It’s not mere chance that so much bad law comes out of Nassau County, New York. The former District Attorney, Kathleen Rice, planned to ride her drunk driving crusade all the way to Washington, and she did. With the blessing of those who were only too happy to ship her out of town.
But we’re still cleaning up the mess she left behind, including the misbegotten prosecution of James Ryan for the bizarre death of Police Officer Joseph Olivieri. At Fault Lines, Ken Womble provides the backstory from the Appellate Division, Second Department’s decision reversing the dismissal of homicide charges:
According to the evidence presented to a grand jury, on October 18, 2012, before dawn, the defendant allegedly caused two collisions when he drove his car on the Long Island Expressway while he was under the influence of alcohol. In the immediate aftermath of those collisions, the defendant’s stopped vehicle was in the eastbound High Occupancy Vehicle (hereinafter HOV) lane, facing perpendicular to the direction of traffic. Within a few minutes, a police officer responded to the scene. While the officer was standing near the defendant’s stopped car, he was struck and killed when the driver of a sport utility vehicle traveling in the HOV lane did not see him or the defendant’s stopped car in time to avoid hitting them.
Unlike federal law, New York allows a defendant to move to dismiss charges in an indictment for legal insufficiency. The trial court tossed charges against Ryan based upon the disconnect between his conduct, drunk driving, and the death of Olivieri. The appellate court reversed.
There was never any doubt that the Nassau County District Attorney’s Office was going to charge Ryan with driving while intoxicated. DWI charges are kind of their thing. What surprised a number of people, including Mr. Ryan’s defense attorneys, was that the DA’s Office was able to obtain an indictment for far more serious charges.
The prosecution’s theory was premised on the “but for” argument for culpability. There was no question that Ryan drove drunk. There was no question that Ryan did not drive the car that killed P.O. Olivieri. There was no question that Olivieri was killed. But for Ryan’s drunk driving, Olivieri wouldn’t have died. Easy, right?
The law is not that easy. The law is never that easy. Judges often write sentences that seem to be clear in their simplicity, but the trained eye of a lawyer knows to dig deeper to find the actual legal meaning. In this particular decision, the digging begins at People v. DaCosta and People v. Matos. These cases along with People v. Kibbe provide actual examples of the line between accident and homicide by showing just how far New York courts have been willing to attenuate causation.
The question of culpability is pretty straightforward when the defendant is the individual who did the dirty deed, in this case struck and killed Olivieri. Except that wasn’t the case. It’s not that the defendant was pure as the driven snow, at least from a distance, as he did drive drunk, and drunk driving his been vilified to the point of being tantamount to murder in itself. You gotta give MADD props.
But as Ken says, it’s a matter of attenuation. How many steps away can a defendant be before his wrong can no longer be deemed responsible for subsequent harm committed by another? The driver who killed Olivieri had an accident, an act of negligence at best. One is supposed to remain sufficiently aware of the fact that there may be someone, something, in the road ahead, so that you don’t drive your car into it or him. That someone died is a tragedy, but that a tragedy occurred doesn’t make it a crime.
But it is not the causation between Ryan’s intoxication and the accident that is at issue. It is the causation between the accident and the death, 5 to 10 minutes later, of Officer Olivieri.
And while it may not be so easy to connect Ryan’s wrongdoing with Olivieri’s death, given the intervening act of negligence by the driver who actually killed the officer, it’s similarly not too hard to connect the dots.
As one commenter to Ken’s post wrote:
To put it simply, but for the alcohol, would he have caused the crash? If yes, but for the crash, would the cop have been there to get hit?
While I can understand a multiple step causation test being problematic in light of the precedents you cited above, it’s not like a cop attending a crash is an unlikely event for a drunk driver to consider. Does the probability of what the second hop is figure in at all?
And another wrote:
I don’t think it’s too much of a stretch to foresee that driving while intoxicated will lead to traffic accidents, and that deaths may result from said accidents. That seems like common knowledge to me.
And it’s true that the devolution of causation of harm has become “common knowledge,” that we have been skipping down the path of act to consequences with such fuzzy glasses that we no longer get too bent by the number of steps, of assumptions, of fortuitous events, between the conduct committed and the eventual harm attributed to it.
As Mark Draughn, the WindyPundit, replied in a comment for those who require concrete examples of how concepts apply,
What if it wasn’t a DWI? What it it was speeding? Or right turn on red where not allowed? An equipment violation? Illegal parking? In all those cases, it would not be unlikely event for a cop to stand alongside the car, and he wouldn’t be there but for the violation. What’s the principle here? That whenever a cop gets struck and killed we pin a murder on whoever made him get out of his patrol car?
And where does it stop? If one of the police witnesses in Ryan’s trial gets killed in a car accident while driving to the courthouse — which but for Ryan’s alleged DWI, he wouldn’t be doing — does Ryan get hit with another murder charge?
Windy goes after the vilification of drunk driving, which has become the equivalent of shooting a bullet into a crowd, to make a point. But even if it wasn’t just about the commonly accepted inherent evil of drunk driving, what if Olivieri wasn’t killed, but merely winged, and then taken away by ambulance, which was t-boned by a big rig, resulting in death? What if Olivieri made it to the hospital, but then killed by medical malpractice? See how the game of attenuation gets played?
Criminal culpability can be extended to pretty much anything based upon how liberally one views reasonable foreseeability. This is the butterfly theory of crime, where one bad act gets blamed for all consequential harms that could arguably flow from it. But the crime Ryan committed was driving drunk.
That Ryan, as a drunk driver, might crash into a car is a direct consequence of his conduct. But if his culpability doesn’t end with the direct consequence of his actions, if his culpability covers the attenuated intervention of forces beyond his control, then he could be held criminally liable for pretty much anything.
The only remaining question is whether “common knowledge” would have any problem with that, since every tragedy, particularly one involving the death of a cop, seems to demand that someone be criminally culpable. And we do so hate drunk driving.