CINCINNATI (TDB) -- University of Cincinnati law professor Christo Lassiter has joined the chorus of those who say Clermont County's Republican prosecutor seriously screwed up the case of a mom whose two-year-old baked to death in a Mercedes on Aug. 23, the hottest afternoon so far this year. Lassiter is calling on federal authorities to investigate the case and says forgetfulness is no excuse for a parent who leaves a child inside a vehicle with the windows rolled up on a blazing hot summer day.
Lassiter, a former Marine Corps lawyer who handled criminal prosecutions in the military, unleashed his criticism in a guest column for today's Cincinnati Enquirer. The law school professor stopped short of calling Clermont Prosecutor Don White an idiot. Instead, Lassiter described White's explanation for not taking action against the mother of Cecilia Slaby as something akin to legal bunkum.
"White argues that because Nesselroad-Slaby says she forgot she put the baby in the car, she therefore did not disregard a known risk. White's assertion finds no support in recorded cases. A Westlaw search of convictions under R.C. 2919.22 where the child endangering consisted of leaving a child unattended yielded 31 cases sustained on appeal. There is not a single case that I have been able to find in Ohio where the defense of forgetfulness rebutted a finding of recklessness. Nesselroad-Slaby formed a habit of leaving Cecilia unattended, making it a habit to forget about her altogether, and therein lies her recklessness."
Lassiter's faculty biography and list of interests at the University of Cincinnati are available here.
Showing posts with label Child Endangering. Show all posts
Showing posts with label Child Endangering. Show all posts
Tuesday, September 11, 2007
Friday, September 07, 2007
Ohio Prosecutor's Nifong Moment (II): 'Extreme Temperatures' Are Grounds For Convictions
CINCINNATI (TDB) -- Former Cleveland Law Director Subodh Chandra and city prosecutors acted aggressively to protect Ohio's children with their legal tactics in 2003 and 2004. They went after a boozer who put a two-year-old outdoors in sub-freezing cold after a post-Thanksgiving drinking bout. The child suffered no injuries from chill and snow, but the case still concluded with a guilty verdict of child endangerment. A state appeals court said a critical issue was: Does knowingly exposing a child to extreme weather conditions create a substantial risk to health and safety?
It sided with Chandra: Extreme weather is a risk.
The efforts to seek a conviction in Cleveland are in contrast with Clermont County Prosecutor Don White's decision not to take action in the death of Cecilia Slaby. The two-year-old perished Aug. 23 while strapped into her mother's Mercedes on a blazing summer day. White's office says the mother, a school administrator, accidentally forgot about the child and didn't heedlessly disregard a known risk. The risk: Extreme temperature in a vehicle parked outdoors in the August heat.
The complete text of the 12-page decision from Cleveland is available(PDF) from the Ohio Supreme Court. Chandra's team argued that the presence of severe weather automatically creates a strong possibility of harm to a child. It also contended the man locked the door when he kicked the two-year-old out into the cold with her mother, which created a "culpable mental state" required for conviction. The 8th District Ohio Court of Appeals agreed:
"Exposure to extreme temperatures for a relatively extended period of time creates a substantial risk to the health or safety of a child. A rational trier of fact could have found that sub-freezing temperatures created a substantial risk to the health or safety of the child despite the fact that she was with her mother, and despite the fact that she was wearing a coat . . .
"The snow and low temperatures that night gave (the defendant) good reason for expectation or belief that the two-year-old child could suffer from exposure. Moreover, based on evidence that the mother and child were forced out, a rational trier of fact could reasonably conclude that (the defendant) perversely disregarded, with heedless indifference to the consequences, the known risk that the two-year-old could suffer from exposure."
Mom and daughter walked about eight blocks that night in Cleveland to a pay phone, where they dialed 911 and were rescued by police. There was no frostbite or medical damage, although the little girl urinated in the pajamas she wore under her winter coat. The conviction for child endangering led to a $150 fine, a suspended 90-day jail sentence and a year of probation with substance abuse assessment and counseling.
It sided with Chandra: Extreme weather is a risk.
