Prosecutors seeking negligent-homicide law

Md. among 28 states without statute for accidental death

June 17, 1999|By Candus Thomson | Candus Thomson,SUN STAFF

NORTH POTOMAC -- Jack Mackey remembers the day in December when a prosecutor told him the maximum possible penalty for the driver who left his only son dying in a grassy gully and drove away.

"A traffic ticket and fine," he says softly, shaking his head. "I can accept that accidents happen, but I cannot accept this."

Twenty-two states -- including New York, Michigan and Connecticut -- and the District of Columbia have a negligent-homicide law. But despite at least three attempts at passage, Maryland does not.

Montgomery County's top prosecutor, Douglas Gansler, is willing to try again, starting with next week's meetings of the Maryland State's Attorneys Association.

"With the heightened awareness of road rage and traffic offenses, maybe the climate has changed," says Gansler, who prosecuted negligent-homicide cases as an assistant U.S. attorney in the district.

Prosecutors say the law leaves them helpless when the evidence against a driver isn't strong enough to prove auto manslaughter, which in Maryland carries a possible 10-year prison term. Yet, they say, a traffic ticket seems wholly inadequate.

"It's horrible," says Baltimore County Deputy State's Attorney Susan Schenning. "All of us have been in the position of having to tell families who have lost their child, their parent, that all we can get is a maximum $500 fine."

Schenning says prosecutors and others in law enforcement have tried different approaches to attract legislative support for the bill, but each time they have come away from Annapolis empty-handed.

"We have been told by members of the legislature that they will never, ever support a negligent-homicide law. They say it is too broad," says Schenning.

Gansler has written to the governor and lawmakers, asking for their support of a negligent-homicide law that would carry a maximum penalty of five years in prison and a $5,000 fine.

Mackey says that for the sake of his 14-year-old son, Kevin, he will be lobbying at Gansler's side.

"It seems like there should be a way to hold someone accountable when they take a life," says Mackey. "In justice to Kevin and Kevin's memory, if we can help clarify the law, then that is our obligation."

Kevin Mackey almost made it home the afternoon of Sept. 5. He had played tennis at a neighborhood court and was pedaling along a two-lane road to get his parents' permission to go with friends to a University of Maryland football scrimmage.

Startled by a thud

Kap Joo Kim was almost home, too. But after a 12-hour shift at the Oakton, Va., post office, Kim began nodding off, she told police.

Her 11-year-old station wagon drifted off the road and onto the shoulder, where Kevin was riding.

Kim told police she was startled awake by a thud and the sound of shattering glass. She jerked the steering wheel to the left to put the tires back on the asphalt and continued driving home.

She later told family members and the police she thought she had struck a sign or a tree.

The impact with the windshield catapulted Kevin into a drainage ditch. Rush-hour commuters scrambled to his aid. He was flown to Children's Hospital in Washington, where he died three days later of massive head injuries.

Kim, 44, surrendered after her son saw a report of the accident on television news. She will stand trial in District Court this summer on four motor vehicle violations: negligent driving, unsafe lane change, failure to remain at the scene, and failure to stop and provide license and registration. The maximum fine for all the charges combined is $2,000.

Gansler says that without evidence of speeding, alcohol or drugs, his staff cannot prove gross negligence, the standard for auto manslaughter.

"We need to close this loophole in state law," he says. "It's completely knuckleheaded logic that keeps laws like this from passing."

But Del. Joseph F. Vallario Jr., chairman of the House Judiciary Committee, says the law shouldn't punish people who have made a mistake.

"There is no intent to commit a crime," he says. "An accident is what it is, and it should not necessarily follow that incarceration is needed."

His opinion is echoed by defense lawyers.

Jack Rubin, a veteran Baltimore lawyer, says a negligent-homicide law "is just a knee-jerk response to crime."

"The country is so obsessed with making all offenses jailable. But these are just honest mistakes in judgment," Rubin says. "Do you put a grandmother, a mother driving her children to soccer practice, in jail?"

A tool for judges

Gansler scoffs at that. "There's prosecutorial discretion in charging in every case. Each case doesn't necessarily warrant jail time, but the judge should have that tool," he says.

Mackey says the state must make the punishment fit the crime: "You rob someone of their life. You take them from their family, and the worst thing that's going to happen to you is they're going to be inconvenienced because someone has to drive them around for a while. Tell me why I should feel I've gotten satisfaction."

Pub Date: 6/17/99

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