Lubbock has a much higher than average traffic fatality rate. We have tradtionally not filed any type of homocide or manslaughter case when only one act of negligence ( i.e. running red light, failure to yield right of way, speeding etc.) caused death or serious bodily injury.

What is your office doing in these types of cases? The radio and media is talking this up pretty good and I want to be solid in my position. I am willing to change our position if I am missing the boat on this. Thanks.

There are plenty of published cases establishing that a single act of negligence (running a red light; being distracted by a cell phone; speeding) is sufficient to prove criminally negligent homicide. Are we now going to distinguish those cases based on our feelings for the goodness or badness of the defendant? What's wrong with letting the grand jury make the decision?

[This message was edited by John Bradley on 11-13-03 at .]

Those "feelings" are not derived in a vacuum, they are based on the individuals' respective records. In the hypo presented, you have one def who has demonstrated a habitual disregard for the law and the risks associated with its violation. The other (potential) def, given the ubiquitous quality of cell phones in current society, barely if at all rises to the "gross deviation from orp standard of care" under the circumstances as viewed by the actor, especially if the hundreds or thousands of previous occasions she has answered the cell while driving has not resulted in any problem. So, o.k., you can technically perhaps get an indictment, but would you really treat them the same? And btw, what does the victim want to have happen? I'd bet that most victims in this situation would want civil rather than criminal penalties applied to soccer mom.

In these cases, the victim is dead. The victim's family largely wants someone held responsible for carelessness. Strong feelings emerge and I think it is dangerous for a prosecutor to make himself/herself the decisionmaker. What's wrong with letting a grand jury decide the community standard?

When I say "what does the victim want" I mean the family, who are at least in the abstract best qualified to speak for the deceased victims. If a prosecutor makes the decision to take the case to the grand jury, let's face it, the prosecutor can get an indictment if they want one. Either way, if you take it to the grand jury or if you don't (or if you present it to the grand jury in a manner intended not to result in an indictment) you have made the majority of the decision. The "community standards" argument is a compelling one, but does a prosecutor always need a grand jury to tell him/her what those standards are? It may be egotistical to say it, but maybe it's also a prosecutor's role to help steer those standards (by, for example, a "zero tolerance" for domestic abuse, where community standard may prefer to let the battered spouse decide not to prosecute).

I agree with John. The Soccer Mom has killed two children. Her case should be presented to a grand jury. If she is of such good character, etc. then deferred adjudication or probation will be available as punishment for her if she is indicted.

I don't see it as a waste to have the grand jury determine the standards, but I for one (and a soccer mom too) think that if talking on the phone is more important than killing someone, that there ought to be an indictment for manslaughter. Just my two cents.

I've taken two of these cases to a GJ...one in which the young female driver habitually sped on the rural road where she ironed out a young Doctor checking his mail. The GJ indicted her. The second was a very convoluted set of facts with a driver of a 18-wheeler whose driving record was impeccable. The accident resulted in the death of an 11 yoa girl....the GJ no-billed him. I believe if a GJ has all the facts they usually make the right call.

Sure, a prosecutor can steer a grand jury, but that isn't what is supposed to happen. Particularly with close cases, prosecutors should simply be educators. Give the grand jury the law and facts that they need to make a decision. Let them have healthy debates and reach a community standard.

The loss of a life to negligence is a serious problem. The Legislator recognized that when they changed Criminally Negligent Homicide from a misdemeanor to a felony in 1994. That was a message that should be accepted.

We make progress in understanding how we should behave by the messages we receive over time from grand and petit juries. Perhaps we are in a rather early stage of understanding cell phone conduct in a car. The same could have been said at some point on the use of seatbelts. But, over time, as a result of accidents, we have changed our point of view.

That progress never happens if a prosecutor arbitrarily shuts off debate in the community over the standard.

Sure the prosecutor shouldn't steer. But it happens, to some degree, in every case. A prosecutor controls what information is presented, how it is presented, and by what witnesses. One of the posts said, "present all the facts and the grand jury will make the right decision." That's a great concept, but again, who decides when "all the facts" have been presented? It's unlikely that without a subject's defense attorney in the room steering her testimony, the way a prosecutor steers that of the prosecution's witnesses, her side of the story can be presented with equal force. I'm not even sure it's possible for a prosecutor to present a case in a 100% objective manner under the rules, and to say it happens as a matter of routine, at best invites skepticism.
All of which is definitely NOT to say we don't have a good and fair system, because we generally have good and fair prosecutors, using their judgment, ensuring justice. It is to say that simply deferring all decisions to the grand jury on whether to prosecute someone can be a poor substitute for sound judgment and strength of conviction. And very easy for me to say, since I'm not elected.

Three days ago I had an 80 something year old man who had recently suffered from a stroke resulting in partial paralysis involved in a fatality accident. He is legally blind in one eye and has very poor vision in the other. His family has attempted to keep him from driving by hiding his keys. He found the keys and drove to the local vetrans day ceremony at the VFW. After leaving, he drove into a construction zone striking a flagman, killing him. I am still waiting for a complete accident investigation but it appears he simply did not see the flagman or realize he was in a construction zone until it was too late. I am not looking forward to making this call as my initial feeling is to charge him. One of my ADA's thinks it is a no brainer......lock him up.

