Free in Kentucky: Children in Hot Cars: the Tragic Circumstance and ...

Free in Kentucky: Children in Hot Cars: the Tragic Circumstance and ...: Every year we hear about parents leaving children in hot cars.  Sometimes the child is found and their life is saved.  Typically in that s...

Children in Hot Cars: the Tragic Circumstance and Charges that Follow

Every year we hear about parents leaving children in hot cars.  Sometimes the child is found and their life is saved.  Typically in that scenario, the parent or parents are charged with a crime and the kid gets sent to foster care while the parent also faces an investigation and subsequent Dependency, Neglect and Abuse (hereinafter, “DNA”) action, usually initiated by the Cabinet for Health and Family Services.  If the child is not found quickly enough, and the child dies, the parent or parents may be charged with a homicide offense.

Today we’re going to take a look at some of the crimes and punishments associated with leaving a child in a hot car.  For those of you who question how relevant this law is to our society, here is a snippet from WLKY:

“Five children have already died in the country this year after being left in a hot vehicle, which includes one infant in Louisville.

It's a scenario that takes an average of 38 lives per year…

On June 18, 8-month-old Lincoln Lindsay died from heat exposure after he was left in a van at his father's work. The infant's body was found hours later at his home in East Louisville.

Two days later, 28-year-old Tabatha Moseley and 22-year-old Joseph Smith were charged with wanton endangerment in Bullitt County after officers found a 15-month-old baby and an 8-year-old girl unattended in a Jeep just outside the Bullitt County Judicial Center.”

Let’s talk about Wanton Endangerment.  Whenever you put someone in danger because of reckless/wanton conduct, that’s the charge the police will use to initiate a case against you.  KRS 508.060 covers WE, 1^st.  It says:

(1) A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person. 

(2) Wanton endangerment in the first degree is a Class D felony.

Obviously, there is a substantial danger of death or serious physical injury in these sort of scenarios, because children have died, and continue to die every year because of “hot car” incidents.  So if a child does not die, chances are the parent is going to be charged with the above statute.  But what if the worst case scenario happens?  What happens when the child doesn’t make it?

The answer to the above question is, in part: That parent needs a good lawyer.

Because chances are, the parent is going to be charged with murder.  And let’s stop here for a second and talk about mental state.  Generally, when a person is charged with a crime, there will be a mental state requirement associated with the crime (not true with strict liability offenses).  For example, for possession of controlled substances, most of the time you have to be in “knowing” possession of the substance.  If you don’t know the substance is in your possession, you aren’t guilty of possession of that controlled substance.

With that in mind, let’s look at Kentucky’s Murder statute, KRS 507.020.  It reads: 

(1) A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime; or

(b) Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

(2) Murder is a capital offense.

Assuming the parent in question did not intentionally leave a child in a hot car, we are not interested in subsection (1)(a), which deals only with intentional acts.  Intent is described in the traditional “conscious objective" sense, and specifically, is defined in KRS 501.020(1), which says “A person acts “intentionally” with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.”

So we have covered Knowing and Intentional conduct.  But under subsection (1)(b) of the Murder statute, someone can also be prosecuted for Murder for Wanton conduct.  Let’s define wanton conduct.  Pursuant to KRS 501.020(3), “A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.”

If a jury were to find that a parent left a child in the car in the heat of summer, with the windows up, they could find that the parent consciously disregarded a substantial and unjustifiable risk, and that the disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

However, the difference between “wanton” conduct and “reckless” conduct is an extremely fine line (so far as mental states are concerned).  And if an attorney were to successfully argue that the conduct in which the parent engaged was “reckless” rather than “wanton,” said attorney may be able to convince a jury to find the parent guilty of the lesser included offense of “Reckless Homicide.”  This would be a big win for the defense in a case like this, because Reckless Homicide carries only a penalty of 1-5 years, rather than the 20-life penalty carried by Murder in Kentucky.

In short, be safe out there.  Leaving a child in a car in the summer can be extremely dangerous. 

If you have been charged with Murder or Wanton Endangerment based on the allegation that you left a child in a vehicle in the summer, you should get a Louisville Homicide Attorney immediately.  Do not give any statements to the police.  Call 502.618.4949 and speak to me, Greg Simms, for a free initial consultation and make sure your Constitutional Rights are protected. 

Simms & Reed, PLLC.  Results.  As fast as the law will allow.


