In light of the decision to not prosecute in the Holden case, when the driver fell asleep at the wheel, I thought this 2013 article on the use of the 2011 Criminally Negligent Manslaughter law was instructive.
prosecutors from around the state have had mixed success in winning convictions using the new criminally negligent law, created in 2011 as a middle ground between auto manslaughter and lesser traffic charges punishable with fines.
prosecutors are seeking changes to the new law, which carries a sentence of up to three years in prison and $5,000 fine, because they say even that is difficult to prove.
"It looks great on paper, but it doesn't work out that way," Anne Arundel County State's Attorney Anne Colt Leitess said of the new law.
In the other Anne Arundel case, Edward Cramer of North Beach was found not guilty of criminally negligent manslaughter in the death of jazz musician Joe Byrd
In drafting the criminally negligent manslaughter legislation, lawmakers aimed to create a charge that would punish drivers who cause fatal wrecks but whose actions don't rise to the "gross negligence" standard of auto manslaughter.
Under the new law, prosecutors must prove the driver made a "gross deviation" from how a reasonable person would act in the situation.
Several area prosecutors argue gross deviation is too tough to prove and too similar to the existing auto manslaughter law. They say it would be more appropriate for the charge to require only a "substantial deviation," which more aptly applies to actions that are more egregious than traffic violations.
Prosecutors have tried unsuccessfully to persuade state lawmakers to change the law and plan to try again in next year's General Assembly session.
In Baltimore County, Deputy State's Attorney John Cox said his office has been successful in prosecuting criminally negligent manslaughter cases two out of three times.
In the one case that didn't result in a conviction, Cox said, the driver was allegedly talking on the phone and traveling at 62 mph before smashing into the back of a car stopped on Interstate 83 because of an accident ahead. A 5-year-old boy in the back seat was killed, he said.
A judge found the driver not guilty of criminally negligent manslaughter and fined the driver $1,000 for negligent driving and speeding, Cox said.
"I truly believe I may have had much different chances of success if the law was more clearly set forward," Cox said.
Del. Luiz R.S. Simmons, a Democrat from Montgomery County, spent seven years trying to get the law passed. He said he would consider tweaks — but only if the state's attorneys can prove it's not working.
"I think that it's a fair law," said Simmons, a lawyer whose practice includes criminal defense. "It's an intermediate standard. It was designed to try to bring justice to the grieving families and children who have lost family members because of extreme acts of negligence."
More than 20 people traveled to Annapolis in 2011 to testify to lawmakers about the heartbreaking crashes that killed their loved ones and the drivers who only paid small fines for causing them.
In the emotionally charged hearing, lawmakers heard from a Reisterstown father whose teenage son was killed, the wife of a highway worker killed on the job near Frederick and an Owings Mills woman whose husband was struck and killed while riding his bike in northern Baltimore County.
Bishop Heather Cook, who hit and killed cyclist Thomas Palermo while she was driving drunk and texting, was sentenced to serve 7 years in prison. Thomas Palermo, a 41-year-old software engineer and father of two young children, as hit from behind by Cook in the Roland Park area of Maryland.
Cook, 59, pleaded guilty last month to automobile manslaughter, leaving the scene of an accident and other violations.
The Palermo family, who lived in the Anneslie neighborhood of Towson, spent the morning of Dec. 27 hiking at Gunpowder Falls. Thomas Palermo stopped to help a inexperienced kayaker who was having trouble, his wife, Rachel Rock Palermo, recalled in a letter to the court.
Later, he went out for a bike ride. A software engineer at Johns Hopkins Hospital, he had a side business building bike frames.
He was cycling down Roland Avenue in Roland Park when Cook veered into the bike lane, killing him almost instantly.
Her car was badly damaged, but Cook drove on.
The state recommended a 20 year sentence with 10 of those years suspended.
The only similar Maryland sentence I can think of (My database only looks at Montgomery and PG Counties) is Quinzy Fraser, who was sentenced to just 10 years, but only two were suspended. So her sentence was longer, but her time to serve is shorter. On the one hand, she committed the added offense of texting while driving, but on the other, she did return to the crash site on her own. Still, I think her time to serve should have been more similar to, if not longer than Fraser's, but I wasn't in either courtroom, so what do I know.
