The article on the home page references the legislative intent/history of the felony murder statute as one senator sees it. I was reminded of Scalia's comment on the value of legislative history in construing a statute. He said looking to "legislative history" was the judicial equivalent of walking into a party and surveying the room to see if there is anyone present whom you know.

[This message was edited by BLeonard on 12-07-05 at .]

interestingly, there's also an article in the chronicle about Hon. Susan Reed using the felony murder statute just like Warren to try a perjurer for murder. it makes me wonder if Whitmire would come out against that prosecution as well.

Pasadena bus driver faces manslaughter charges

By ERIC HANSON
Copyright 2005 Houston Chronicle

A Pasadena school bus driver was indicted by a Harris County grand jury on a charge of manslaughter in the case of a 9-year-old girl who was killed by a bus on her way to school.


The grand jury that indicted Jerry Michael Cook, 41, declined to issue indictments on the more serious murder and the less serious negligent homicide charges a prosecutor filed against Cook in October.

In a case decided today by the CCA, Judge Cochran provides an explanation of the difference between simple negligence and criminal negligence:



I join the majority opinion. I write separately only to emphasize the fine, but marked, legal line between civil negligence and criminal negligence.

Civil or "simple" negligence "means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances." (1) And "ordinary care" means "that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances." (2)

Criminal negligence, however, requires a significantly greater degree of deviation from this standard of ordinary care before a person may be held criminally liable. It must be a "gross" or extreme deviation from that standard. And it is measured solely by the degree of negligence, not any element of actual awareness. (3) Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence. A person may be found criminally negligent when he inadvertently creates a substantial and unjustifiable risk of which he ought to be (but is not) aware. (4) And a jury must evaluate the defendant's failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned under the criminal law. (5)

Of course, as the risk of harm increases, so does the likelihood that the person will actually be aware of the risk created by his or her conduct. Despite this increased likelihood of awareness, criminal negligence does not require proof of the accused's subjective awareness of the risk of harm. A person's prior "problems" with a car, truck, or trailer hitch may be considered by the jury in determining whether a defendant's conduct is a gross deviation from the standard of care that an ordinary person would exercise, but evidence of such prior "problems" are neither necessary or sufficient by themselves to establish criminal negligence. It is a defendant's awareness of the attendant circumstances, not his subjective awareness of the risk of harm, that matters in criminal negligence. Thus, if an ordinary person in appellant's position would check to ensure that a trailer was properly secured to his truck with safety chains; that the ball on the bumper to which the trailer hitch was attached was secure and properly attached; that the trailer hitch itself locked properly onto the ball; and that a load of dirt was properly loaded toward the front of the trailer rather than over the rear axle, then appellant's failure to check these items for the ordinary safe hauling of dirt may suffice to establish a gross deviation from the ordinary standard of care. (6) This is true even though appellant himself was subjectively unaware of the great risk of harm or death caused by his failure to perform such safety measures. Criminal liability is imposed because he should have been aware of the substantial risk of death that his failure to both note and repair these numerous deficiencies entailed. (7) Had there been only a single deviation from the ordinary standard of care, e.g., had appellant exercised ordinary care but for the failure to attach a safety chain between the trailer and truck, then his conduct in "failing to properly secure a trailer to his truck" might constitute mere simple civil negligence, not criminal negligence.

With these comments, I join the majority.


Filed: December 7, 2005

Publish


1. Keetch v. Kroger Co., 845 S.W.2d 262, 271 (Tex. 1992) (Mauzy, J., dissenting) (quoting Texas Pattern Jury Charge 65.01).

