the charges: 2nd Degree Child Cruelty and Murder - What does it all mean?

[gngr~snap]

Oops! All this talk about Alabama in this case and I am looking up the wrong state! Sorry. :sorry::blushing:

No biggie. I was wondering if you looked up the wrong state or just typed the wrong state.

All posts are MOO. Sent via Insignia Flex Tablet.

 

[hopingicanhelp]

So if I'm understanding correctly, there is some consensus among our legal eagles here that the prosecution (to be safe) will need to prove something that indicates RH was "intentionally engaging in the conduct despite the known risk" ... ??

:bump:

gitana1? minor4th? Bueller? Frye? ... anyone?
TIA!!!!

 

[lawstudent]

:bump:

gitana1? minor4th? Bueller? Frye? ... anyone?
TIA!!!!

I tried to give an explanation below, but it was pretty longwinded.

It's all going to depend on what the prosecution actually brings as charges at the time of trial (absent a plea deal), and what the prosecution actually argues and/or demonstrates happened.

Basically, it is going to have to be intentional that he put him in that car either to kill or seriously harm him if they end up going for murder. I don't see how felony murder would really apply here - that's usually there to ensnare third parties. It wouldn't have to be intentional for involuntary manslaughter, but so far it looks more serious than that. Other crimes, i.e. child abuse, seem like they would merge into murder, but would probably require intent to injure.

 

[K_Z]

I have a question for any who know.

Will there be some kind of "announcement" that the case is being presented to the Grand Jury, or will it happen quietly and without media attention? The latest articles say the investigation is "ongoing", but since there was a preliminary hearing and a judge has been assigned, I'd think that the prosecutors would like to have the GJ evaluate the case and charges sooner, rather than later? I'd think they might want to get around to it in the next few days to weeks?

I suppose I'm just impatient and on Anesthesia decision-making time, rather than Legal System decision-making time! (lol-- everyone in my profession thinks everyone else in the world takes TOO LONG to make decisions! We don't have the luxury of time, most of the time!)

 

[gngr~snap]

I have a question for any who know.

Will there be some kind of "announcement" that the case is being presented to the Grand Jury, or will it happen quietly and without media attention? The latest articles say the investigation is "ongoing", but since there was a preliminary hearing and a judge has been assigned, I'd think that the prosecutors would like to have the GJ evaluate the case and charges sooner, rather than later? I'd think they might want to get around to it in the next few days to weeks?

I suppose I'm just impatient and on Anesthesia decision-making time, rather than Legal System decision-making time! (lol-- everyone in my profession thinks everyone else in the world takes TOO LONG to make decisions! We don't have the luxury of time, most of the time!)

All I know is GJ meets on Thursdays.

All posts are MOO.

 

[lawstudent]

I'm sure this has been covered, but is a GJ indictment necessary? I thought police had already brought charges? Isn't it usually either-or?

 

[tlcya]

I think in state of GA the charges are brought before the magistrate first who allows or does allow them to stand, then those charges are presented to a GJ for the GJ to "indict" the accused.

I know, it seems like an extra step we are not accustomed to seeing. Or at least I am not.

 

[tlcya]

some basic general info on GJ in Cobb County

For Grand Jury: The Grand Jury consists of twenty-three (23) members and two (2) alternates. Grand Jurors serve for a two month term. The Grand Jury generally meets one to two days per week. Persons ineligible for service on a Grand Jury are elected officials in state or local government or those who have held office within two years preceding service as a Grand Juror.

Georgia law provides only two categories for permanent exemption from jury duty. It is for persons who are permanently physically or mentally disabled or persons who are over seventy years of age who do not wish to serve. Affidavits for both of these permanent exemptions are located at the bottom of your jury summons.

Georgia law states that you are qualified to serve as a juror if you are a U.S citizen, are at least 18 years of age, are a resident of the county that sent you the jury summons, and have had your rights restored if you were convicted of a felony.

The following types of clothing are not allowed:
Caps must not be worn inside of a courtroom, shorts or cut off jeans, any “see through” materials, and no law enforcement uniforms.

Security: upon arriving at the courthouse, you will be required to go through security screening. Weapons of any kind (including pocket knives) are prohibited.

All cell phones must be turned off upon entering a courtroom.