The United House of Prayer (UHOP) recently sent a letter to DDOT Director Leif Dormsjo claiming that restricting free parking on public streets near their church, as DDOT has proposed doing as part of the Eastern Downtown Protected Bikeways study, "would place an extreme burden on the free exercise of religion". Furthermore they claim that UHOP, and other historically African-American churches, are being discriminated against by DDOT in order to force them to sell their property and move out of the city, and that this discriminatory treatment denies them equal protection under the law. Finally they claim that bike lanes aren't even needed there since, in the 90 years that UHOP has been in it's location, "bicycles have freely and safely traversed the District of Columbia...without any protected bicycle lanes."
Opposing bike lanes because of the impact on parking is nothing new for DC churches. St. John's Episcopal Church made the same claim, that the lack of parking would force their parishioners elsewhere, back in 1995 and yet today they still have a "vibrant" community. The Methodist AME church on M Street complained about the impact of the proposed protected bike lane there on their older members. And the pastor of Galbraith A.M.E Zion Church, representing several churches on 6th Street, did the same during the early stages of this project. But none went so far as to claim they were being discriminated against as part of a plan to force them out of the city or that they were being denied the right to practice their religion. This represents a whole new standard.
The letter, sent on the church's behalf by Mary E. Gately of DLA Piper makes these outrageous claims about the impact, legality and alternatives to a protected bikeway on 6th Street while ignoring the simple fact that the claims are inaccurate and offered, in every case, without a shred of evidence.
They state that the parking restrictions included in the proposal would "impermissibly infringe...upon the Church's and parishioners' Constitutionally protected rights of free religion." But that's not true. The basis for their claim is not the Constitution, because the court has already decided in Employment Division v. Smith and Lyng v. Northwest Indian Cemetery Protective Association that neutral acts of government, such as zoning laws or taxes, that incidentally impacted religious activity were not unconstitutional.
Instead, the actual basis of their believed protection is the Religious Freedom Restoration Act, which Congress passed in response to those case. The RFRA reinstated, as a statutory right, the Sherbert Test and required the government to accept additional obligations to protect religious exercise. When the Supreme Court struck down the RFRA's applicability to states, Congress amended the law, via the Religious Land Use and Institutionalized Person Act so that it applied only to the Federal government and its entities, which includes the District of Columbia.
The church is concerned that the installation of protected bikeways on 6th and M will restrict parking on publicly owned land and that this will represent a "significant burden" on the church. But the court has always defined "significant burden" as forcing people to choose between following their religious beliefs or avoid a penalty/retaining a benefit. Like agreeing to work on Saturdays to keep unemployment benefits, or paying a $5 fine for homeschooling. But the idea that reducing on-street parking near a church is a "significant burden" on religion is a misreading the law. No one is being forced into a choice that might lead to an action that is against their religion - unless their religion has a prohibition on walking a couple of blocks. And arguing that restricting parking near a church that is served by transit, sidewalks, roads and bike facilities is a significant burden in the layman's sense is laughable at best.
In addition to making an RFRA claim, the church asserts that the restriction on parking and loss of a traffic lane deprives them of equal protection under the law. The "D.C. government seems to view tax exempt church-owned properties as a drag on revenue" and thus DDOT appears to be "targeting historically African-American churches with restrictive parking regulations and extremely stringent enforcement to drive them out of the District" at which point the churches "must sell their tax-exempt D.C. property to non-tax exempt developers." That's a lot of supposition masquerading as truth.
Rather than creating new regulations to harm church parking - which is not what DDOT is proposing here, there is more proof that DDOT has created extraordinarycarve-outs and exceptions to the existing regulations to accommodate church parking.
There is also no evidence that D.C. is trying to force churches, and certainly not historically African-American churches, out of the District. That's a pretty incendiary and extraordinary claim - and Ms. Gately should know that such claims require extraordinary evidence. And even if DC were trying to drive churches (and, inexplicably, only the historically African-American ones) out of DC, churches that move are not required to sell to tax-exempt developers. If DC were doing something like what is claimed, that would be illegal (as well as bad policy and bad politics) but since there is no evidence at all that this is the plan, there is no denial of equal protection.
