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September 27, 2010

Murder convictions for drunk driver with high-profile victim

As detailed in this AP article, which is headlined "Man convicted of murder in Angels pitcher's death," a California jury today returned murder convictions for a repeat drunk driver who cut short three young lives, one of which was high-profile.  Here are the particulars:

A jury convicted a construction worker of murder Monday for a drunken-driving crash that killed promising rookie Los Angeles Angels pitcher Nick Adenhart and two of his friends.  It was the second DUI conviction for Andrew Gallo, 23, who held white rosary beads and occasionally looked up at jurors as they returned their verdicts....

Gallo was convicted on three counts of second-degree murder and single counts of drunken driving, hit-and-run driving, and driving under the influence of alcohol and causing great bodily injury.  He faces 50 years to life in state prison at his scheduled sentencing on Dec. 10.

His attorney Jacqueline Goodman said Gallo would appeal. "I think it's tragic," she told reporters. "I think there's been a miscarriage of justice." She previously said her client did not intend to kill anyone.

Prosecutors said they charged the case as a second-degree murder instead of the lesser charge of manslaughter because Gallo had a previous DUI conviction, had specific knowledge of the dangers of drinking and driving from his own experience, and had signed a court form from the earlier case saying he understood he could be charged with murder if he drove drunk again and killed someone.

To win a murder conviction, prosecutors had to show Gallo acted with implied malice, intentionally drove drunk, acted with a conscious disregard for human life, and knew from his personal experience that he could kill someone....

Orange County District Attorney Tony Rackauckas said it was the 11th DUI-related murder conviction in the county since 2008.  "People are dying here," Rackauckas told reporters. "We want to get the message out there as well as we can that people will be prosecuted for murder when they engage in this type of conduct."...

Prosecutors alleged during the two-week trial that Gallo, whose blood-alcohol level was nearly three times the legal limit, spent hours drinking beers and shots with his stepbrother at three different bars before running a red light and T-boning the car driven by Stewart.   Prosecutor Susan Price told jurors that Gallo had been repeatedly warned by friends, family and court officials about the dangers of drinking and driving, but his arrogance and need to party prevented him from learning the lesson.

Goodman contended the district attorney's office had overstepped by charging Gallo with murder. She said her client believed his stepbrother was his designated driver and only drove after his stepbrother became too intoxicated and asked him to take the wheel.  By that point, she argued, Gallo was too drunk to realize the consequences of driving drunk.

During the trial, prosecutors played a videotaped interview in which Gallo told police he didn't remember driving and apologized to the families of the victims.

September 27, 2010 at 10:40 PM | Permalink


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This case would be old news in the Eastern District of Virginia, see United States v. Fleming, 739 F.2d 945 (4th Cir. 1984).

Posted by: Bill Otis | Sep 28, 2010 6:06:14 AM

I don’t think I’d sentence this guy to 50 years, but I certainly have no sympathy for him.

Posted by: Marc Shepherd | Sep 28, 2010 9:37:13 AM

"During the trial, prosecutors played a videotaped interview in which Gallo told police he didn't remember driving and apologized to the families of the victims."

Not cool. Using a gesture of humanity to express regret against the person. There should be a rule of evidence against that, to encourage candor and expressions of regret in defendants. Such expressions encourage forgiveness, which will make the victim families feel better. Such a new rule would help the families more than it would the defendant. Regret is not just part of retribution, but indicates a lesser likelihood of repetition, an utilitarian value.

Posted by: Supremacy Claus | Sep 28, 2010 9:43:21 AM

The Fleming case certainly involved some strange facts. I just read the appellate decision. I take it that you were involved in that prosecution? I was wondering how much time Fleming received. I went to the B of P website and see that he is now 83 and escaped at some point.