Questions answered in this blog post: What is the crime of leaving a baby in a hot car; what is wanton endangerment; how can I find a good Louisville homicide lawyer; how can I find a good Louisville murder lawyer; how can I find a good Louisville wanton endangerment lawyer; how can I find a good Louisville child abuse charge lawyer; what is the difference between "wanton" and "reckless;" what is the intent required for murder; what is the intent required for wanton endangerment?

Free in Kentucky: Aaron Esmailzadeh comes to Simms & Reed, PLLC!

Free in Kentucky: Aaron Esmailzadeh comes to Simms & Reed, PLLC!: Yeah, I know.  It's pronounced "ES-Mah-Il-Za-Day."  In case that helps.  Either way, he's a genius and he's an extremely good lawy...

Aaron Esmailzadeh comes to Simms & Reed, PLLC!

Yeah, I know.  It's pronounced "ES-Mah-Il-Za-Day."  In case that helps.  Either way, he's a genius and he's an extremely good lawyer, so we're absolutely psyched to have him at the firm.  

Aaron primarily focuses his practice in the areas of bankruptcy and consumer law, estate planning and probate, and general administrative law issues. 

Esmailzadeh earned his bachelor’s degree from Brown University in 1999 and his Juris Doctor cum laude from the University of Louisville’s Louis D. Brandeis School of Law in 2006.  During law school, Aaron was a member of the Brandeis Law Journal and an officer in the Student Bar Foundation, an organization dedicated to providing funding to public service legal projects.  He also received book awards (for highest grade) in Contracts I, Labor Law, and Arbitration Practice & Procedure.

After law school, Aaron worked in both public and private sector law – specifically, for several large law firms as well as the Legal Aid Society.  He has represented individuals, small businesses, and large corporations in a range of areas, from personal domestic, estate planning, and public benefits matters, to corporate contract and insurance disputes.  This varied background has given Esmailzadeh significant advisory, trial, and appellate experience, having conducted several bench and jury trials and numerous administrative hearings and appeals.

Aaron is licensed to practice law in the Commonwealth of Kentucky, the U.S. District Court for the Eastern District of Kentucky, and the U.S. District Court for the Western District of Kentucky.

That's him in a nutshell.  

Also, if you are married, or if you have a child, you should get a will drafted.  Call 502.618.4949 and set up a free consultation with Aaron ES-Mah-Il-Za-Day.  Simms & Reed, PLLC.  Results.  As soon as the law will allow.

Shane Benson Joins Simms & Reed, PLLC as an Of Counsel Attorney!

Simms & Reed, PLLC is thrilled to announce Shane Benson will be joining the firm in an Of Counsel position!  Shane and I went to law school together, so we've known each other for nearly a decade.  

Shane Benson is a graduate of both the University of Georgia and the University of Louisville’s School of Law.  During college and law school Shane spent his summers working in Anchorage, Alaska where he lived from the age of 13 to 18.  After law school Shane returned to Alaska to practice law where he practiced in the areas of complex commercial litigation and labor and employment law.  After returning to Kentucky Shane worked for the Commonwealth of Kentucky, first as an environmental attorney with the Energy and Environment Cabinet, and, finally, as a regulatory attorney in utility law for the Kentucky Public Service Commission.

Shane will be using his experience in administrative and regulatory law to practice in the areas of bankruptcy, social security disability, and general administrative law issues. 

The addition of Shane Benson will continue the theme of extremely intelligent, driven, and creative attorneys who have joined Simms & Reed.  If you have any questions about bankruptcy, social security or disability law, or worker's compensation, call 502.618.4949.  The initial consultation is free.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

Free in Kentucky: Stupid Idea of the Week

Free in Kentucky: Stupid Idea of the Week: Don't grow weed in your front yard.  It tends to be obvious. http://www.msnbc.msn.com/id/47845385/ns/local_news-louisville_ky/#.T94LRRcS2A...

Stupid Idea of the Week

Don't grow weed in your front yard.  It tends to be obvious.


http://www.msnbc.msn.com/id/47845385/ns/local_news-louisville_ky/#.T94LRRcS2Ag


Per MSNBC (link above), Police have arrested an eastern Kentucky man, James Denver Cox, who they say had almost 100 marijuana plants growing in his front yard.  Knox County Sheriff's Deputy Brian Hensley told WYMT-TV that he observed the plants after responding to a complaint from an anonymous caller.  Police confiscated 92 plants.   [Not surprisingly,] Cox faces charges of Marijuana Cultivation.


So...don't do that.


Simms & Reed, PLLC.  Results.  As fast as the law will allow.

