Thursday, October 20, 2011

Dangerous Dumpsters & the Armed Generalissima

Really, what I wanted to write about was inanimate objects.I wanted to offer a thought experiment.
Imagine, if you will (and if you won't why are you reading this?), a tree.  Tall and broad, stately.  A thing of beauty.  On a bright summer's day, you could sit under it, perhaps with a lover.
A Book of Verses underneath the Bough, 
A Jug of Wine, a Loaf of Bread--and Thou 
Beside me singing in the Wilderness-- 
Oh, Wilderness were Paradise enow!
     Omar Khayyam, The Rubaiyat
A lovely thing, really, though with the potential of great danger, naturally.  You know the rule:  Don't take shelter under a tree in a thunderstorm.  And there are the stories:
Which are just a tiny sampling.  And don't include all those times when drivers run into trees and die or parachutists fall on them and die or idiots climb up and fall off and die or . . . . Really, the Darwin Awards could have a special category.   But really, mostly trees are pretty safe.
So, to get back to the point, imagine a tree.  But don't think of it on that bright summer day with your lover nearby.  And don't think of it as an accident waiting to happen.  I mean, life is a risk.  Anything can happen anywhere.  No, think of the tree as a weapon.
Break off a branch and hit someone with it.  Or stab someone with it.  Take someone and ram him, hard, head first, into the trunk.
Now, another image.  Think of a wooden box.  A big one.  It could be a weapon, just like a tree.  One could smash someone's head into it.  One could break off a piece and use it as a bludgeon or a spear.  One could, perhaps, drop it on someone.
Or, and now we get toward the point, one could place someone inside the box.
Which brings us to the question: 
If someone is put in the box, does the box become a weapon?
If that box is in Waco, Texas, the answer is now "Yes."
Via Walter Reaves, comes word of Mechell v. Texas which demonstrates, as Reaves says, "anything can be a deadly weapon."
That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.
The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.
What's striking about Mechell's case is that there was no need to go there.  Mechell ended up with a 48 year prison sentence.  She'd have been well up into the double digits (I'm not up on the details of Texas sentencing law today so I won't try to figure out just how high) without the deadly weapon specification.  So why would the DA bother?
There are, I think, two answers.
  1. Because he could.
  2. Because he wanted to get a court to say so.
Here's the relevant Texas law as set out in the court's opinion.
A deadly weapon, as applied to this case, is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West 2011).
From which, the court of appeals in Waco concluded, a dumpster is "capable of causing death or serious bodily injury" because a person abandoned in one might die or be seriously injured. Which is surely true.  But is also a major screw up.  By focusing on whether harm could occur in a dumpster, the court lost track of the issue of causation.
Because the simple fact is that the dumpster as inanimate box, couldn't cause harm.  The cause of harm was abandoning the child.  Causation matters.  (See here, for instance.)  Reaves again.
It was the act of abandoning the child that caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.
And don't think it won't happen.
Which brings us back to the District Attorney.  Maybe it was a power play.  (Let's stack up the charges and make them as bad as possible because we can.)  Or maybe it was an effort, at Mechell's expense, to establish some really awful law to use in the next case.  Offensive either way.
But then, so are the trial and appellate courts for buying into it.  
Except, of course, a child was hurt.  And as they like to say,
Bad facts make bad law.
* * * * *
That's the post I was going to write.  Up until the moment I saw this CNN story via Howard Bashman's post.
Let me back up for a moment.  I've made this point before (here, for instance).
I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control. Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things.The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.
I wrote that, as you'll see if you follow the link, in a post arguing that the Second Amendment allows, even encourages, an armed citizenry not for sort or hunting or defense against burglars but to ensure the ability to successfully defend against and even overthrow the government.
If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.
Regardless, I'm still in some ways that Jewish kid from New York who hates guns.
Another Jewish kid from New York (and no, we've never met, though we both grew up on the upper west side of Manhattan) who presumably hated guns is the former Generalissima, now-Justice Elena Kagan.
The other day, she was in Baltimore helping a temple celebrate its 90th anniversary.  She talked about her family's search for a temple.  About convincing a "modern orthodox" rabbi (whatever sort of orthodox that is) to give her something like a bat mitzvah.  She talked about Jews on the SCOTUS bench and about a case involving a passport from Jerusalem or Israel or Palestine.  And she talked about (you knew I was going to get back to this, right?) guns.
She recalled paying a courtesy call on Sen. Benjamin Cardin, D-Maryland, who is a member of Beth Tfiloh, shortly after her nomination to the court by President Barack Obama in May 2010. Cardin asked her about gun rights, and remarked she may not realize how important the issue is to some Americans.
She admitted never having owned or fired a gun before. "But I told Sen. Cardin if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."
And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.
"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.
"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.
And no, I'm not going to try relating this to the big/game/hunter cops near Zanesville (home of the National Road/Zane Grey Museum, by the way) who just tracked down and killed some 49 "exotic" animals.

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