Most troublesome perhaps, is their claim that a bike facility isn't even needed here. "The encroachment is entirely unnecessary to achieve DDOT's goal of increasing bicycle rights of way." UHOP complains that DDOT, because it hasn't changed its plans, hasn't listened to their concerns (you'd think that a church with "prayer" in the name would understand that even God doesn't answer every prayer. Should DDOT be expected to do better?); but it's unclear that UHOP has been listening to DDOT's reasons for changing the street. DDOT's goal is create a street that is safer and more appealing for cyclists, one that encourages a wider variety of cyclists to ride bikes in the area and that goal can not be achieved by the status quo.
UHOP instead proposes, in language that is jumbled and incomplete*, that the bikeway simply divert around the church by using N Street and some other numbered street before returning to 6th south of the church. This "alternative" ignores the way people travel, as well as the goals of the project, and if 5th is their intended alternative (they either conveniently or absent-mindedly fail to say), it has two churches along the block from M to N and one along 5th. What about their religious freedom and equal protection under the law? UHOP cynically seems to not care.
Asking that the bike facility still be built, but somewhere farther away from them is classic NIMBY behavior. Surely UHOP can be a better neighbor than that, They should work with DDOT to find a solution to their parking needs while also building a bicycle facility fitting the District's needs, without resorting to unfounded, and inflammatory, accusations.
*"there is another alternative that would simply entail altering the proposed bicycle lane's route by one block, such that the bike tracks would follow 6th Street to "N" street for the block or two needed to avoid impacting adversely on any parking..." I have no idea what that actually means. To N Street from where? And then what? This is gibberish. But I've done my best.
Former Episcopal bishop Heather Elizabeth Cook pleaded guilty Tuesday to four counts related to the December drunken-driving death of bicyclist Thomas Palermo in North Baltimore.
She pleaded guilty to one count of automobile manslaughter, which carries a maximum penalty of 10 years; leaving the scene of a fatal accident, which also carries a maximum penalty of 10 years; and driving while under the influence and texting while driving, which both bring a maximum penalty of one year.
I can't say I'm too surprised, since in cases like these, it's my experience that the accused usually pleas, but the sentence prosecutors are seeking would be the longest I've ever heard of in the region.
Prosecutors said they would ask for a sentence of 20 years, with all but 10 years suspended, to be followed by five years' probation. Judge Timothy Doory scheduled sentencing for Oct. 27. He said he would not sentence Cook to any more time than prosecutors are seeking but could give her less.
Still local bike advocates don't think it's enough.
Bicycle advocates Liz Cornish of Bikemore and Nate Evans of Bike Maryland attended the hearing and said they did not believe the sentence prosecutors are seeking is sufficient. Tougher penalties would deter others from committing similar crimes and contribute to a greater awareness of the "immense responsibility that comes with operating a motor vehicle," Cornish said.
Nadine Rager, a Western Maryland woman who struck and killed a cyclist while she was texting and then drove away, pleaded guilty to negligent manslaughter by vehicle and was sentenced to 10 years in prison, all but 5 suspended.
Circuit Court Judge M. Kenneth Long Jr. sentenced Nadine Louise-Nicole Rager, 24, of Abbey Lane to serve 10 years, but suspended five years and gave her 165 days of credit for previous time served.
Long also ordered Rager, who pleaded guilty to negligent manslaughter by vehicle, to be on supervised probation for five years upon her release and pay restitution of $1,979 to the family of John William Bushman Sr. to cover funeral costs.
In addition to texting while driving,
Investigators also determined that Rager was traveling home after visiting a drug dealer to purchase spice, or synthetic marijuana, and also had smoked some of the illegal substance earlier in the night.
Assistant State's Attorney Leon Debes said he learned that Rager was "not a very good person," noting several instances in which she lied about the events that unfolded the night Bushman was killed.
He told the judge that Rager was disrespectful to family members when she was jailed and showed little remorse for what had happened.
Meanwhile the defense argued that she was the victim of abuse
Assistant Public Defender Loren R. Villa said that Rager, also a mother of a young child, endured a difficult upbringing, and was abused and molested when she was a child.
She struggled with substance abuse and got mixed up with the wrong crowd, Villa said.
Bushman had had trouble with the law, but was trying to turn his life around. He was riding a bike to work rather than drive on a suspended license.
Bushman and Rager were both traveling west along West Washington Street when the crash occurred. Rager, who was driving her boyfriend's 2010 Mazda 3, fled the scene without stopping, prosecutors said.