Our Jury Assembly Room is equipped with wireless network that is available for jurors. There are also desktop computers, fax machines, printers and courtesy telephones.

Cell phones, personal electronic equipment, etc. are allowed in the Jury Assembly Room.

http://www.cobbcounty.org/index.php?option=com_content&view=article&id=2201&Itemid=973

When does a grand jury come in?
Investigators continue to search through evidence and conduct interviews.

When they’re done, law enforcement will hand over its findings to the prosecutor’s office, which will present the case to a grand jury. Sources tell CNN that it may be late July before the grand jury makes a decision.

Cobb County District Attorney’s Office spokeswoman Kim Isaza told CNN Wednesday that ethical standards bar the prosecutor’s office from commenting on evidence in the case. “This case will run its course and we will follow wherever the evidence leads us,” she said.

http://wtvr.com/2014/07/12/whats-next-in-case-of-georgia-father-whose-child-died-in-hot-car/

 

[Nore]

hee tah nah good Attorney.:loveyou: Minor 4th also.:loveyou:

 

[Evie Ivy Over]

I haven't seen any information released regarding the timing of the texts/phone calls made that day; Det. Stoddard testified that many texts were made during the day but that he didn't know what time they started--gee, this would have been my first question, since it would possibly explain RH's distraction at the time he left Chick-Fil-A. The effect of cell phones on the cognitive process is well researched and documented. Having said that, if RH was preoccupied with his phone from the time he left the restaurant until he arrived at work (and apparently throughout the course of the day), someone might say he was involved in reckless behavior. Originally, I was looking at this from the perspective of a form of defense of his position, and that leaving his baby in the car was the result of documented distraction and therefore not intentional, but do you think this could be used against him, as well?

 

[Lovejac]

I haven't seen any information released regarding the timing of the texts/phone calls made that day; Det. Stoddard testified that many texts were made during the day but that he didn't know what time they started--gee, this would have been my first question, since it would possibly explain RH's distraction at the time he left Chick-Fil-A. The effect of cell phones on the cognitive process is well researched and documented. Having said that, if RH was preoccupied with his phone from the time he left the restaurant until he arrived at work (and apparently throughout the course of the day), someone might say he was involved in reckless behavior. Originally, I was looking at this from the perspective of a form of defense of his position, and that leaving his baby in the car was the result of documenteddistraction and therefore not intentional, but do you think this could be used against him, as well?

During the PCH Det Stoddard testified that they asked RH if he was distracted by his phone during the car ride from Chicfilet to work and RH said "No"

 

[Evie Ivy Over]

During the PCH Det Stoddard testified that they asked RH if he was distracted by his phone during the car ride from Chicfilet to work and RH said "No"

It seems he used that word quite a bit during the questioning.

 

[tlcya]

RH claimed there were no distractions. Stoddard testified that the sexting calls began sometime in the morning and continued til around 3 pm

 

[minor4th]

:bump:

gitana1? minor4th? Bueller? Frye? ... anyone?
TIA!!!!

The way I read the law and a couple of cases, to me it seems like criminal negligence does require some type of deliberate act in disregard for human life.

I haven't found any cases that are directly on point, but my take is that if RH can raise a reasonable doubt that he actually did forget Cooper in the car - conviction will be difficult.

 

[Nali87]

The way I read the law and a couple of cases, to me it seems like criminal negligence does require some type of deliberate act in disregard for human life.

I haven't found any cases that are directly on point, but my take is that if RH can raise a reasonable doubt that he actually did forget Cooper in the car - conviction will be difficult.

What if RH knew about the consequences of leaving a baby in a hot car (he had researched it - it was apparently a fear of his), but yet did nothing to prevent such a thing from happening? Couldn't that be seen as an act in disregard of human life? Can "doing nothing" also be considered an "act"?

 

[lawstudent]

What if RH knew about the consequences of leaving a baby in a hot car (he had researched it - it was apparently a fear of his), but yet did nothing to prevent such a thing of happening? Couldn't that be seen as an act in disregard of human life? Can "doing nothing" also be considered an "act"?

