An  old friend of mine twitted at me in the hope of getting my goat:

Greenfield silent on ADA plea bargain in EMT assault? Is voluntary intoxication a defense for intentional conduct??

I can’t imagine his profs at Columbia J-School would have thought well of his double question mark, but he was chiding me into a fuller discussion than twitter can afford. Even though a twit is limited to 140 characters, there’s always room for excessive punctuation.

He was referring to the case of former Brooklyn Assistant District Attorney Michael Jaccarino, who got so blotto on night that he was found wandering the Brooklyn Bridge. Contrary to romantic movies, this isn’t a good idea, and nobody unfortified or unsuicidal would do such a thing.  He was picked up by an ambulance, where the story got even uglier.

The prosecutor, Michael Jaccarino, had been seen wandering, intoxicated, on the roadway of the Brooklyn Bridge in November. An assistant district attorney from Manhattan said that after the ambulance picked him up, he unbuckled himself from a gurney, struck an emergency medical technician, Teresa Soler, held her down with his forearm pressed against her neck and choked her.

Jaccarino has no memory of the event. Having avoided choking EMTs prior to the incident, it doesn’t appear that he had a violent nature or was inclined to EMT beating. Yet it happened. 

He was charged with 2d Degree Assault, but the case ended with a plea to misdemeanor assault and ten days of community service? 

Mr. Jaccarino was initially charged with second-degree assault, a felony, but the assistant district attorney, Sherita Walton, told a judge in Manhattan Criminal Court that her office had decided to charge Mr. Jaccarino with reckless assault, a misdemeanor and allow him to resolve the case by pleading guilty to that charge rather than to a felony.

Mr. Jaccarino was so drunk, Ms. Walton told Judge Melissa A. Crane, that it would have been difficult to prove that he meant to assault Ms. Soler. She added that if Mr. Jaccarino’s “intoxication was of such an extent and nature to render him incapable of forming the particular criminal intent, then he would not be criminally responsible for committing this crime.”

My buddy was confused, wondering how voluntary drunkenness could get him a pass on the attack. The problem wasn’t that being drunk meant you get to attack people with impunity, but that when crimes require specific intent, as was the case with Assault 2, the ability to formulate the intent is affected by drunkenness.

Penal Law 15.25 codifies the point:

§15.25 Effect of intoxication upon liability.

Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence  of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

The  jury charge provides that it’s left to the jury to determine whether intoxicants affected the defendant’s mind to such a degree that he was incapable of forming the intent necessary for the crime.

The courtroom was filled with EMTs, who were terribly dissatisfied with the perceived “slap on the wrist” given Jaccarino. He did some damage to one of their own, and they wanted payback.  My buddy, who’s job it is to impart wisdom to that aging segment of society who gets their wisdom from TV news, found it hard to imagine that voluntary drunkenness could be a defense to an assault. Was this an instance of one prosecutor doing a solid for another?

The way crimes are structured (or at least should be, provided there was no recent death of a child) is that aggravating factors increase the level of severity, and hence punishment.  Was drunkenness a defense to assault? No. But it does mitigate the degree of culpability, as evidence that the defendant couldn’t form the specific intent to commit the crime.  Does that make it less of an assault? No, but it does make it difficult (and in this case, likely impossible), to prove Assault 2 with its intent element.

Jaccarino lost his job. Jaccarino will carry a misdemeanor conviction, which is no big deal if your future is a life of crime, but is a pretty big deal if you’re a lawyer.  The ten days community service is a throwaway sentence, and it wouldn’t be a surprise to get a split sentence, anywhere from 30 days to 6 months, if he hadn’t been a prosecutor, for the misdemeanor assault.  It appears that the collateral consequences weighed on the sentence, and they should.

Did Michael Jaccarino mean to harm EMT Teresa Soler that night? Does anyone really think there was a violent nutjob hiding in the prosecutor’s suit, waiting for the opportunity to attack in the back of an ambulance?  Or was this an anomaly, a drunk who did something he would never otherwise do?

It seems as if an attack as violent as that perpetrated on Soler by Jaccarino ought to carry a heavier price, not because he was an evil, violent guy, but because he did some real harm to a person who was there to help him, a person whose career was dedicated to helping others and who was vulnerable to attack. It’s ugly, and no one can blame the EMTs from wanting Jaccarino to be made an example so that others would know that you don’t attack an EMT and get a slap on the wrist.

It’s not that anyone, Jaccarino included, gets a free ride on an assault because he was drunk.  He didn’t, whether the ten days was sufficient or not.  But the scheme of severity and sentence that goes with aggravating and mitigating factors is intended to provide lines not to be crossed. Would a sober Michael Jaccarino have assaulted Teresa Soler? If not, then the aggravating element of intent wasn’t met.

And as to whether the prosecution cut a break to one of their own, perhaps. Or perhaps this is how the system is supposed to work, but too often the prosecution doesn’t sufficiently take into account mitigating factors, such as the inability to formulate specific intent, and fails to offer a sentence that is properly suited to the moral culpability of the defendant.  The point isn’t to be needless harsh to the former prosecutor, but to me more merciful toward all.

Hope that helps, pal. And if I didn’t mention it before, one of the things I’ve long admired about your reporting is your desire to get it right. It’s why you’re one of the best around.