Wednesday, October 28, 2009

There Really Shouldn't Be a Law

It's a subtle point, and one that as a criminal defense lawyer I'm always hesitant in making, but some people really shouldn't be allowed out on the street. At least, if the stories are true.

Consider the Australian driver who killed two people, in virtually identical auto accidents, at the same intersection, seven years apart. (Thanks, Turley; full story here.) In both cases, she entered the intersection without looking to the left to check for oncoming traffic. In April 2000, she killed one John Mitchell, 69, who was driving a highly visible yellow car. In June 2007, it was 51-year-old motorcyclist Graham Bryant. The first time, she was fined $426. This time she was sentenced to 8 months in jail and her license was suspended for 18 months. The Australian Supreme Court suspended the jail sentence. She maintains she's a competent driver. The deputy coroner, who investigated the accidents, differs.
Having regard to Mrs Thiele's driving behaviour in both of these incidents ... I am driven to conclude that Mrs Thiele is a motorist of quite limited aptitude, competence and temperament.
I gotta say, I'm with the deputy coroner, at least as far as her aptitude for learning from her mistakes goes. But I'm also with the Supreme Court. Yank her license for a while, but don't lock her up.

And there's the Linda Vista Elementary School PTA in Yorba Linda that held a fund-raising jog-a-thon. It strikes me that was a bad idea to begin with (though they managed to raise $25,000). Unfortunately, as Ken at Popehat observed, you might want to test out the 800 number you've made up before putting it on t-shirts for the kids to wear. As the OC Register reports,

The T-shirts featured the school mascot – a lion – running with a 1-800 number featuring words instead of numbers.

Problem was, that when you called the number, which one parent did, you got a she/male adult chat line. Ooops.

Look, the world is filled with folks who are dangerously inattentive, incapable of remembering to look before entering the intersection and giving made up phone numbers to kids without checking to make sure they were made up. They have bad judgment. They do dumb things.

I represent a lot of people like that. Every criminal defense lawyer does. If our clients exercised good judgment they mostly wouldn't end up being our clients. But, and this is important, bad judgment is not a crime.

Michelle Thiele would probably do well, once she regains her license, to avoid the T-junction at Pompoota near Mannum, about 80km east of Adelaide. And someone from the PTA should surely learn to use the phone. But there's really no malice in any of this. These things might generate some outrage, but there's really nothing to be gained by doing more than trying to convince Mrs. Thiele and the PTA lady to pay more attention.

Ours is a litigious society. Just check with Roy Werbel who's suing because neither Froot Loops nor Captain Crunch with Crunch Berries actually contains fruit. (Maybe they contain froot or crunchberries, but that's not good enough for Roy.) Kevin, at Lowering the Bar, did the math and issued a warning to the federal court in San Diego.

By my count, these are the sixth and seventh lawsuits in California against the manufacturers of these two fictitiously named cereals. But hey - just because you are 0-5 and your arguments have been openly mocked by judges as well as a large percentage of the nation's bloggers does not mean you shouldn't give it one or two more tries. It does mean that, presumably, PepsiCo and Kellogg's are highly unlikely to settle, and that in two or three months plaintiffs should be 0-7.

Attention, San Diego -- these guys have now tried the Northern, Eastern and Central Districts of California, so I would expect cereal suits eight and nine to be filed in your neck of the woods sometime early next year.

This may seem like overkill, but it's not. Werbel's lawyer didn't know until told him that Grape nuts contained neither grapes nor nuts. It's that pesky "read the ingredients list" thing. Still, the cereal litigators are not bringing criminal charges.

I once had a client who had been convicted of aggravated murder. Evidence at trial indicated that after the killing he was watching TV. When the story of the killing came on, he purportedly said, "Shit happens." Well, yeah, though that doesn't seem quite sufficient to cover crashing a high school party and then intentionally shooting it up and killing one of the invited guests.

But it pretty well covers these cases. Shit happens. And it's awful. And you move on. Because it isn't, or it shouldn't be, a crime.

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