Friday, May 29, 2015


ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN AND MOTIONS FOR CHANGE OF VENUE: Edgar Lee Masters gained immortality by writing a series of poems entitled Spoon River Anthology , but he gained infamy in his lifetime by...

Wednesday, May 20, 2015


A recent tragedy in my hometown got me to thinking about prosecuting parents for negligent injury to their children—particularly deaths caused by leaving children unattended in parked cars. I was never presented such a case for prosecution, but I have handled numerous other types of injuries and deaths resulting from parental neglect. I thought it might be helpful to go through the stages of the charging decision and speak about them in the context of prosecuting parents who negligently injure or kill their children.

The first step is the Provability evaluation. Can a charge be filed? Florida law defines child neglect as:

A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child. …

In most situations mere negligence is not enough to warrant criminal liability. Florida law calls this sort of negligence “culpable negligence.” Florida’s child abuse statute requires that there must be culpable negligence before the parent is criminally liable. When culpable negligence is an element of the crime, juries receive the following instruction:

Each of us has a duty to act reasonably toward others.  If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.  But culpable negligence is more than a failure to use ordinary care toward others.  In order for negligence to be culpable, it must be gross and flagrant.  Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others.  Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

When a parent is neglectful, does it rise to the level of culpable negligence? If not, there is no criminal liability. If so, then the next question is did the neglect cause any harm? In most cases of neglect, the law follows a sort of “no harm, no foul” philosophy—but not in cases of child neglect. If no harm was done, then the parent is merely guilty of a third degree felony punishable by up to five years imprisonment. If the child suffered great bodily harm, permanent disability, or permanent disfigurement the parent is guilty of a second degree felony punishable by up to fifteen years imprisonment.  If the child dies as a result of culpable negligence, then the crime is manslaughter of a child, it is a first degree felony, and the penalty can be up to thirty years imprisonment. Fla.Stat. 782.07(3).

Where the decision gets difficult is trying to decide how much negligence is culpable negligence. Here are some hypothetical cases:

(1) A father with a borderline IQ is giving his child a dose of medicine. The child is very sick, and the father reasons “If the prescribed dose is good, then double the prescribed dose must be twice as good, and triple the does must be three times as good.” He gives the child a whopping dose of the medicine and kills it.

(2) A mother loves to sleep with her newborn infant. She has been warned not to do this because she is such a sound sleeper. She does it anyway. She rolls over onto the child and smothers it.

(3) A mother driving on a busy street sees her ex-husband and decides to give him the one-finger salute. She holds her arm out the driver’s window for maximum visibility, yells at him, and looks intently in his direction to see if he notices. While her attention is distracted, she rear-ends a log truck and her child, who is not restrained, is killed.

Are these situations where the neglect rises to culpable negligence? Would an unbiased jury which properly follows the law return a verdict of guilty against the parent? If so, you move to the next step in the charging decision, the Propriety evaluation. Do not under any circumstances, however, make a snap decision. Think about the facts, research the law, review all the evidence, determine what evidence is going to be admissible, determine what evidence is going to be inadmissible, and then you’ll be in a position to make an informed decision.

In some cases, even though a crime has technically been committed, and even though a jury would find the defendant guilty, the ends of justice are better served by not prosecuting. My favorite illustration of this point comes from a case I tried over 40 years ago when all traffic offenses were crimes. I defended a man who didn’t stop at a railroad crossing and got run over by a train. His offense? Failure to yield right-of-way to a train. In my book, failure to yield right-of-way to a train is a self-punishing offense, but just as soon as my client got out of the hospital, he was arrested. Justice was done in the end, however, when the jury returned one of the fastest not guilty verdicts I ever saw.

I always had mixed feelings about prosecuting parents who negligently injured or killed their children. Surely they had broken the law, but if they were conscientious parents they were just as surely suffering a punishment far worse than any the law could mete out. I want to “go outside the crime scene tape” when investigating a crime and making a charging decision. What are the surrounding circumstances and how do they impact the case? In the case of criminal child neglect, I wanted to know more than just what happened when the crime occurred. Sometimes it only takes a split second, and your life is irrevocably changed. I wanted to know more about the parent than what he or she did in a single interlude of inattentiveness. I wanted to know the family history. If the negligence was an aberration, that might call for one decision. If it was part of a general pattern of neglect, that would call for another.

In the third stage of the charging decision, the Prudence stage, you ask two questions: What sort of a disposition does justice require? What is the best charge I can file to insure that I’m going to get that just disposition?

I’ve discussed these three decisions (Provability, Propriety, & Prudence) sequentially because they are easier to discuss one at a time, but they are like the Twelve Steps of AA. Just as the Twelve Steps can be worked on out of sequence, the three charging decisions can be (and usually are) worked on out of sequence. And you don’t have to consider the decisions one at a time; you can work on all three of them simultaneously.

Making the charging decision is the most distinctive part of a prosecutor’s job. And if you’re conscientious, it’s the most difficult part of the job. Sometimes I’ve been able to make an immediate decision to file or not file. Other times I’ve agonized over what decision to make. And after the case was over, I’ve agonized about whether I made the right decision. I suspect that some of those decisions will bother me for the rest of my life.


ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN'S FIRST MURDER CASE -- THE COURT RECORD: Thinking that it might be interesting to read the actual court record of one of Lincoln's murder trials, I chose to reproduce the record...