2. Id.

3. For example, if a grocery store sells unbagged grapes, one of them falls to the floor, and a shopper then slips on that grape and falls to the floor, the grocery store might be held civilly negligent for failing to be aware of the risk that its fallen grapes could cause a shopper to slip and break a leg. It might be criminally negligent for that same grocery store to permit shoppers to enter into the meat-cutting department knowing that the floor is covered with blood and meat detritus and that the butchers are using unprotected automated meat saws, if a shopper slips and falls into a band saw and is killed by its teeth. In both instances the manager may be subjectively unaware of the risk of harm that fallen grapes and unprotected meat saws may create, but he is aware of the circumstances (e.g., the grapes on the floor and the slippery blood underneath an automated band saw), and he should have been aware of the moderate risk of harm in the first case and the substantial and unjustifiable risk of death or serious bodily injury in the second.

4. See Model Penal Code � 2.02 commentary at 240 (1985).

5. Id. at 241.

6. See id. at 243:

When people have knowledge that conviction and sentence, not to speak of punishment, may follow conduct that inadvertently creates improper risk, they are supplied with an additional motive to take care before acting, to use their faculties and draw on their experience in gauging the potentialities of contemplated conduct. To some extent, at least, this motive may promote awareness and thus be effective as a measure of control.

7. In this case, the prosecutor fully and accurately set out appellant's numerous deficient acts in his closing statement, and he discussed the appropriate standard of care. See Court's op. at pp. 9-10.

Jury acquits bus driver in 'tragic accident'
Father of girl killed offers forgiveness

By BRIAN ROGERS
Copyright 2007 Houston Chronicle


Jurors in the manslaughter trial of a school bus driver who ran over a 9-year-old girl fought the urge to punish him for the "tragic accident" and prayed instead for guidance before finding him not guilty Thursday.

"God led us to make the right decision," juror Cedric Kissam said after the verdict. "It was an accident. It wasn't reckless driving."

It was a decision that Harris County prosecutor Warren Diepraam said he respected. Although he failed to prove the state's case to the jury, the assistant district attorney said he stands by his decision to prosecute former Pasadena Independent School District bus driver Jerry M. Cook for the death of Ruth Young.

"All we ever wanted to do in this case is to let a jury decide," Diepraam said. "We fully understand the jury's verdict given the circumstances of the case, the difficulties of this case."

Jurors were sequestered Wednesday night after four hours of deliberation in the nine-day trial. They resumed deliberations Thursday. Kissam said there simply wasn't enough evidence to prove Cook behaved recklessly.

"Ninety-eight percent of the evidence pointed to (Cook) being correct," Kissam said. "He did all he could do."

Kissam, who has an 11-year-old daughter, said he and the other jurors came back to court Thursday morning and prayed together for Young's family, as well as for Cook.

"Some people looked at it because a little girl was killed and wanted someone to pay," he said. "But nobody wants to put someone away for an accident."

Kissam declined to talk about the decisions made in the jury room except to say that he was impressed with his fellow jurors. He said there was no other discussion about religion, and he didn't know the religious beliefs of any other juror. The other 11 jurors could not be reached Thursday.

Prayer also took place outside the courtroom: Cook and his family prayed with their attorneys moments before the verdict was read.

Afterward, Cook's only words were: "I thank the Lord for the victory."


'We have to forgive'

Ruth's father, Mark Young, said he had forgiven Cook for the death of his daughter.
"We're Chistian people. If we expect to be forgiven by God, we have to forgive," Young said. "I don't think it was ever his intention to hurt anyone."

He also thanked Diepraam for bringing the case to trial. Although the state lost the case, Young said it raised community awareness.

Diepraam came under fire early in the case when he indicted Cook for murder in the girl's death.

The charge was later reduced to manslaughter.

Reacting to the loss, Diepraam said it was a "difficult case from the get-go."

"But to honor Ruth we had to try to make sure he was held accountable for his actions," the prosecutor said.

In response to questions about whether the case should have been tried, Diepraam said the case was about traffic safety and holding people responsible for their actions.

The prosecutor said he would continue to thoroughly investigate cases where a child is killed crossing the street through no fault of their own.

Cook's attorney, Robert Fickman, said he wished the case had never reached the courtroom, but he understood that the prosecution did what they "thought was their job."