The efforts to seek a conviction in Cleveland are in contrast with Clermont County Prosecutor Don White's decision not to take action in the death of Cecilia Slaby. The two-year-old perished Aug. 23 while strapped into her mother's Mercedes on a blazing summer day. White's office says the mother, a school administrator, accidentally forgot about the child and didn't heedlessly disregard a known risk. The risk: Extreme temperature in a vehicle parked outdoors in the August heat.
The complete text of the 12-page decision from Cleveland is available(PDF) from the Ohio Supreme Court. Chandra's team argued that the presence of severe weather automatically creates a strong possibility of harm to a child. It also contended the man locked the door when he kicked the two-year-old out into the cold with her mother, which created a "culpable mental state" required for conviction. The 8th District Ohio Court of Appeals agreed:
"Exposure to extreme temperatures for a relatively extended period of time creates a substantial risk to the health or safety of a child. A rational trier of fact could have found that sub-freezing temperatures created a substantial risk to the health or safety of the child despite the fact that she was with her mother, and despite the fact that she was wearing a coat . . .
"The snow and low temperatures that night gave (the defendant) good reason for expectation or belief that the two-year-old child could suffer from exposure. Moreover, based on evidence that the mother and child were forced out, a rational trier of fact could reasonably conclude that (the defendant) perversely disregarded, with heedless indifference to the consequences, the known risk that the two-year-old could suffer from exposure."
Mom and daughter walked about eight blocks that night in Cleveland to a pay phone, where they dialed 911 and were rescued by police. There was no frostbite or medical damage, although the little girl urinated in the pajamas she wore under her winter coat. The conviction for child endangering led to a $150 fine, a suspended 90-day jail sentence and a year of probation with substance abuse assessment and counseling.
Thursday, September 06, 2007
Ohio Prosecutor's Nifong Moment? Parents DO Get Jail For Baked Or Frozen Kids
COLUMBUS (TDB) -- In Ohio, parents can and do go to jail for exposing their children to extreme temperatures by leaving them in cars when the sun is blazing, or locking them outdoors when the snow is falling. It even happened not so long ago on a hot afternoon in Clermont County. And there is proof from the Ohio Supreme Court.
The high court has an online portal where important legal decisions from around the state are stored for lawyers to scrutinize and study. Scholars are now poring over the the full 24-page text of State of Ohio vs. Jerry Bittner from Clermont County (PDF). Even for laymen, the case is well worth reading.
[UPDATE: 7:23 PM edt -- Nate Livingston at the Cincinnati Black Blog has been all over the Slaby story and has dug up the same court of appeals case on Lexis. Nate suspects there are issues of class and race in the way child endangering cases are handled in Ohio. And he clearly is on to something.]
[UPDATE II: 7:40 PM edt -- Nixguy has been following the trail blazed by Cincinnati Black Blog. This is turning into one of those events that crosses the political divide between left and right.]
Until today, Bitner has been an obscure Dec. 31, 2001 appeals court ruling that sent a dad to prison for a year after his 6-month-old daughter, Serena, was left in a van on a hot day and died. It's a case every bit as tragic as the death of 2-year-old Cecilia Slaby in her mom's Mercedes Aug. 23 on a broiling summer day in the same county. But there is one significant difference: Clermont County Prosecutor Don White went after Jerry Bittner, who lived in a housetrailer and worked two jobs to support his family. White gave Cecilia's mom -- a high school administrator -- a pass. He won't press charges.
Here is some of what the 12th District Court of Appeals had to say when it upheld Bittner's conviction in Clermont County:
"At 6:30 p.m., appellant came home from work before leaving for his second job. Not seeing Serena he inquired as to her whereabouts. It was then discovered that Serena had been left in the van in the driveway. The temperature that day was eighty-four degrees Fahrenheit. Except for the front passenger window which was opened one to two inches, all the other windows were closed."
The Bittner's had problems with county children's protective services officials in the past, and didn't take their daughter to a hospital immediately. They put her in a bath, cooled her off, then concocted a story that she had been on a bed and managed to wrap herself in a blanket to cause the overheating. The story unravelled when the child died. White's office managed to prove that Bittner was reckless. The appeals court said:
"Parents have a legal duty to protect their children from harm. State v. Sammons (1979), 58 Ohio St. 2d 460,463. The crime of child endangering under R.C. 2919.22 (A) may be committed by acts of omission: 'an inexcusable failure to act in discharge of one's duty to protect a child where such failure to act results in a substantial risk to the child's health or safety is an offense under R.C. 2929.22 (A).' State v Kamel (1984), 12 Ohio St. 3d 306,309.