Doing nothing (omission) can lead to criminal responsibility, but not anything near this level. It's not a reckless disregard for human life. Child neglect can be done by omission, and I suppose it could be murder if you did something like not feed a child for weeks because you just didn't feel like it. But that's way beyond not taking steps to prevent forgetting your child, if that is what the argument ends up being. It would be more comparable to forgetting to give your child a dose of critical medication like anti-seizure meds or insulin, resulting in their death. It's possible some sort of charge could be brought in such a situation, but nothing near murder. It's not reckless disregard to fail to take every safeguard possible - reckless disregard indicates an extreme departure from what the average person does. You can argue it's an extreme departure to forget your child in a car (but murder always requires some element of intent to do something, so it would still fail), but it's not an extreme departure to not have alarms and things in your back seat just in case. Most people don't do those things.

 

[Nali87]

Doing nothing (omission) can lead to criminal responsibility, but not anything near this level. It's not a reckless disregard for human life. Child neglect can be done by omission, and I suppose it could be murder if you did something like not feed a child for weeks because you just didn't feel like it. But that's way beyond not taking steps to prevent forgetting your child, if that is what the argument ends up being. It would be more comparable to forgetting to give your child a dose of critical medication like anti-seizure meds or insulin, resulting in their death. It's possible some sort of charge could be brought in such a situation, but nothing near murder. It's not reckless disregard to fail to take every safeguard possible - reckless disregard indicates an extreme departure from what the average person does. You can argue it's an extreme departure to forget your child in a car (but murder always requires some element of intent to do something, so it would still fail), but it's not an extreme departure to not have alarms and things in your back seat just in case. Most people don't do those things.

This is very helpful, thank you. So I guess the prosecution will have to prove premeditation then. It sucks that if he had decided at the last moment to kill Cooper, for example in the car after eating, that that would be impossible to prove and he could just get away with murder.

Maybe the prosecution can use his suspicious behaviour (not smelling the decay, visiting the car, looking back at car as others walk by) after the fact to say that he behaved like a man that had murdered his child.

 

[gitana1]

So if I'm understanding correctly, there is some consensus among our legal eagles here that the prosecution (to be safe) will need to prove something that indicates RH was "intentionally engaging in the conduct despite the known risk" ... ??

:bump:

gitana1? minor4th? Bueller? Frye? ... anyone?
TIA!!!!

It is likely (but not necessary) that they will have to prove he intentionally or knowingly engaged in certain conduct - but it is not necessary that he had to intend to harm the child. There are other ways to find him guilty of felony murder. But that will be harder here. An example of finding felony murder without any kind of intent would be someone who forgets their kid because they were busy getting totally wasted. That would be reckless conduct that, although the dad or mom didn't knowingly leave the kid in the car, they did exhibit such a reckless disregard for human life that felony murder would apply in Georgia.

What if RH knew about the consequences of leaving a baby in a hot car (he had researched it - it was apparently a fear of his), but yet did nothing to prevent such a thing from happening? Couldn't that be seen as an act in disregard of human life? Can "doing nothing" also be considered an "act"?

Yes. It absolutely can. It's just that practically, it is unlikely a jury would find such conduct worthy of a felony murder verdict.

Doing nothing (omission) can lead to criminal responsibility, but not anything near this level. It's not a reckless disregard for human life. Child neglect can be done by omission, and I suppose it could be murder if you did something like not feed a child for weeks because you just didn't feel like it. But that's way beyond not taking steps to prevent forgetting your child, if that is what the argument ends up being. It would be more comparable to forgetting to give your child a dose of critical medication like anti-seizure meds or insulin, resulting in their death. It's possible some sort of charge could be brought in such a situation, but nothing near murder. It's not reckless disregard to fail to take every safeguard possible - reckless disregard indicates an extreme departure from what the average person does. You can argue it's an extreme departure to forget your child in a car (but murder always requires some element of intent to do something, so it would still fail), but it's not an extreme departure to not have alarms and things in your back seat just in case. Most people don't do those things.

While I agree with you practically, felony murder absolutely does not necessitate some form of intent. It just doesn't. I go back to the example of the parent who gets 3watsed and forgets their child. They may be able to successfully argue they didn;t intent to leave their child for more than 5 minutes, they didn;t intend to forget their kid, they didn;t intend to get wasted - it just all kind of happened.

In the state of Georgia, such a parent would still be eligible for a felony murder charge.