Free in Kentucky: Opening Statements in the Sandusky Child Sex Abuse...

Free in Kentucky: Opening Statements in the Sandusky Child Sex Abuse...: The Opening Statements for the Jerry Sandusky child sex abuse trial began this morning.  You probably remember that the Penn State Univers...

Opening Statements in the Sandusky Child Sex Abuse Trial: Saying it Without Saying it.

The Opening Statements for the Jerry Sandusky child sex abuse trial began this morning.  You probably remember that the Penn State University (assistant) football coach is charged with 52 counts alleging that he abused 10 boys over a span of 15 years. 

There was some pretty graphic testimony from Michael McQueary at the Grand Jury proceeding in this case, and McQueary is expected to be called for testimony during this trial.  McQueary’s testimony is pretty damaging for Sandusky, as he has previously testified that after hearing “rhythmic slapping sounds,” he walked in to the locker room shower area and found Sandusky sodomizing a young boy.  However, apparently there is a timeline dispute regarding the allegation – my understanding is that McQueary testified that the locker room incident happened in 2002, but the prosecution in the case says that the locker room incident happened about a year earlier.  This timeline discrepancy is something defense attorney and media loving attorney Joseph Amendola is expected to highlight.

If you don’t remember Joseph Amendola’s name, you should.  Specifically, you should remember to never listen to his advice regarding pre-trial interviews.  For some reason (eh-hem, Cough!...personalgainthroughmediaattention…Cough!) Amendola allowed Sandusky to go on the Rock Center and for his client to be cross examined by Bob Costas in front of all of America.  For a re-cap of those events, see the following breakdown from some guy who runs a blog and thinks he knows everything:

http://freeinkentucky.blogspot.com/2011/11/bob-costas-is-good-at-cross-examination.html

Concerning the more recent events, and specifically the opening statements today, there are a couple of things I’d like to share with you.  First is “saying something without saying it” and Second is just a general gripe about jury trial procedure.   

Concerning “saying something without saying it,” let me first say that there are some rules to which lawyers have to abide when giving an opening statement.  We can’t argue.  Argument is reserved for closing statements (which is why they are sometimes referred to as “closing arguments”).  Rather, an opening statement is supposed to be a time where the lawyers give the jury an idea of what the evidence will be.  So instead of saying “Sandusky is a child molester” we are supposed to say something like “the evidence will show that Sandusky is a child molester.”  See the difference?  Good.

One of the things that a prosecutor is NOT supposed to say is “Put yourself in the shoes of these victims.  How would you like it if YOU were the one this man diddled?”  That is argument in the most pure sense, and is inappropriate argument for a courtroom because it seeks to personally inflame the jurors.  But is sure is effective if you can get away with it (assuming the jury is leaning toward the prosecution at the point of the argument – otherwise it may backfire).  Let’s see how state attorney general Joseph McGettigan handled the situation today…

Per MSNBC:  “Joseph McGettigan, the deputy state attorney general who is leading the prosecution, said in his opening statement that the case is about ‘systematic behavior by a predator.’

McGettigan told the jurors that they would be hearing from the alleged victims. All of them are now adults, but he asked the jurors to ‘bring your insight (and) understanding of the way children experience things and react to things.’

‘They were boys. They didn't understand why this happened to them,’ he said.”

Brilliant.  Just brilliant.  Seriously – McGettigan got the jury to place themselves in the shoes of the alleged victims without directly asking them to do so, thereby opening himself up to a very legitimate objection from the Defense.  Instead, he spoke about how the Jury was to determine credibility of the child witnesses, which is certainly one of the jobs for the jury.  Asking the jury to “bring their insight and understanding of the way children experience things and react to things” puts them in the place of children, and asks, indirectly, for the children to imagine that they are “experiencing” abuse from the alleged perpetrator.

It is a fantastic way to evoke the desired mental state in jurors without evoking an objection from the Defense.

On a slightly unrelated note – it is significant that the prosecution gets to go first in opening statements.  They open first, and then the defense gets to give their opening statement.  The prosecution also get to go last for closing arguments.  Defense attorneys often fuss about this, because it means that the prosecution gets both the first and last word.  We expect juries to remember what is said first and last, to a greater degree than what is sandwiched in the middle.  So defense attorneys will complain about their arguments being dwarfed because the prosecution gets desirable argument real estate.  To which, I say: No excuses.  Play like a champion.

It’ll be interesting to see how this Sandusky trial plays out.  I’ll keep you posted if any more interesting legal tidbits occur.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.