brand new! (It was also worth over $1,000!) It turned out that the rolling rack, though new, had been superseded by an even newer model, and, as investigation confirmed, it really was sold at surplus to Alcor. (This investigation, by the way, was skillfully concluded by an Alcor member's detective work after officials had waffled for many months and accomplished very little.) So the "theft" case collapsed too, and the whole Dora Kent affair was finally laid to rest.[6,11,12,13] (Theoretically, though, it could still be reactivated, though it seems highly unlikely. But a homicide case has no statute of limitations. One hopes that the "homicide" finding will be revoked by the time, assuming we are so fortunate, that Dora Kent herself is reanimated!)

There were two other repercussions of the Dora Kent case that deserve mention, additional legal confrontations in which, for a change, some Alcor members received some compensation from the harassing bureaucrats. A false arrest suit was filed against the coroner's office shortly after the first raid. The eventual, out of court settlement, finalized in the summer of 1991, awarded $90,000 for the several hours that 6 Alcor personnel had spent handcuffed that day at the Riverside Police Station.[14] (It is worth remarking that generally the police department was sympathetic to Alcor's plight and didn't approve of the actions being taken by the coroner's office, though constrained to cooperate as requested.[15]) The second case involved the seizure of computers at Alcor during the second raid in January 1988. The Alcor Bulletin Board Service (BBS) was disabled by this action, and electronic correspondence confiscated. This, it turned out, violated a federal law protecting the privacy and privilege of e-mail services. The case involving 15 Alcor members was also settled out of court in their favor, for a total of $30,000.[14,16]

For more information on the Dora Kent case, see:
Our Finest Hours: Notes on the Dora Kent Crisis
Dora Kent: Questions and Answers

Robert Binkowski.

This suspension occurred in May 1988. It was the next one at Alcor after Dora Kent, and also Alcor's first whole body suspension. Binkowski, a Florida resident, died of a heart attack in his home, attended by his family. After some negotiations with generally cooperative local officials, his ice-packed body was flown cross-country to the Alcor facility to be frozen. Thus there was no question of his being legally dead at the time of suspension. The suspension went off as planned, and matters after that should have been routine, but weren't. The California Public Health Service objected to the suspension, claiming that Alcor, and by implication any cryonics organization in California, lacked authority to do what it was doing. David Mitchell, chief of the Office of Registrar that oversaw the PHS, rumbled that "Existing California statutes provide no basis to authorize cryonic facilities to store human remains. Therefore, if the Alcor Foundation has any bodies or body parts stored in the facility, the foundation is guilty of a misdemeanor … and should be reported to the local district attorney for investigation and prosecution as appropriate."[17]

Why this heavy-handed response, when cryonics organizations had been operating by this time for many years in California? Apparently, it was not because of Dora Kent but instead, the result of a memo issued by the PHS in 1980, relating to the Chatsworth disaster. In this incident, several neglected patients of a badly managed, early cryonics operation thawed out and decomposed, leaving a legacy of distrust and revulsion for cryonics among officials who were called in to investigate.[18] (The style of the response, though, seems to have taken its cue from the coroner's harassment over Dora Kent.[6]) The memo denied that cryonics organizations are authorized to receive anatomical donations under the Scientific Use provision of the Uniform Anatomical Gift Act. Mitchell echoed this denial, noting that no organization had a license to practice cryonics, whether for scientific or other purposes. (On the other hand, there was no way an organization could obtain such a license-it didn't exist.)

Though Mitchell advised that Alcor be "reported … for investigation and prosecution as appropriate," the actual prosecution was put on hold pending the homicide investigation.[17] Alcor's suspensions continued unhindered, though the disposal permits required for storing whole bodies were unob-tainable. (No such permits were required for head-only cases, which could be treated as tissue samples.) But the holdup in prosecution gave some breathing room for Alcor to strike back. In August 1988 Dick Jones, a terminally ill Alcor member, filed suit against Mitchell and Kenneth Kizer, head of the PHS. (Jones, a well-known TV script writer and producer who had won several Emmy awards, used the name John Roe in this suit to remain incognito.) The suit claimed the legal right to choose cryonics irrespective of "existing California statutes," which, while not endorsing the practice, did not forbid it either.[18] A ruling favorable to Jones and Alcor was obtained in October 1990 (nearly two years after Jones was suspended).[19] The State appealed; the ruling was upheld at the appellate level in June 1992,[20] and not appealed further.[6] So after years of delay and resistance, the disposal permits for Alcor's growing total of whole-body suspensions were finally obtained, and other cryonics organizations in the state were similarly benefited.

Alcor's legal battles cost hundreds of thousands of dollars, most of which was never compensated. One of the staunchest and ablest supporters of Alcor and cryonics, Jerry Leaf, lost his researcher's job of long standing at UCLA over the Dora Kent incident.[21] It's very possible the stresses contrib-uted to his own untimely death and suspension, at the age of 50, in 1991, though Jerry's support and loyalty were rock-solid to the end. Aside from these negatives, and the unhappy experiences of others of us during the bitter struggles, I think both Alcor and cryonics gained tremendously. Cryonicists proved they could fight and win against far more powerful if misguided opposition. Some fundamental rights were upheld, including the right to choose cryonic suspension itself. The seriousness of the commitment to patients in suspension, whom we hope to recover alive someday, was well demonstrated. Cryonics gained a new, more positive image, its legality now firmly established.

REFERENCES

1. Harris, S. "The Man With Nine Lives" (movie review) Cryonics Feb. 1989 28-42.

2. Henderson, C. private communication about 1987.

3. Much of this is recounted in the Jan. 1988 Cryonics.

4. Cryonics Feb. 1988 2-3.

5. Babwin, D. "Coroner says lethal dose of drugs killed cryonics case figure," Riverside Press-Enterprise 24 Feb. 1988 A1, A4, reprinted in Cryonics Mar. 1988 6-7.

6. Mondragon, C. "A New Era Begins," Cryonics Jan. 1993 10-15.

7. Darwin, M. "Keystone Coroners," Cryonics Oct. 1988 8-16.

8. Darwin, M. "Whatever Happened to the Riverside Coroner?" Cryonics Dec. 1990 3-5.

9. "Legal Update," Cryonics Oct. 1989 7-8.

10. "More Trouble at Alcor," Cryonics May 1991 21-22.

11. Cryonics Jan. 1988 7.

12. "UCLA 'Stolen' Property Investigation: Home Again!" Cryonics May 1988 1.

13. "The D.A.'s Alcor Stocking Stuffer," Cryonics Jan. 1991 2-3.

14. Cryonics Jan. 1988 5.

15. Cryonics Jan. 1988 21 (from Darwin, M. "The Past, Present and Future").

16. Henson, K. "They Haven't Got a Clue-The Government and High Tech," Cryonics Jan. 1992 5.

17. Babwin, D. "AIDS Victim Sues State to Allow Freezing of Body," Riverside, CA Press-Enterprise Sep. 1, 1988 B-1-2, reprinted in Cryonics Sep. 1988 5 and facing 6.

18. "Alcor Files Suit against the California Public Health Service," Cryonics Sep. 1988 4-5.

19. Mondragón, C. "A Stunning Legal Victory for Alcor," Cryonics Nov. 1990 3-7.

20. "Mitchell v. Roe Decision," Cryonics Jul. 1992 17-18.

21. Perry, M. "Jerry Leaf," The Alcor Phoenix Aug.-Sep. 1998 13-15. I also thank Hugh Hixon for consultation while writing this article.