Honoring the Dead with Destruction?

 Posted on June 08, 2007 in Uncategorized

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:

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.

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