A Yolo County jury convicted 78-year-old Donna McClure of West Sacramento of vehicular manslaughter with gross negligence. Ms. McClure had driven her vehicle without a valid license and had failed to yield to a pedestrian in the parking lot of a West Sacramento Raley’s store on October 1, 2009.
According to the press release, witnesses and video surveillance indicated that the victim, Jewell Mattoss, “walked out of the Raley’s market shortly after 10:00 a.m. and was halfway through the crosswalk when the defendant ran into her with her car.”
“Ms. McClure failed to stop until Ms. Mattos was carried 20 to 30 feet. Ms. Mattos suffered serious injuries and died the following day at U.C. Davis Medical Center. The evidence showed that nothing had obstructed Ms. McClure’s view and that the [sic] she had more than adequate opportunity to brake before the crosswalk.”
Ms. McClure admitted to police that she knew of the license suspension. There was also testimony that nothing prevented McClure’s passenger from driving the car that day. When asked why she drove on that day, Ms. McClure told police that she had too much pride to ask her friends for rides.
In his closing statement, Mr. Couzens indicated that Ms. McClure knew that her license was suspended due to medical reasons, including alcoholism. There had been a medical review in 2007 in which that decision was enforced.
She had been told it was unsafe for her to drive, due to the alcohol issues. Moreover, Mr. Couzens argued that the evidence showing that she was an unsafe driver also shows that what happened on October 1, 2009 was a logical result.
The video, Mr. Couzens argued, showed that the victim had not merely stepped off the curb in front of the car, the victim was in the middle of the roadway when she was struck.
Mr. Couzens argued that Ms. McClure knew the risks, and something tragic happened.
The video stills show that Ms. McClure could not react to a sudden situation. Witnesses, in fact, testified that she hit the accelerator after the accident. Mr. Couzens argued that there was no obstructed view and that Ms. McClure was driving too fast for a parking lot.
As reported in the press release, many friends and family of Ms. Mattos attended the trial and were present when the jury verdict was read. “We are both thrilled and grateful by the outcome of the trial,” was a comment from Ms. Mattos’ daughter, Pamela Mendelsohn.
“We are thankful to the Yolo County DA’s office,” continued Ms. Mendelsohn. “Our victim advocate remained committed to our family through these last two years, and the prosecutor did a remarkable job of setting forth the facts and the truth to the jury to be sure justice was served.”
Defense Attorney Joseph Welch called this a tragic accident. As Judge Fall informed the jury, the mere fact that Ms. McClure was breaking the law by driving on a suspended driver’s license is not sufficient to prove gross negligence. Instead, the prosecution needed to prove that she knew that it was unsafe for her to drive.
Mr. Welch called this a blatant overreach by the prosecution’s office. And he argued that Ms. McClure, in fact, did only one thing wrong that day, that she did what many of us do, she drove while inattentive.
He argued that following the suspension of her license, she changed her life around. She stopped drinking. She cleaned her life up. She got approval from a doctor to resume driving and was in the process of getting her license back. A doctor said that she was physically able to drive.
He acknowledged that she broke the law while driving on a suspended license – which was the second charged offense, a misdemeanor, along with a third charged offense of failure to yield to a pedestrian, an infraction.
Rather than gross negligence, he called it ordinary carelessness.
He said that she was traveling at parking lot speed. She turned to talk to a passenger and the victim walked, as he showed in the video, from the store into the sunlight, which would make it more difficult for an inattentive individual to stop. In short, she never saw the victim until it was too late.
Mr. Welch pointed out that while witnesses said that she accelerated after the impact, if that happened it was momentary, because she came to a complete stop at 15 feet after impact.
He argued that she reacted the same way anyone would have if they had hit this person.
Mr. Welch dismissed as speculation that she was taking Tylenol with codeine that impaired her judgment.
He also pointed out that in all his years of practice, he has never seen a client more remorseful. After the accident she stood there and sobbed uncontrollably until the police showed up.
He argued that gross negligence goes too far, and argued that at most this was misdemeanor negligence.
In his rebuttal, Mr. Couzens argued that the defendant’s doctor, Dr. Rojas, had no good reason to issue the opinion that Ms. McClure was physically able to drive.
He also disputed the notion that Ms. McClure reacted like we all would have, by hitting the gas, and this was evidence that she was an unsafe driver.
