Death Ruled Not Homicide For Officer At Ground Zero (Or How The NYC Chief Medical Examiner Has Made A Distinction Without A Difference)

A strange decision indeed by New York City’s chief medical examiner to not reclassify the death of a police officer who worked at Ground Zero as a homicide.  Dr. Charles S. Hirsch reasoned that because Officer James Godbee, Jr. did not arrive at Ground Zero until September 13, 2001 (when he then began inhaling noxious dust particles from the terrorist attack), his death in December 2004 from those noxious dust particles was not “directly caused” by the World Trade Center attack.  Therefore, Officer Godbee Jr.’s official cause of death was sarcodosis as opposed to homicide.

Dr. Hirsch’s distinction between the manner of death and the cause of death in determining whether a death should be classified as a homicide or not is surely a strained one.  Dr. Hirsch’s reasoning goes something like this: 

If you were near Ground Zero on September 11, 2001, enveloped by a dust cloud, and later died from inhaling the dust, then Dr. Hirsch says that’s a homicide.  However, if you came to Ground Zero a few days later, were exposed to the same dust, and later died from inhaling that dust, then it’s not a homicide, because it’s work-related.

What the hell kind of distinction is that?

The distinction that Dr. Hirsch draws misses one crucial element:  foreseeability.  A death that is foreseeable consequence from a particular crime is a homicide, regardless of whether that death is “work-related” or not.  Of course, the issue of foreseeability deals with causation and proximity. 

It surely cannot be denied that Officer Godbee Jr.’s death was caused by the dust from the terrorist act, and that the dust was the proximate cause of Godbee’s death.

To be sure, proximity is often times a policy question.  Should it be a policy that any death occurring from a victim’s injuries after September 11, 2001, even though it can be shown to be a direct result of that particular day, not be classified as a homicide?  Dr. Hirsch’s attempt to make a bright line rule is like trying to fit a square into a round peg.  It does not work.

Here’s the article, “Death Ruled Not Homicide For Officer At Ground Zero,” by Anthony DePalma, published in the New York Times today (

Death Ruled Not Homicide for Officer at Ground Zero

New York City’s chief medical examiner has decided not to reclassify the death of a police officer who worked at ground zero as a homicide linked to the attack on the twin towers because the officer did not arrive at the site until Sept. 13, 2001.  The examiner’s decision appears to cast doubt on the future of thousands of cases involving sickened rescue and recovery workers whose relatives may in the future seek to have them included on the 9/11 victims’ list.

When the officer, James J. Godbee Jr., died in December 2004 at age 44, the medical examiner’s office listed the cause of death as sarcoidosis, a disease that scars the lungs and other organs. Although the death certificate did not link Officer Godbee’s disease to the days he spent at ground zero, the police pension fund did make that link later, granting the officer’s widow a line-of-duty pension.

Earlier this year, the officer’s widow, Michelle Haskett-Godbee, formally requested that the medical examiner review the case. She hoped that if her husband’s death was formally linked to the trade center attack, his name would be added to the official list of 9/11 victims.  But the medical examiner, Dr. Charles S. Hirsch, turned down Mrs. Haskett-Godbee’s request in a letter dated June 13, which was reported Monday in The Daily News.

“All persons killed at the World Trade Center on September 11, 2001 and others who died later from complications of injuries or exposure directly caused by the collapse of the twin towers on that day are homicide victims,” Dr. Hirsch wrote. “However, P.O. Godbee first arrived at the World Trade Center site on September 13, 2001.”

Ellen Borakove, a spokeswoman for the medical examiner, said Dr. Hirsch drew a distinction between the manner of death, which she defined as the circumstances leading up to a fatality, and the cause of death, which she said is the underlying reason a person died.

“If you were there when the towers came down and were enveloped in the dust cloud, that was a direct result of what was happening at the time the attack was under way,” Ms. Borakove said. “On other hand, if you were there later on and you were doing work, you may be in a position where you were exposed to the same dust, but since you were not exposed during the time of attack, then that becomes work-related.”

New York City death certificates list the immediate cause of death separately from the manner of death. Homicide is given as the manner of death for the 2,750 names on the official victims’ list. In the letter about Officer Godbee, Dr. Hirsch stated that deaths linked to inhalation of dust while performing work are classified as “natural deaths,” not homicide.

In May, Dr. Hirsch reclassified the death of Felicia Dunn-Jones, a lawyer who was engulfed in the dust plume on the morning of Sept. 11 as she ran from her office in Lower Manhattan, as homicide. In that case, he focused special attention on the fact that Mrs. Dunn-Jones, 42, had inhaled trade center dust on the day of the attack.

That reversal opened the way for other cases to be reviewed. According to Ms. Borakove, Dr. Hirsch has declined to reclassify three or four other cases, including those of Officer Godbee and Detective James Zadroga, whose death in early 2006 had been linked to trade center dust by a New Jersey medical examiner.

Dr. Hirsch’s decision to disallow those who arrived at ground zero after Sept. 11 from being considered possible homicide victims confused some legal experts. Stephen M. Gillers, a law professor at New York University, said that a fatality that is a “foreseeable consequence” of a particular crime is usually considered to have been caused by that crime.

“Because Godbee arrived only two days later, you could make a pretty strong case that it was 9/11 exposure,” Professor Gillers said in a telephone interview. “The medical examiner may just be saying, ‘If I allow Sept. 12 or 13, I may be nickel-and-dimed to Sept. 15 and beyond.’ At some point, you just need to get on with things.”

Representative Carolyn B. Maloney, who, with other members of New York’s Congressional delegation, has sponsored a bill providing compensation for ill ground zero workers, called Dr. Hirsch’s decision on Officer Godbee “absolutely arbitrary” and sure to increase the anger and frustration of many New Yorkers.