Posted by: Tim Holloway | Sep 28, 2010 10:21:34 AM

Tim Holloway --

I was involved in the appeal, yes, because it was an unusual murder charge, and I was viewed as the office egghead, as appellate chiefs tend to be. I looked at the brief but did not sign it, believing that the AUSA who handled the case in district court, Bob Cynkar, had done quite a good job, and it wasn't up to me to horn in on his success. I thought, correctly as it turned out, that it was very likely the Fourth Circuit would view the defendant's degree of recklessness as breathtaking, and thus also view it as constructive malice, making it a murder case.

I forget what Fleming's sentence was, although I'm sure it was hefty; the EDVA tends not to be playtime for defendants like this. On the other hand, it was a pre-Guidelines case, so whatever the sentence pronounced in court was would have little resemblance to the sentence served.

In a way, I'm not surprised Fleming escaped at one point. The collision totalled the victim's car, but Fleming walked away with, I think, a sprained ankle. On the day of the collision, Fleming was two things: really lucky, and really drunk.

Posted by: Bill Otis | Sep 28, 2010 1:04:16 PM

California has been doing this forever. See Lawrence Taylor's blogpost: http://www.duiblog.com/2010/08/13/the-education-of-a-prosecutor/

Posted by: anon2 | Sep 28, 2010 5:13:57 PM

I can see why someone like Fleming would be convicted of murder, but if simply running a stoplight is sufficient to create malice due to driving with an extreme disregard for life, where do you draw the line? If someone ran a red light while texting and kills someone would that equal murder? Would running a red light because you are putting make up on while driving be sufficient to equal murder? Running a red light while talking on a cell phone? Changing the CD? Lighting a cigarette? Drinking water or eating? Being distracted by a passenger? Being a bit drowsy? Anyone of those things can be as dangerous as driving drunk - actually driving while texting or putting on make up is probably more dangerous than being drunk - drunks at least attempt to keep their eyes on the road ;)

But seriously, the Fourth Circuit seemed to make a real effort to differ between extreme reckless conduct sufficient to create malice (driving 100 miles per hour the wrong way on the George Washington Parkway a road for which a 45 mile per hour speed limit is probably actually too high) versus more ordinary negligence. It would seem that someone who was sober who drove like Fleming did would qualify as acting with extreme disregard to life - so the fact that Fleming was incredibly drunk was not really that important factor in his case. I don't think under the test used in Fleming that Gallo gets convicted of murder. He obviously gets convicted of manslaughter, but to say you get 50 years to life in prison because you got caught driving drunk once before seems to be a stretch. Also seems to be the heights of hypocracy - did they exclude those from the jury who ever drove drunk or only those unfortunate enough to get caught? And I wonder how many prosecutors and judges have driven drunk while in high school, college, law school, or even after becoming an attorney but were fortunate enough to not get caught or have an accident :P

Of course when your main defense is "Gallo was too drunk to realize the consequences of driving drunk" you are probably doomed as a defendant no matter what. Especially in a high profile case :)

Still, I think this case means to be on the safe side if you are going to drive in California to lock your cell phone in the trunk, use an MP3 player, CD changer, or satellite radio with a continuous stream of music, have no passengers, avoiding taking cold medication, eat and drink I(non-alcoholic beverages only), and put on your makeup before driving or risk being branded a murderer :P

Ginny :)

Posted by: virginia | Sep 28, 2010 6:03:47 PM

Stop Drunk Driving Now's President and Founder, Ron Bellanti, gives high school students the cold hard facts on drunk driving. Ron is dedicated to helping teenagers realize the consequences of drunk driving and have them make the right decisions as well. Learn more about drunk driving prevention, statistics and how to get your school involved at www.stopddnow.com

Recently, Ron spoke at Londonderry High School in Londonderry, New Hampshire educating students on the perils of drunk driving. Read more on what the Derry News thought of the drunk driving prevention event at www.derrynews.com/londonderry/x2073120501/LHS-students-hear-cold-hard-facts

Derry Nh

Londonderry Nh News

Posted by: Spencer | Nov 10, 2010 12:54:01 PM

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