A Lesser Evil

Which is worse, a man’s sexual attack of a woman, or drunk driving?  These “clash of the titans” cases create a dilemma for advocates, all of whom promote their most hated offense as the worst thing that could ever happen.  Fortunately for 48 year old Donna Powell, the attack trumped drunk driving, resulting in her acquittal.

From Newsday :


Powell, who admitted driving last October with more than twice the legal limit of alcohol in her system, said she was forced to get behind the wheel drunk after a man she had left a bar with took her to a remote area and attacked her.

The man,Long Island Jewish Medical Center executive director John Steel, denied in court that he had attacked Powell, though he admitted that he is addicted to crack, and said he took Powell to buy and then smoke the drug.

Before delving further into the fascinating legal issues, it’s impossible to move beyond some of the more scintillating details of the individuals involved.  John Steel, the accused attacker, is the director of LIJ Medical Center, and his explanation for his conduct is that he’s addicted to crack?  There’s a advertisement hidden in here somewhere for St. Francis Hospital.

And Ms. Powell, whose occupation is left to the imagination, left a bar with Steel, having imbibed sufficiently to double the legal limit of alcohol, and was so shocked by Steel’s advances that she needed to escape?  I envision her as a nuclear physicist, or perhaps a charm school instructor.  I hate it when they give enough details to spark one’s interest, but not enough to close the loop.

The bench trial, before Judge George Peck, had Powell testify that Steel attacked her.  Even though she was drunk as a skunk, she had no choice but to jump into the car a speed away.  That’s what she said in court, anyway.


Powell did not tell police that Steel had attacked her when she was arrested, a fact that prosecutors said was a major hole in her story. Powell’s lawyer, James Pascarella of Huntington, said it is common for sexual assault victims to delay reporting attacks.


Happens all the time.  All the time.  Judge Beck found Powell credible, and that there was some external evidence to support her allegations.  He also found Steel less credible.  Crack addicts are often found to be less credible, and one should bear that in mind when considering their drug of choice.  Once Powell sufficiently established that the attack happened, the burden shifted to the prosecution to prove it didn’t.  Upon failure to do so, they justification defense prevailed

Use of a justification defense in a drunk driving case is truly brilliant.  It’s not easy to claim that someone simply had to drive drunk lest a greater crime occur.  While the facts of this case are unlikely to fall into the mainstream of drunk driving prosecutions, lending themselves to a potential justification argument, it does open up a number of possibilities that may not have occurred to lawyers before. 

The prosecutor, Maureen McCormack (no, not Marsha, Marsha, Marsha), not only felt the sting of a loss when the case should have been a slam dunk, but the future of drunk driving prosecutions in a County where the campaigning District Attorney is demanding reinstitution of the death penalty.


Prosecutor Maureen McCormack said she was deeply disappointed.

“If she [Powell] can make this unsubstantiated claim and get off, it makes you concerned about what other claims will be made by other defendants in the future,” she said. “They would have every reason to be emboldened by this decision.”
I know exactly what she means.  Imagine a society where people can be convicted of crimes and sent to prison for decades based solely on the unsubstantiated claim of police officer, with absolutely no hard evidence whatsoever.  They would have every reason to be emboldened by such a decision.

H/T The Blind Guy. 

One thought on “A Lesser Evil

  1. John R.

    Yes! I know exactly what you mean about that word “unsubstantiated”; when used by a prosecutor it’s incredibly revealing of their peculiar myopia.

    Rock solid evidence tending to exonerate someone they have decided to prosecute is often characterized as “unsubstantiated”; meanwhile that epithet seems not to apply to even the worst type of garbage evidence offered by a prosecutor, like jail house snitch testimony about a supposed “confession”.

    It’s like the word “frivolous”. It is applied only to lawsuits brought by private parties, never to lawsuits brought by the government, which of course are largely criminal prosecutions. Yet there are huge numbers of frivolous prosecutions, if by frivolous we mean little or no basis, or a strained and self serving interpretation of the law.

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