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 that case the driver ran a red light.
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.