 

[lawstudent]

This is very helpful, thank you. So I guess the prosecution will have to prove premeditation then. It sucks that if he had decided at the last moment to kill Cooper, for example in the car after eating, that that would be impossible to prove and he could just get away with murder.

Maybe the prosecution can use his suspicious behaviour (not smelling the decay, visiting the car, looking back at car as others walk by) after the fact to say that he behaved like a man that had murdered his child.

Premeditation is not required. Intent is. Second degree murder involves intent but not premeditation. You intended to do harm to the person, whether kill or assault them, but didn't think about it in advance.

It is likely (but not necessary) that they will have to prove he intentionally or knowingly engaged in certain conduct - but it is not necessary that he had to intend to harm the child. There are other ways to find him guilty of felony murder. But that will be harder here. An example of finding felony murder without any kind of intent would be someone who forgets their kid because they were busy getting totally wasted. That would be reckless conduct that, although the dad or mom didn't knowingly leave the kid in the car, they did exhibit such a reckless disregard for human life that felony murder would apply in Georgia.

Yes. It absolutely can. It's just that practically, it is unlikely a jury would find such conduct worthy of a felony murder verdict.

While I agree with you practically, felony murder absolutely does not necessitate some form of intent. It just doesn't. I go back to the example of the parent who gets 3watsed and forgets their child. They may be able to successfully argue they didn;t intent to leave their child for more than 5 minutes, they didn;t intend to forget their kid, they didn;t intend to get wasted - it just all kind of happened.

In the state of Georgia, such a parent would still be eligible for a felony murder charge.

Intent to harm the child is not necessary. Intent to do an act is. Felony murder where a co-felon is held responsible for a shooting in a botched robbery involves a showing of intent to participate in the robbery - not harm the clerk. But the harm must be a foreseeable result of a felony the person intended to participate in. For example, DUI is not murder because there is no felony, even though there is intent to drink a lot and then intent to drive.

Is there a Georgia case you are specifically referring to? Because what felony did the parents commit in your scenario (getting wasted and forgetting the child?) to be guilty of felony murder? Felony murder has to be in the commission of a felony. Felony child abuse in the second degree, under the new law, counts as second degree murder. Felony child abuse in the second degree requires criminal negligence. This doesn't require intent to cause excessive pain etc., but it still requires an intent to do something to them (one example I saw cited was to lock a child in a basement for 2 years, allegedly not intending to cause excessive pain, but doing so anyway.) Not just to fail to take precautions to not leave your child in the car. Under Georgia law, criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby. It is possible this could apply in the sense that he failed to remove his child from an unsafe condition and the child suffered tremendously as a result. But it doesn't apply to taking precautions. It's not normal negligence - it has to be reckless disregard - doing an action or failing to do one knowing people may well be injured.

Reckless disregard is an element of criminal negligence, which is an element of second degree felony child cruelty, which is a way to qualify for second degree murder. It is unrelated to felony murder (which I think could be either degree). You would need to use the felony murder doctrine to go after somebody who participated in a felony during the course of which *someone else* committed murder. A murder you commit is not a felony murder. You would already be guilty of murder. It's for people who committed a felony during which someone else did the murder.

Recklessness doesn't require intent that you cause the harm, but it still requires intent to do *something*. It requires an act or omission. If someone passed out at the wheel (completely unexpectedly), they couldn't be held criminally negligent for the car going out of control, driving recklessly, and killing someone. It has to be voluntary - intent to drive in such a manner, even with no intent to kill or injure. Intent to keep the child in the basement, even if the other parent had no idea how bad conditions were and that the kid was suffering and dying. Not sure what kind of omission would constitute criminal negligence - that probably doesn't require intent because it couldn't logically do so, but that's a totally different situation from leaving your kid in a car by accident. I can't find any case that illustrates what would constitute criminal negligence by omission in Georgia.
I found this case rather poorly written but helpful: http://statecasefiles.justia.com/documents/georgia/supreme-court/s13a1259.pdf?ts=1381237283 All crimes involve some element of intent, versus civil litigation where some employer may be liable for something completely unrelated to his actions or inactions under vicarious liability doctrines.

 

[JerseyGirl]

CNN editorial explaining the charges:

http://www.cnn.com/2014/07/08/opinion/cevallos-hot-car-felony-murder/?c=&page=0