Thursday, November 11, 2010

Barkus Justice?

Well, not really. As you may or may not be aware, Senator Barkus is going to plead guilty to one count of Criminal Endangerment and the dismissal of two counts of Felony Vehicular Assault.
This is one of the interesting examples where who you are matters when it comes to the administration of justice. Only not like you think. In this case we have a prominent Republican state Senator who was driving a boat that crashed into the rocks on the East shore of Flathead Lake, injuring our Rep. Denny Rehberg and others who were passengers. The fact that it is on the front page of the Daily Interlake is proof of the uniqueness of the prosecution at this level. Believe it or not, this was not the only boat accident resulting in injuries. In fact, it wasn't the only boat accident involving alcohol and injuries, but there it is, on the front page. And the worst thing is, that the Senator may actually receive a higher crime and punishment than if it had been Joe Montanan, normal citizen.
I am not going to pretend that I know better than his attorney who has a good reputation, but I think I would have challenged the original charge, since it seems to contemplate more the victims being innocent bystanders, and not passengers, but I am seeing this being used more and more nonetheless.
The charge that he is pleading to, Criminal Endangerment, is also known as the "Prosecutor's Best Friend." The relevant portions of the statute are as follows::
A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment.
MCA 45-5-207.
But I have a problem with this charge. First, "knowingly engaging in conduct." The prosecutors like to say that by driving drunk, you knowingly engage in the conduct. But Criminal Endangerment is unique in the knowing element because you have to deliberately engage in the conduct.
As a clarification, I will use Justice Nelson's explanation of the law. Three men stand in a field, One aims north and fires a gun into an open field. The second fires into a grove of trees, but he doesn't know that there is a house there, and the third fires at a group of houses. All three men engaged in the same knowing conduct - Firing a gun, but only the third man engaged in conduct that he knowingly created a substantial risk of serious injury or death. The second shooter did not know there was a house, and that is more akin to Barkus' condition than the third shooter.
For if you want to believe that Barkus does meet the standard for Criminal Endangerment, you have to believe that Barkus was trying to kill himself as well. For how could he predict that anyone, least of all him have escaped harm if that was his intent. No, his better charge was the misdemeanor of Negligent Endangerment which only requires that you acted Negligently, not knowingly. But because he is a celebrity of sorts, and the Left is out for scalps, they will get his.
Which is too bad, and just another example of the wrongful application of justice.


Anonymous said...

Wow. Possibly the worst legal "analysis" I have ever read.

Steve said...

As much as you write Anonymous, I am sure that you have so many more examples that would qualify, wouldn't you?