"After thoroughly reviewing the record, we find that once Serena was found in the van appellant acted recklessly, and that he created a substantial risk to the health of Serena. . . By the time she was discovered in the van, she was suffering from heat exhaustion and was 'already pretty sick' . . . However, rather than call 911 or take her to the hospital appellant decided to give her a bath to cool her off. The record shows that at least 20 minutes elapsed between discovering Serena in the van and putting her in the bath."
So Prosecutor White threw the book at Bittner because he didn't seek quick medical attention for a child broiled in a van. A 911 call may have saved him from prison. But White didn't go after Cecilia's mom, who forgot that her daughter was strapped into a Mercedes and couldn't be revived by emergency workers. A 911 call, it seems, made no difference for Cecilia. It made all the difference for her mom.
Again, the appeals court:
(Bittner's) actions undoubtedly created a substantial risk to his daughter's health, which, in this unfortunate case, led to the child's death. Reviewing the evidence in a light mos favorable to the prosecution, we find that a rational trier of fact could have found that the elements of child endangering, including recklessness, were proven beyond a reasonable doubt. Moreover, our review of the evidence fails to persuade us that the jury lost its way and created a manifest miscarriage of justice. We therefore find (Bittner's) convictions are supported by sufficient evidence and are not against the manifest weight of the evidence."
Here is some of what the 12th District Court of Appeals had to say when it upheld Bittner's conviction in Clermont County:
"At 6:30 p.m., appellant came home from work before leaving for his second job. Not seeing Serena he inquired as to her whereabouts. It was then discovered that Serena had been left in the van in the driveway. The temperature that day was eighty-four degrees Fahrenheit. Except for the front passenger window which was opened one to two inches, all the other windows were closed."
The Bittner's had problems with county children's protective services officials in the past, and didn't take their daughter to a hospital immediately. They put her in a bath, cooled her off, then concocted a story that she had been on a bed and managed to wrap herself in a blanket to cause the overheating. The story unravelled when the child died. White's office managed to prove that Bittner was reckless. The appeals court said:
"Parents have a legal duty to protect their children from harm. State v. Sammons (1979), 58 Ohio St. 2d 460,463. The crime of child endangering under R.C. 2919.22 (A) may be committed by acts of omission: 'an inexcusable failure to act in discharge of one's duty to protect a child where such failure to act results in a substantial risk to the child's health or safety is an offense under R.C. 2929.22 (A).' State v Kamel (1984), 12 Ohio St. 3d 306,309.
"After thoroughly reviewing the record, we find that once Serena was found in the van appellant acted recklessly, and that he created a substantial risk to the health of Serena. . . By the time she was discovered in the van, she was suffering from heat exhaustion and was 'already pretty sick' . . . However, rather than call 911 or take her to the hospital appellant decided to give her a bath to cool her off. The record shows that at least 20 minutes elapsed between discovering Serena in the van and putting her in the bath."
So Prosecutor White threw the book at Bittner because he didn't seek quick medical attention for a child broiled in a van. A 911 call may have saved him from prison. But White didn't go after Cecilia's mom, who forgot that her daughter was strapped into a Mercedes and couldn't be revived by emergency workers. A 911 call, it seems, made no difference for Cecilia. It made all the difference for her mom.
Again, the appeals court:
(Bittner's) actions undoubtedly created a substantial risk to his daughter's health, which, in this unfortunate case, led to the child's death. Reviewing the evidence in a light mos favorable to the prosecution, we find that a rational trier of fact could have found that the elements of child endangering, including recklessness, were proven beyond a reasonable doubt. Moreover, our review of the evidence fails to persuade us that the jury lost its way and created a manifest miscarriage of justice. We therefore find (Bittner's) convictions are supported by sufficient evidence and are not against the manifest weight of the evidence."
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