Larry Whitfield never even made it in the door.

Photographer: Guenter Schiffmann/Bloomberg

The Supreme Court, a Bank Robber and a Heart Attack

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Some days you just can't catch a break. Larry Whitfield had one of those on Sept. 26, 2008. First, he botched a bank robbery without even getting in the door. Fleeing, he ended up in the home of a 79-year-old woman, Mary Parnell -- who promptly died of a heart attack.

Whitfield wasn’t convicted of murder, but he was convicted of the federal crime of forcing someone to accompany him while in the act of a bank robbery. The “accompanying,” prosecutors said, took place when Whitfield asked Parnell to move one from one room in her house to another. Now, the Supreme Court will decide whether the prosecutors overreached -- and therein lies an intriguing legal tale.

The details are too striking to be neglected. Whitfield and his accomplice, Quanterrious McCoy, tried to enter the Fort Financial Credit Union in Gastonia, North Carolina, armed with a .357 and an AK-47. The building was equipped with a metal detector, and it worked, automatically locking the bulletproof lobby doors before Whitfield and McCoy could enter.

The failed bank robbers took off in their white Crown Victoria, but then drove off the highway in the rain and got the car stuck in the median strip. McCoy was soon caught, but Whitfield got away. First, he broke into an empty house, but when the owner came home and saw him, he threatened her with a knife and ran. Next, Whitfield went through the unlocked front door of Parnell’s home. As Parnell cried in fear, Whitfield called and texted a friend, Tamecia Sanders, who agreed to pick him up.

Sanders heard Whitfield tell Parnell, “Ma'am, just calm down. I’m probably more scared than you are, and I'm actually just trying to leave.” But Parnell was more than afraid -- she was having a heart attack. Sanders told Whitefield to call an ambulance and get out, but Whitfield remained, and Parnell died.

Whitfield got 20 years for the bank robbery. His case before the Supreme Court involves a further count of a federal statute which makes it a crime for a bank robber to “kill any person, or force any person to accompany him” while “avoiding or attempting to avoid apprehension for the commission” of the bank-robbery offense. The specific evidence of the active accompanying came from Whitfield's confession to the police explaining why Parnell was found dead in the computer room. First, he told police that he had guided Parnell to the office. Then, he clarified:

I didn’t, no. I didn’t . . . . I just know, she, she was in front of me and she went into the computer room. I don’t remember -- I really don’t remember touching her. Like come on ma’am . . . . I was cooperative with her and she was cooperative with me. I didn’t put my hands on her.

Parnell then left the computer room, and Whitfield asked her to return, which she did. This was enough, according to the U.S. Court of Appeals for the Fourth Circuit, to sustain the conviction. It got Whitfield another five years added to his 20.

The legal question for the Supreme Court is straightforward: Is a mere request to move from one room to another sufficient to count as “accompaniment” under the meaning of the law? Whitfield’s lawyers say no. To them, the statute is about taking a hostage in the course of a bank robbery -- not guiding someone from one room to another.

The Department of Justice disagrees. “The word ‘accompany’ typically connotes joint movement,” says the department in a particularly literal brief, “but it does not require travel over any particular distance and readily encompasses movement from one room to another.”

If the government is right, it's easy to imagine that most bank robberies could be interpreted to include this extra crime. After all, a bank robber ordinarily can't get money without directing someone to move around the bank to get it. In response to this problem, the government says that the crime doesn't occur if the bank robber directs someone to move, but only if the robber “accompanies” the person by moving alongside the person he is directing.

This is the kind of hairsplitting that gives lawyers a bad name. Literal interpretation of statutes produces absurd results under all sorts of circumstances.

Literal statutory interpretation, dressed up as “textualism,” has been on the rise before the Supreme Court. Such literalism will be on display in the Affordable Care Act case that it has agreed to hear next year. The fate of President Barack Obama's signature domestic-policy initiative will rest on just how literal the court chooses to be in deciding whether the words “established by the state” include a health-insurance exchange established by the federal government on behalf of the state.

Whitfield's case may be a prime opportunity for Justice Antonin Scalia to apply an escape hatch for the use of literal interpretation where the law is criminal and the penalties severe. According to the “rule of lenity,” which Scalia has invoked in the past, ambiguity in a criminal statute may be resolved in favor of the defendant. Maybe Larry Whitfield will catch a break after all.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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