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July 22, 2011

You be the prosecutor: charge or no charge in accidental child shootings?

The question and challenge in the title of this post is drawn from this interesting and compelling story from Missouri, which is headlined "Prosecutors in St. Louis area face tough decisions in child shooting deaths."  Here are the particulars: 

Michael Lesnick knows the pain of losing a child due to carelessness.  In 2007, his 3-year-old son, Joshua, found a loaded pistol left in a nightstand and shot himself in the chest.

Lesnick, a former federal police officer and licensed firearms instructor, pleaded no contest to charges of child endangerment and served a year's probation. So did his wife, who was at their Wisconsin home when Joshua found the gun.

That was the penalty meted out by the criminal justice system. But Lesnick said it doesn't come close to matching his real punishment.  "I have to look at my son's killer in the mirror every day," he said.  "I am 100 percent responsible for my son's death. That's a heavy, heavy burden."  It's a burden, he says, that prosecutors in many cases don't need to aggravate by filing criminal charges.

Three accidental child shootings in the St. Louis area in recent days have left prosecutors here facing the same delicate decision.  In Missouri and Illinois, a parent can be charged if they knowingly or recklessly leave a firearm where a child can access it.  It is up to a prosecutor to weigh the nuances of the case — including the age of the child, that child's familiarity with guns and the actions of the gun owner — to determine whether charges are warranted.

The decision is made against an emotionally charged backdrop, as with all accidental deaths.  A quiet infant is left in a hot car by a distracted parent.  A toddler runs toward a lake while his grandmother is inside talking on the phone. In each case, the potential defendant is already wrestling with their own punishment.   "They've suffered a great loss already. To put them in prison — does that add insult to injury?" said Timothy Maher, a criminologist at the University of Missouri-St. Louis. "It's a tough call for prosecutors."...

While the laws give prosecutors flexibility to consider the nuances of each case, they also require them to get inside the head of the person who left the gun unattended.  "These are very difficult cases to prove and to prosecute because they are emotionally charged and the law requires us to prove someone's mental state," St. Louis Circuit Attorney Jennifer Joyce said in a statement.  "As tragic as these cases are, as prosecutors, our focus is to apply the law and determine whether a law has been broken."

Joyce will soon weigh what to do in last week's death of 3-year-old Lilianna Moore, who was playing with a gun she found between two mattresses at her home on Flad Avenue. Joyce would not comment on the case.  St. Louis County Prosecuting Attorney Robert McCulloch and St. Clair County State's Attorney Brendan Kelly also would not comment on the recent cases in their jurisdictions.

On Tuesday, 3-year-old Daniel Metz fatally shot himself with a handgun he found in his Maryland Heights home. Daniel's father, Maryland Heights police Officer Ryan Metz, was among the first to respond to the shooting. The gun was owned by Metz for personal use and was not department-issued....

On Wednesday, 5-year-old Kaden Mallory of Belleville was fatally shot in his home by his 10-year-old brother in what police called an "extremely tragic" accidental shooting that occurred while an adult male baby sitter was in the other room.  Police have not said whose gun it was....

Lesnick, the former officer from Wisconsin, now lectures on gun safety and is shocked how often he reads about cases like his.  He calls it a case of complacency, similar to when people refuse to wear a seat belt.  The best thing the criminal justice system can do, he said, is require parents like him to share their stories. "Try to spread the word," he said. "Yes, this can happen to you, and no, you don't want it to happen to you."

Ever the utilitarian thinker, my instinct in these sorts of cases is to bring a criminal charge in order to help "spread the word" as Lesnick puts it.  Absent proof of any malice, I would not expect a parent or guardian to get a severe sentence for this kind of accidental crime, and yet the very decision to prosecute will help raise awareness about the risk of these sorts of tragedies.  I certainly understand a retribributivist instinct that the parents in these of cases have "already been punished enough," but that notion only leads me to want to ensure the criminal sanction is not too severe after we get the utilitarian benefits of going forward with an initial prosecution.

July 22, 2011 at 02:54 PM | Permalink


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"while an adult male baby sitter was in the other room"

What relevance is the baby sitter's gender?

Posted by: male | Jul 22, 2011 4:25:08 PM

It's not especially relevant, it's just that this newspaper has gradually fired all of its real reporters over the years, and this kind of dreck is the result.

Posted by: def atty | Jul 22, 2011 5:04:51 PM

I wonder what function "spreading the word" through conviction can fulfill that spreading the word through reporting the tragedy itself can't.

Evidently, this kind of accident can befall even those well-trained in the dangers of firearms. Spreading the word about basic principles of gun safety won't do the trick, then.

