Legal Briefs

> In a series of warehouses throughout the country sit cases and cases of canned lobster bisque, onion soup, lamb stew and various other delicacies--more than 2,000,000 cans in all--that may or may not contain deadly poison. They represent the entire stock of foods processed by Bon Vivant Soups Inc., which were seized by the Food and Drug Administration two years ago after a botulism-tainted Bon Vivant vichyssoise killed a New York banker.

Since there is no way of testing every can, the Government now wants to destroy the entire lot. Bon Vivant, which has resumed operations as Moore & Co. Soups, wants to get back its property for resale. It argues that there is no reason to suspect poison in the foods, which are worth an estimated $600,000.

When the suit came before Newark Federal Judge Lawrence Whipple in a nonjury trial last week, both sides were ready with mighty rhetorical flourishes. "The consumer must not unknowingly be placed in a position of playing a life-or-death game of Russian roulette when it comes to the food he eats," said the prosecutor. Bon Vivant's lawyer answered that such a charge amounted to "scare tactics designed to get a decision based on passion." The prosecutor promised to bring in "perhaps three dozen" microbiologists to prove his case. Bon Vivant's principal owner, Mrs. Maria Paretti, insisted that the food was perfectly safe, and added a little mysteriously, "Perhaps we could give it to a needy country."

Judge Whipple will be hearing testimony for perhaps three months before rendering his decision.

> Louis Smith, 37, once attacked a girl with a croquet post and later murdered and raped a student nurse. For the past 18 years he has been confined in Michigan's Ionia State Hospital as a "criminal sexual psychopath." Last year he was told that brain surgeons at the highly respected Lafayette Clinic in Detroit might be able to heal his apparently incurable condition by psychosurgery, a controversial technique in which portions of the brain are destroyed (TIME, April 3, 1972). Smith agreed, but just before the planned operation, an activist attorney heard about it and filed a class action to stop such surgery.

Last week, in a decision with broad implications for medical research, a three-judge state court ruled unanimously that "psychosurgery is clearly experimental and poses substantial danger to research subjects." It said that no one confined against his will can give "truly informed" consent to such an operation because the "inherently coercive atmosphere" of confinement does not permit genuine freedom of choice.

That principle, if applied generally, would probably curb the use of prisoners and involuntary hospital inmates as subjects for research (psychosurgery alone has been performed on about 500 people, many of them in confinement). As for Smith, the law under which he had been institutionalized was repealed in 1968, and a psychiatrist testified that he was no longer dangerous. Free since last March and getting conventional psychotherapy, he is no longer interested in brain surgery, and he hopes he can "live and make a life for myself with what I have." He also faces, however, the possibility of being prosecuted for the murder of the nurse.

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