Nov
08

The Rhetoric Of Accountability Backfires On Prosecutor

I did not get a chance to head out to Milford to watch any of the trial of Jason Anderson, the former Milford police officer involved in the high-speed collision that killed two teenagers. Frankly, I don’t like watching other lawyers try cases; it’s sort of like watching ice melt. When you try a case, all moves quickly, there are many decisions to make all at once: how to frame the next question, how to read the jury’s attitude, how to anticipate what a judge will do next — all this in the context of the high-stakes of trial where someone’s life is on the line. Watching trial is slow-motion torture; trying a case is dancing on hot coals.

But I did read about the Anderson case, and I am troubled by what I read.

According to press accounts, Milford State’s Attorney Kevin Lawlor stomped his foot and banged the lectern demanding that Anderson be held accountable for his conduct.

“Jason Anderson was supposed to protect and serve the public. Racing down Boston Post Road that night at 95 mph, he protected no one,” Lawlor said. “This kid pulled in front of a speeding bullet.”

Lawlor wanted to send Anderson to prison for a good long stretch, so he charged him with manslaughter with a motor vehicle, asserting that Anderson engaged in reckless conduct with his cruiser. Anderson faced up to 20 years if convicted of both counts by the jury, 10 years for each victim.

The jury rejected Lawlor’s histrionics, and voted not guilty on the manslaughter charges. I suspect that jurors did so because they took Lawlor’s appeal for accountability seriously.

No one doubts that Anderson was wrong for speeding down the Boston Post Road the night his cruiser slammed into a car driven by 19-year-old David Servin. Both Servin and his passenger, Ashlie Krakowski, also 19 years old, were killed in the crash. Anderson was clocked doing speeds in excess of 90 mph early in the morning on June 13, 2009. He should never have been traveling at that speed. He was on duty as a cop. He knew the law. There was no exigency requiring him to treat the Boston Post Road as a drag strip.

But neither was there an excuse for Servin to be driving while intoxicated. His blood alcohol was .14 at the time of impact, almost double the permissible limit. He did not come to a full stop at the intersection, he cruised through a traffic light, he made an illegal turn, and he failed to yield the right of way, according to Anderson’s lawyer Hugh Keefe. In the eyes of the law, Anderson played a role in causing the deaths, but Servin’s driving was, according to the jury, an intervening cause.

Causation is a commonsensical concept until turned over to lawyers. Lawyers distinguish cause-in-fact from proximate cause. And then things get even more complicated by the addition of superceding and intervening causes. In the Anderson case, the issue of causation torpedoed the state’s case.

A cause-in-fact is an event necessary for some later act to occur. Thus, should you at some point today trip and fall, you can blame the manufacturer of your alarm clock for the event. Had the alarm not rung, you might never have left the home in time to have an accident. But, typically, such causes are remote from the event at issue. It is unreasonable to say that the alarm clock’s ringing at 6 a.m. caused noon’s accident, no matter how necessary the alarm was to getting you up and on your way.

The doctrine of proximate cause places a limitation on the causal chain of events, assigning responsibility to the events near in time and place to the event. Don’t be put off by the vocabulary — proximate merely means near.

What if other events occur at the time of an accident, events so significant that they alter the chain of events? A superceding cause might dominate, or overcome, other potential near causes of an event. So, too, might an intervening cause. Thus, in the Anderson case, the officer’s speeding car was a cause-in-fact of the crash. It was also a proximate cause. But the jury concluded that the intoxication of the driver was an intervening cause. What does that mean?

In a civil action, a jury might assign percentages of fault to the various parties. It might have concluded that Anderson’s behavior was 70 percent of the cause of the accident, and that Servin’s conduct accounted for 30 percent of the blame. Such relative assignments aren’t made in criminal cases. The criminal courts are an all-or-nothing sort of forum.

Confusion reigned late in the Anderson deliberations. The jury found him not guilty of reckless manslaughter. In making that decision, jurors checked a box indicating that Servin’s intoxication and conduct was an intervening cause. Does that mean that Anderson cannot be found guilty even of the lesser charge of negligent homicide? The trial judge thought so, and vacated the jury’s verdict of guilty on the negligent homicide count. (The difference between these two forms of homicide comes down to the state of mind of the defendant: A person is reckless when they engage in risky conduct despite awareness of a serious and unjustifiable risk of harm to another. A person is negligent when they are careless. Negligence is less culpable than recklessness, and both are less culpable than intentionally taking a life.)

In the end, Anderson was found guilty of misconduct with a motor vehicle and reckless driving. He has plenty to work with on appeal.

I think the jury got it right on the homicide counts in the Anderson case. Yes, speed kills, as Lawlor told the jury. So does driving while intoxicated. Poor Ms. Krakowski was twice victimized, falling a victim to the drivers of both cars, who share in the responsibility for her death.