So is the idea that some guy who was going to leave his gun within-baby's-reach will be deterred by hearing about this father's conviction but not by hearing about the underlying death? Or is it that only the conviction (or the specter of conviction) makes the whole tale worth telling? (The latter suggestion is almost enough to turn one into a Kantian.)

Posted by: Michael Drake | Jul 22, 2011 6:07:51 PM

Fair points, Michael, but I think this story shows you get multiple press reports about a tragedy if/when a criminal charge comes into pay.

Posted by: Doug B. | Jul 22, 2011 7:30:35 PM

I am a defense attorney and have seen firsthand the collateral damage of such prosecutions whether the defendant is treated harshly or not. The press that accompanies such events drags not just the perpetrator but the entire family into the spotlight at what may be the worst moment of their life. There is also a tendency for lay people to beleive that if there is a prosecution that the state must know "something" more about some kind of bad intention or behavior by the defendant -- this can cause splintering in the family and a pressure to "take side." The message is also sometimes sent by prosecutors, social services or other family members that the righteous nonoffending parent will reject the killing parent -- sometimes they are explicitly threatened about their ability to retain their other children unless they distance themselves from this offending parent. This is not to speak of the lifelong consequences of every job interview, loan application, etc. triggering an explanation and reliving of the tragedy for the defendant who carries the stigma of the arrest and prosecution (esp. in this era of computers) forever. And what about the "registration" frenzy where some states are talking about making murderers register? And, by the way, what sentencing interests are served? It's not deterrence if it was an accident in the first place. Is it punishment if no government-sponsored sanction is going to begin to meet the loss of that child? Is it vengeance? Can't help but thinking about the research that shows that the more harsh punishments (such as the death penalty) are linked to those perceived as the most "worthy" victims, evidently children and white females...

Posted by: LRK | Jul 23, 2011 9:38:43 AM

I totally oppose the concept of intent in crime. It is copied from the analysis of mortal sin in the Catechism, and is the supernatural function of God on the day of Judgment, reading the mind of the sinner. Nevertheless, isn't intent of each element of the crime still required by the law today? Reckless endangerment is for the person who drives at 50 mph in a downtown street totally filled with crossing pedestrians, at 12 Noon. This person has knowledge of the specific risk at the time, in the place, and still does his speeding.

It is not for this situation.

Worse. Punished falsely implies one has understood what happened. One person is blameworthy, so we are done with the case and the subject matter. Absolutely not. The blameworthiness stems from outcome and hindsight biases, a violation of the procedural due process right to a fair hearing. So it is unlawful.

This is less a crime, more a catastrophe. There is no chain of causation or single blameworthiness in any catastrophe. Rather factors cluster in one place, one time, to cause the catastrophe. If you want to prevent it, the factors must be enumerated. They are very powerful, because the deletion of only of any of the dozen factors will prevent the catastrophe. If you punish people, you interfere with the analysis by causing the cover up.

So a thorough investigation is required to list the factors. Then any change must be carried out on the system, not just on the individuals. For example, child proofing safety mechanisms on the pistol. A gun that can only operate after reading the fingerprint of the owner.

It is appropriate for the estate of the child to sue the parent for ordinary negligence or negligent entrustment. Prosecution precludes this rich source of safety improvement, ending the case too prematurely.

Lastly, general deterrence is unfair, and violates due process. You cannot prosecute the person to deter a speculative future crime in some other person, unknown to the defendant or to anyone else.

Posted by: Supremacy Claus | Jul 23, 2011 10:38:05 AM

It's one of the things that's terribly wrong with us, this vile notion criminal charges are the fix for every problem. Another is the hysteria that attends to virtually every misfortune involving children.

Michael's right. If stories about children killed in gun accidents don't deter negligence or inspire caution (or even get noticed by folks too busy or tired to keep up with the news), how exactly do additional stories about prosecutors tormenting the parents help?

Funny, we never seem to run out of reasons for wanting to put our weak, stupid, forgetful, unlucky neighbors in prison...to add punishment and degradation to abject grief.

But to answer Doug's question, if I'm the prosecutor it can't hurt my career to be seen in the news as the avenger of dead children. So what the heck, I throw the book at them.

Posted by: John K | Jul 23, 2011 11:10:48 AM

Holy Mother Mary in a sidesaddle, now we're justifying prosecution because it might "get multiple press reports"?! Prosecution not because of merits but in hopes of getting one's talking head on the TV to "send a message"? What if the press fails to report it, as is the case with 99% of criminal sentences? Where's the "utilitarian" outcome then?

If the state wants to "send a message" a much more efficient and effective way is to buy TV advertising.

Posted by: Gritsforbreakfast | Jul 23, 2011 11:31:46 AM

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