About 15 minutes after the accident, a passer-by spotted Bushman's body lying in the road and alerted authorities. The collision left pieces of the car behind, and investigators were able to identify the make and model of the vehicle
Without knowing the extent of his injuries, one has to wonder if 15 minutes would have made a difference here. That can be a very long time for someone in trauma as I understand it.
And she's a repeat offender here.
Rager's previous record includes probation before judgment for driving while suspended and using a handheld telephone while driving, prosecutors said.
Those charges were filed in 2014, but the pleas were entered on Feb. 5, a week after Bushman's death, according to Washington County District Court records.
Online court records indicated Rager also had an earlier conviction for using a handheld telephone while driving.
Some piece of work.
On the one hand, the only other Maryland driver I know of who was sentenced to as long as 10 years for a fatal bike crash is former Terrapin football player Quinzy Fraser. [His sentence was suspended to eight years, of which he should be about half way done now. But I remember about 2 years ago he was up for parole, and I can't find him in the Maryland Corrections system, so who knows].
On the other hand, that sentence seemed a little short for someone who was, like Rager, a repeat offender, who drove recklessly and then left the cyclist to die.
Michael Sprick, who was struck from behind while riding on the shoulder on Route 100 in Pulaski County, VA, won a $21 million settlement (with $7 million in attorney's fees) in January.
The settlement is "one of the largest personal injury settlements ever recovered in Virginia" wrote U.S. Magistrate Judge Robert S. Ballou.
The article at Virginia Lawyer's Weekly is behind the paywall and mostly about how hard the lawyers had to work to win the case. Sprick was in Germany, which created language issues and meant the billing was in an unorthodox format, since they're blind to retail cost. At one point they thought Sprick would die and they had to work with the insurance company to get the money to fly him back home. The truck was owned by a subsidiary of Hostess, which went bankrupt during the process. Still, most of the litigation was about damages, not who was at fault. Here's a more available article.
Witnesses claimed the truck drifted onto the shoulder and hit Sprick from behind, sending him flying 105 feet. The driver claimed that a another vehicle forced him to the right. The driver was convicted of reckless driving and driving on a suspended license, and sentenced to a $500 in fine (with another $100 suspended for good behavior) and a suspended 90-day jail sentence back in 2011.
Do you support the bill introduced by Councilmembers Grosso, Wells, and Cheh to replace the contributory negligence statute as it applies to pedestrians and bicyclists with comparative negligence?
David Catania: Yes.
Muriel Bowser: It’s an issue that deserves further consideration. I know a lot of states have a comparative negligence standard and it gives bikers legal protections so they have some redress even when they were partially at fault for an accident. But, I’m also interested in knowing why bikers deserve unique treatment compared to victims in other personal injury cases. There are also other solutions to help protect bikers. MPD needs to be better trained on the laws in place to protect bikers. We need more protected bike lanes throughout the city so accidents never happen. We also need to train both drivers and bikers to share the roads and drive/ride safely.
If Muriel Bowser wants to end contributory negligence in all cases, that's a possibly good proposal, but it's not one that's on the table right now. If she wants to say that either everyone gets a life vest or no one does, that's a bad proposal.
Shane Farthing of WABA has a good long essay on the messed up standard by which cyclists in DC must operate in order to seek relief from insurance companies and the courts. In it he has a denial letter to Evan Wilder, who many may remember was passed too closely by a driver who then slammed on his brakes resulting in Wilder hitting the truck from behind. In it they say that he contributed to the crash by failing to keep a careful look-out. Here's the video for thos who are unaware. The whole thing is a good read.
The DC Bar will be hosting a forum on DC bicycle laws with WABA executive director Shane Farthing (a recovering lawyer himself) later this month.
As an increasing amount of road space in the District of Columbia is safeguarded for cyclists, liability is still not easily determined in bike accident cases. In light of the recent introduction of the contributory negligence bill, join us in examining D.C. bike laws, new legislation and the impact D.C.’s contributory negligence defense claim has on D.C. cyclists. We will hear from Washington Area Bicyclist Association (WABA) along with plaintiff’s side view of litigating cyclists’ personal injury claims. Bring your favorite lunch and get ready for this exciting helmet dropping program. All are invited!
Sorry no CLE credit.
D.C. Bar Conference Center 1101 K Street, NW, Conference Center (Metro Center Station) Washington DC 20005