Scott Henson at Simple Justice writes about the word Murder losing its meaning. Of a man recently convicted of second degree murder in New York for an Intoxication Manslaughter offense, Scott wrote:

It's not to say that McPherson was an innocent man. He was not. It's not to say that McPherson's conduct was excusable. It was not.

But Franklin McPherson did not commit murder. To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor. McPherson was drunk…

In New York, ‘creative’ prosecutors are proceeding under the theory that the defendant acted with depraved indifference to to human life.

Read Scott’s post for why this is faulty legal reasoning. But how did we get to this point – that is, the point where the general public believes this is appropriate? Scott continues:

As has become so very popular, an appeal to emotion is hidden behind vague things that seem to make sense, provided one doesn't let things like the law get in the way. This has long been the push by advocacy groups such as MADD to create a growing public intolerance for drunk driving, and create the impression that ever-increasingly harsh charges and punishments are the only way to stop this plague.

The problem is that these groups have been so successful, and politicians have basked in the reflected glow of this success, that when reality gets in the way of these PR campaigns (meaning when convictions for murder do nothing to stem the tide of drunk driving), they need to find yet a deeper, harsher, more horrific penalty to impose. Yeah, if only they got the death penalty, that would fix the problem!

The reason why they are slaying imaginary dragons is that this is not the crime of murder. It never was, and never will be. Drinking too much and getting drunk is not something that one contemplates as part of a violent crime. Driving home drunk, every stinking drunk, isn't meant to cause harm. It's meant to get home.

In Texas, prosecutors have a gone a different route. Here, where a 3rd DWI conviction is a felony in and of itself, prosecutors have taken to charging Intoxication Manslaughter defendants with Murder if the they have 2 prior misdemeanor convictions for DWI under the ‘felony murder’ rule.

The felony murder rule is a legal doctrine that removes the usual requirement of intent in a murder prosecution and simply holds a defendant responsible for murder if a death occurs while a felony is being committed. Hence in Texas, 2 prior DWIs + an intoxication manslaughter today = a murder prosecution tomorrow.

The problem with this theory is that it means the defendant’s prior convictions are actually what elevate the Intoxication Manslaughter charge to murder. In other words, the entering of the plea on the previous cases or the finding of guilt by the jury is actually an element of the offense of Murder itself.

That doesn’t make sense.

Right now, in Texas, DWI defendants charges with Intoxication Manslaughter face the possibility of a 20 year sentence – certainly that’s enough for an unintentional crime. But if it’s not then the Legislature should simply increase the penalty for that actual offense. Ambitious legal theories advanced by creative prosecutors – or is that creative legal theories advanced by ambitious prosecutors? – should not be the basis for a Murder charge.

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From Chapter 12 of Alice’s Adventure’s in Wonderland:

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice.

“Sentence first, verdict afterwards” is a classic line for criminal defense lawyers. Fellow Austin lawyer Leon Grizzard said it to me in court not less than a month ago. It popped back into my head when I read this story about a DWI case in the Houston Chronicle:

On the afternoon of the third day, the jury retired to consider its verdict. And that's when it got interesting.

While the jury was out, according to Price and her attorney, Paul LaValle, the judge started talking about what the sentence would be when the jury came back with a guilty verdict.

Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.

The judge also said if Price tested positive, the results would be given to the jury, says LaValle…

So far, we only have a judge manufacturing extra punishment evidence for the prosecution. It’s a little out of the ordinary… but wait, it gets better:

Before the drug test could be arranged, the jury returned with its verdict.

Not guilty.

Price wasn't surprised. She said she felt the video clearly demonstrated that she wasn't drunk. Still, she was relieved. She was free.

Or so she thought. But Judge Johnson had different ideas. Having ordered the drug test, she instructed the bailiff to take Price away for the drug test.

That’s right. Over the defense lawyer’s objections this acquitted defendant was ordered to go take a drug test and then even forced to pay for it. For all the problems in Federal Court with taking acquitted conduct into account for increasing punishment, at least you have to be convicted of something.

So I guess we have to rearrange the saying. It’s not sentence first, verdict afterwards, it’s

Not Guilty First… Then the Sentence

Even better. After all, if you’ve prejudged what the defendant should get before the jury comes back, it wouldn’t be logical to let the jury’s decision stand in your way.

[Hat Tips: AHCL, Underdog & Blue Carp]

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You can click the topics and tags in this blog to see my various thoughts on the over-punishment of DWI convictions in Texas. For ‘just a class B misdemeanor’ it’s inarguably the most penal of anything else in that category in the Penal Code.

And in general that’s a fair and relevant subject for DWI bloggers to write about.

Near the top of my list of DWI blogs on my RSS reader is Lawrence Taylor’s granddaddy-of-em-all DWI blog, simply titled “DUI Blog”. (Those Californians call it D-U-I.) Taylor’s blog is aptly subtitled “Bad Drunk Driving Laws, False Evidence and a Fading Constitution”.

Taylor always does a great job of bringing us the latest and greatest in ridiculous DWI/DUI prosecution moments. See for example his recent post: DUI - While Walking a Bicycle.

And so with great anticipation I click on an even newer post titled “First DUI = West Point Expulsion + 1 year in Prison”. Here are his intro remarks on the article:

As Draconian as DUI penalties have become, one would nevertheless hope that the offense would not destroy the accused’s life, at least for a first offense. Increasingly, one would be wrong…

Great another example of Lawrence’s niche topic, which I will sum up as “MADD has driven us all mad”. And of course he’s right – most of the time – first time DWI penalties are too stiff, and this one sounds ridiculous.

Here’s what Lawrence cut and pasted from the news article:

A U.S, Military Academy cadet was found guilty of drunken driving by a military judge and sentenced to dismissal from the U.S. Army yesterday.

The verdict came less than three weeks before Dixon was due to graduate with the class of 2008.

Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman…

The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.

Well, that certainly fits the bill. Perhaps getting kicked out of West Point is appropriate, perhaps it’s not – but one year is waaaay to high a punishment for “just a DUI” – especially a first time offense. Unreasonable, capricious, arbritary, unfair, in other words: great material for a DWI blog.

There were a couple of things that didn’t ring 100% true to me though. Number one, although I’m no expert on Military law nor what gets you kicked out of West Point, I thought conduct unbecoming an officer was a little odd for a DUI. That might actually be true and I’ll try to check on it with my military defense lawyer friends over the next few days. I’ll report back if anything comes of it.

But number two was the ellipsis. I use – or perhaps overuse – parentheses, dashes and all sorts of unnecessary punctuation. But the dot-dot-dot after the next to last paragraph preceding the part about punishment. What could it be? Well here’s that portion of the original article with the quoted paragraphs before and after:

Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman.

Dixon allegedly fled the scene and giving a false official statement after being involved in a drunken driving accident while on temporary duty in Maryland last July.

The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.

[Emphasis Added]

Ah. That explains a lot now doesn’t it? Sounds like ‘conduct unbecoming’ and theoretically would justify a higher sentence. A defense lawyer could certainly argue that the sentence here was still too high, given all the facts, but hiding that and pretending this is the wave of the future for first time DWI sentencing?

Stick to the facts and don’t embellish, even by omission. DWI penalties are indeed too high as is. Don’t lose credibility by getting caught in what now seems like a deliberate misrepresentation. After all, that dot-dot-dot didn’t come out of nowhere.

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