that the driver was aware of and consciously disregarded a substantial and unjustifiable risk, of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from his standpoint, that the little girl would die(that's the standard, from section 6.03(c) of the Texas Penal Code, for proving criminal recklessness)? Maybe the prosecutor expected the jury to hear that a little girl was killed and want someone to pay regardless of the law. According to the juror who spoke to the press, some jurors had this attitude, but to their credit the jury was able to overcome that impulse and follow the law. The prosecutor, in a vain attempt to show himself to have decent judgment and a sense of proportion (he had first tried to charge the driver with murder) admitted that it was a "difficult case from the beginning." But, he said, "to honor [the child] we had to try to make sure he was held accountable for his actions." Honor the child?!? There is something primeval about the idea of "honoring" the dead child by putting the driver in a box. He did all he could do. Nevertheless he killed a child. He will have to pay emotionally for that forever. The parents of the child had, to their great credit, forgiven him. I suppose that taking away his freedom, destroying his family, would be the 21st century equivalent of propitiating the gods with a human sacrifice, but it's unworthy of us as human beings. It's also a huge waste of resources. Taking the man away from his family wouldn't have helped anyone, and it wouldn't have made the world a better place. Prosecuting him didn't help anyone, and it didn't make the world a better place. The state spent tens of thousands of dollars prosecuting the driver, for naught. Imagine that that money, as well as the tens of thousands that the driver likely had to pay for his defense, had been spent making the world safer or happier or more beautiful. We could have enhanced traffic safety -- hired a crossing guard or educated children or put orange flags on the backs of bicycles. We could have built playgrounds. We could have planted flowers. All in honor of a young life lost. But if your only tool is a hammer, every problem looks like a nail, and if you're a rampant prosecutor with ambition every accident looks like a crime. Prosecuting the driver didn't honor the child; it dishonored her by using her name to serve the prosecutor's own ends. I don't mention the name of the child because prosecuting someone in her name is such a shame. I don't mention the name of the driver here because he doesn't deserve the bad publicity. I don't mention the name of the prosecutor because he doesn't deserve the good (to a lawyer, there is no other kind) publicity. I expect that some day soon the prosecutor's ambition will burst free and he will be running for public office (maybe District Attorney, which position doesn't require a surfeit of good judgment). Then he will be counting on the name recognition that he gets from expensive destructive publicity stunts like this one. I'm not contributing to that campaign.
Friday, June 8, 2007
Honoring the Dead with Destruction?
Today's big criminal defense story is this: two of Houston's best lawyers, Stanley Schneider and Robb Fickman (no good link to Robb), prevailed in the trial of a bus driver accused of manslaughter for accidentally running over and killing a 9-year-old girl. The driver was acquitted.
In a post-loss interview the prosecutor washed his hands of prosecutorial discretion, claiming, "All we ever wanted to do in this case is to let a jury decide." Never mind that it is his job to separate the cases that should be tried from the cases that shouldn't.
So what did the jury decide? According to one of the jurors, "Ninety-eight percent of the evidence pointed to [the driver] being correct. He did all he could do." (My emphasis; I wasn't there, but I will bet that the driver's first-rate defense team used that same phrase many times during the trial.)
The driver did all he could do. And yet the prosecutor charged him with manslaughter (actually, the prosecutor charged the driver with murder at first, but the grand jury declined to indict the driver on that charge). Why did the prosecutor, despite a paucity of evidence, think that he could get a jury to find beyond a reasonable doubt:
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4 comments:
Respectfully, I'd like to counter that the corpse of a dead young girl obviously run over by a bus is prima facie evidence that somebody somewhere was certainly wreckless and deviated from the norm, since it is not everyday little girls are run over and killed by buses in Texas.
The question as to whether the driver "did all he could..." is one of fact for the jury, I believe.
Also, Texas has been going the distance and then some when it comes to the protection of children. Indeed, the 5th Circuit has held they have gone too far in certain CPS cases, but the prosecutor acted with the zeitgeist or spirit of theses times in boxing the defendant in this case.
I make no comment on whether the jury decided correctly. I am fairly confident juries do what they are charged to do by the courts.
Thanks for the comment, Mark.
There is no question that the prosecutor was acting with the zeitgeist; that's what politicians do. What passes for "the protection of children" in Texas is often just a big political feel-good suckhole.
A dead child may suggest negligence, but recklessness, which is a much higher standard than negligence, is another question entirely. And when "ninety-eight percent" of the evidence points to the driver being correct, you have to wonder why the prosecutor thought that public resources would better be spent prosecuting the driver than doing something that would actually "protect children."
(The more I think about it, the more I like the idea of orange flags on kids' bikes. One of those flags on a four-foot pole might well have saved this little girl's life. A hundred thousand dollars worth of those flags would go a long way toward protecting children. But nobody ever got elected for spending public money on geeky orange flags.)
Mind if I go a step furter on Mark's assumptive criminality by dint of a dead girl?
The death of a child is a tragedy. But the end result does not determine the cause. Sometimes people are killed because of crime, sometimes negligence and sometimes, it just happens. Sometimes there is no fault to be laid, though that cuts against our grain as we are certain that for every bad outcome, someone must be to blame.
We need to break this cycle of needing to find someone guilty of something every time a bad outcome happens. It blinds us to right and wrong, and does not nothing to eliminate the tragedy.
SHG
Last Monday I was rear-ended while sitting at a stoplight. The guy who hit me said that his brakes weren't working, and he was going to get them fixed. I hurt my neck.
Under Texas law, causing bodily injury (which means pain) to someone recklessly is a class A assault. Could the guy who hit me have been prosecuted for assault? No doubt. Should he have? Hell, no.
Putting him in jail would not have made my neck feel better. It wouldn't have paid for the damage to my car, and it wouldn't have made the streets significantly safer. It would, however, have cost society a lot of money.
He shouldn't have been prosecuted for assault. If the cops had been called and had referred the case to the DA's office, the DA's office should have declined charges. That's a proper exercise of prosecutorial discretion.
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