At the risk of whining ... I have 400 felony indictments a year to handle with a staff of four people (that includes investigators and secretaries). I exercise prosecutorial discretion in cases such as these out of pure necessity. I have on occasion taken such cases to the grand jury but only when I believe the facts clearly show an egregious disregard of the risk. I can recall one case where a young male driver was speeding and passing cars on the shoulder, flipped his vehicle and killed his girlfriend. I prosecuted that case even though no one (and I mean NO ONE) wanted me to (after all, the kid was a star football player). On the other hand, I have had cases when a brand new teenage driver fails to see a car in the next lane and cuts it off, resulting in two deaths. Completely different. Sometimes a wreck is just a wreck. I exercise prosecutorial discretion all the time in deciding whether I think a weak case should go to grand jury. I see no difference here. I look at every case for it's individual merit. I have never agreed with zero tolerance charging policies. Every case is unique. Every time I hear a prosecutor say, "We never [fill in the blank]," I am always skeptical because I know that sooner or later a case is going to come along which will make you eat those words. So my response is always, it depends on the case.

We have had a rash of accidents in our community of late. They are accidents that could have been avoided and transcend the typical traffic accident that ordinarily should not be prosecuted criminally. We, too, are grappling with whether we should try to address this problem through the criminal justice system. We are leaning in this direction: when a community is faced with an epidemic of fatalities caused by carelessness - such as those caused by a driver reaching for a cell phone, running a red light and killing someone - doesn't the criminal justice system have a role in sending the message that such conduct cannot be tolerated? If a prosecutor and grand jury, in good faith, can make an argument for criminal negligence, and prosecuting such a case will raise community awareness and save lives, shouldn't we do something?

And, by the way, the example at the beginning of this string really misses the point. You cannot compare the "soccer mom" scenario with a repeat DWI offender getting drunk and killing people. The former may be a state jail felony, the latter is Intoxication manslaughter or even felony murder. There is no comparison.

I, too, have grappled with the same decisions. Like Bill Sowder, I look to see if there is more than one act of negligence. If there is, then I let the Grand Jury decide. The public and the media now expect criminal charges any time there is a death. But I agree with Tim Cole---sometimes an accident is just an accident. Obviously the safe thing to do is take it to Grand Jury.

I am still waiting for someone to articulate an objective standard for deciding when the death of someone by motor vehicle is "just an accident." Is there an unofficial rule that one act of negligence can never be criminal negligence?

John, one act of negligence will satisfy the legal requirements of the statute. Just as one act by a 17 year old walking into an open garage and stealing a sixpack of beer will also satisfy the legal requirements of burglary of a habitation. Does that mean that the grand jury must decide whether the case gets prosecuted as a second degree felony or can you as the DA make a discretionary decision to give the kid criminal trespass? Again, my decisions to go to grand jury depend on the circumstances but I can and do have the discretion to decide that it is not appropriate or necessary at times even when the facts might satisfy the statute.

It's just my own personal opinion, but I think anytime you have a dead body and the possibility, however remote, that a crime was committed, a grand jury should make the decision. And that grand jury should have the facts and the law presented to them in a neutral manner.

I'm always a little offended when a defense attorney repeats the old refrain about a DA being able to get a ham sandwich indicted, and it sure makes me uncomfortable to hear such implications from another prosecutor. If I have to beg a grand jury to indict a case, is that a case I really want to try? I have plenty of decent cases to try, and really don't have the time to try a case that was so weak that I had to plead with a grand jury to get an indictment. So even if I didn't have an ethical objection to making the grand jury an adversarial forum, common sense tells me to be careful what I ask for.

But back to the original topic, where is the harm in letting the grand jury speak as the voice of the community and make that difficult call in cases such as these? Isn't that the purpose of the grand jury?

You all should check with Mark Burtner, county and district attorney in Paris (Texas). I recall he tried a tough neg. hom. case against a nice woman who was speeding on a rainy road and plowed into someone. As I recall, the 2 factors -- speed and the weather conditions -- were enough to go over the top on that...

No problem at all with the grand jury deciding. However, if you take a weak case to grand jury expecting it to be no billed you better be prepared for the true bill that may result. Some of us don't have enough hours in the day to handle our good cases much less the unwinnable (is that a word?) ones. I think its a matter of appropriate allocation of limited resources. Again, some of us just don't have the resources to let the grand jury decide in every case that is submitted to us. Hell, I get a lot of cases sent to me that no one would ever convict just to pass the old buck along. I see part of my job as making those decisions.

It is my policy to take every case with a dead body to the Grand Jury. I have had problems with the Grand Jury indicting out of sympathy on the theroy its not their decision on guilt or innocence, just probable cause. Then I had a case that I felt was too weak to justify a trial and risked inflaming the victims family if I dismissed. I have considered changing my policy. I am glad to see that I am not the only one wrestling with these issues.
I do not think there is an easy answer.