It’s far too easy to make a crime of every accident. These deaths were horrible and avoidable. But the prosecution of them was overplayed and bordered on the histrionic.

No one won this case, but the State of Connecticut lost. Who holds the state accountable for improvident prosecutions? Answer: No one. Some world.

Reprinted courtesy of the Journal Register Co.


Nov
06

I Don't Feel Like Much Of A Sovereign Today

I did not feel like much a sovereign when I walked out of the polling place this morning. No, I felt as though I’d just been tossed from a fast-moving car after a six billion dollar – the sum spent on political advertisements this year – joy ride. Oh, yes, I cast a ballot in favor of a presidential candidate. I also voted in the race to fill a seat in the United States Senate. And, true to many years’ custom, I wrote the name "Clarence Darrow" into the slot for House of Representatives: although the famous American trial lawyer has been dead for many years, I at least have the pleasure of knowing what I’ll get in exchange for that vote.

But the act of voting itself has the taste of a stale communion wafer: is this the body and blood of popular sovereignty? Audacity of hope unfulfilled versus Clark Kent’s revenge hardly seemed like a choice.

I know the theory. The act of voting is a form of civic participation. We justify the death of young men and women in the Armed Services by saying they gave their lives so that we can vote. The patriotic gore we slosh about makes it all sound so grand. But on the morning after the vote, what, really, changes?

In the 1930s, an American political scientist named Harold Lasswell wrote a now-classic book entitled Psychopathology and Politics. His thesis was simple: Men -- at the time he wrote, the candidates were all men – turn to public life because of deeply rooted, and often disturbing, character traits. Politicians are often driven by needs happier people don’t have, such as the need to control others, the need always to be atop the pyramid of desire, the need to compensate for terrifying weaknesses that make the humdrum lives most folks live unsatisfying. Politics, or at least the pursuit of elective office, is, on Lasswell’s view, the blood sport of the disturbed.

I suspect there is more than a grain of truth in Lasswell’s theory. Read about the life of an elected official, and it seems an extended trip through purgatory: always fund raising; always on display, with every stray remark dissected; always seeking to bend the perception of each act toward the goal of re-election. Who’d want the job?

So perhaps it is inevitable that a trip to the polling place feels less like patriotism than it does plumbing. Walk in, hold your nose, and get the job done. That’s just what I did on Tuesday, and I suspect plenty of others felt the same way.

I’m sure more than a few of you will be offended by these remarks. It is, after all, frightening to state aloud that the reality of the lives we live does not match the rhetoric of our dreams. We are a city on a hill, aren’t we? We’re the envy of the world, right?

Herewith some sobering statistics: One in six children in the United States live in poverty; the gulf between rich and poor widens year by year, with the so-called one percent, those at the top of the heap, controlling 43 percent of the nation’s wealth; our standard of living is declining in terms of health and education as compared to other Western nations. We bail out bankers who are too big to fail, and imprison more people per capita than any other nation on Earth, with the jailer’s ax most often falling on the necks of people of color. What happened to the land of the free?

The promise of political participation means little if it is reduced simply to pulling a lever, or filling in a blank on a pre-printed ballot, after corporations have spent billions of dollars on pollsters to manipulate voters regarded as little more than sheep. One gets the sense today that the two major parties represent different nations, both speaking past one another in an effort to solidify its base of supporters while attracting independents as best they can. Politics has become the art of saying everything and nothing at once, a form of high-stakes liar’s poker.

Aristotle had an edifying view of citizenship. He regarded a citizen as anyone capable, both as a matter of fact, and of law, of deliberating about the issues of the day. That deliberation typically took place in an open forum. All Athenian citizens could gather together in a public place to listen, debate and vote. Citizens were capable of reasoning together. He cautioned that a healthy state would be small; perhaps no larger than the distance a herald could cast his voice.

We are a continental nation in search of an identity. By 2041, Caucasians will be in the minority in the United States. We’ve red states and blue states of vastly differing political cultures. The prosperity that once united us and made us welcome others now yields to a desperate sense that there isn’t enough to go around: we need to shore up the boarders and hoard what’s left.

The polling place seems like empty noise. I want something I can touch, something I can see, and feel, and know to be real.

Where can we turn to build a sense of community in a true, Aristotlean, sense? There is only one forum left in which ordinary citizens can meet face to face to decide important issues, and that place is a jury room. Yet jury trials are dying. Commentators speak of the "vanishing trial." Increasingly, cases are resolved not by an appeal to community standards, but by judicial ruling or plea bargaining.

I say juries can save the republic, if we let them do so. Let juries decide the important issues people bring to court. Let juries decide not just the facts of a case presented to them, but whether the law applicable to a case makes sense. Let juries speak as sovereigns, not as voters on issues others have already decided.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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