The case goes back to Judge Fall on October 14, 2011. At that time, the judge will sentence Ms. McClure. She faces sentencing ranging from probation to six years in state prison.
—David M. Greenwald reporting
[quote][/quote] She got approval from a doctor to resume driving and was in the process of getting her license back. A doctor said that she was physically able to drive
Im kind of scared that she is still driving. Alcohol may have been one factor but her age is definetely a factor. Eye sight and reflexes could be a factor. Still, scary!
An elderly woman died in Davis not so long ago, in large part because the family didn’t convince her to give up her car keys. Of course, the CC blamed inadequate design of the roadway and spent tens of thousands of dollars to “ameliorate” the situation. However, everyone should understand that it is rare where design can fully compensate for stupidity &/or incompetence.
[quote]Mr. Couzens indicated that Ms. McClure knew that her license was suspended due to medical reasons including [b]his[/b] alcoholism.[/quote]Are you insinuating that Mr. Couzens has a problem?
hpierce, I just got to this article – sorry I was not up earlier to start the proofreading.
try refreshing the page – but I am running through the article a 2nd time…
hpierce
David has frequently much more than insinuated that Mr. Couzens has a problem. Just not this particular one !
And, I hate to say this because I feel it will not be too many years before I reach this age range, but I believe that it is incumbent upon family members, friends, neighbors, church members, to start raising the awareness of the hazards of driving while elderly. While many retain their ability to drive safely into advanced age, many others do not. Vision, hearing, and reflexes do worsen with age even in those whose cognitive processes remain sharp. For those who are suspected to be dangerous or will not voluntarily give up their keys, the keys should be confiscated, or if not feasible, the individual should be reported to the DMV or the police. This sometimes seems cruel, bbut in reality can be lifesaving both for the elderly driver and for whomever is in their path.
Typos can be fun can’t they.
This is a tough call for me. The person shouldn’t have driven the vehicle particularly due to the license suspension. However, it is not altogether clear that she was unsafe to drive. I would have gone with the misdo negligence in this one, gross negligence I save for the 20 year old hot rodder tearing through the parking lot at breakneck speeds. The woman will most likely get probation in light of her age, her clear remorse, and likely lack of criminal record.
[quote]In his rebuttal, Mr. Couzens argued that the defendant’s doctor, Dr. Rojas, had no good reason to issue the opinion that Ms. McClure was physically able to drive.
He also disputed the notion that Ms. McClure reacted like we all would have, by hitting the gas, and this was evidence that she was an unsafe driver.[/quote]
Mr. Couzens had it exactly right – the doctor had not business declaring this woman fit to drive; and no normal driver would hit the gas instead of the brakes after hitting someone.
[quote]This is a tough call for me. The person shouldn’t have driven the vehicle particularly due to the license suspension.[/quote]
This shouldn’t be a tough call for anyone. Pay attention to what you said in your own article:
[quote]In his closing statement, Mr. Couzens indicated that Ms. McClure knew that her license was suspended due to medical reasons, including alcoholism. There had been a medical review in 2007 in which that decision was enforced. She had been told it was unsafe for her to drive, due to the alcohol issues.[/quote]
The defendant had her license revoked because of medical issues/alcholism. Yet she chose to get behind the wheel, despite the fact that a friend could have driven her where she wanted to go. As a result of her gross negligence, she killed someone. Because she “turned her life around” after the fact is irrelevant to what she did do. The verdict in this case was absolutely the correct one.
From wikipedia:
[quote]California
In the state of California, depending on the degree of recklessness and whether alcohol was involved, a person could be charged with progressively more serious offenses: vehicular manslaughter, vehicular manslaughter while intoxicated, gross vehicular manslaughter while intoxicated, or second-degree murder. In any of these cases, the prosecution must prove that the driver committed some wrongful act (which could be a felony, a misdemeanor, an infraction, or a lawful act that might cause death) and that the wrongful act caused the accident and the death of the victim.[/quote]
The wrongful act in this case was driving despite having a license revoked because the defendant was not fit to drive. She killed someone, which proves the point the revocation of the license was more than justified, as is the verdict in this case. There are no “do-overs” in life. A victim is dead because the defendant willfully chose to disobey the law and drive when she knew she was not fit to drive.
I’m torn on the appropriate sentence, but the charge seems appropriate . After driving a commercial vehicle for 25 years in Northern California and tens of thousands of miles in the other South-western states, I believe that at least half of the drivers (of any age) on our highways are unqualified to be there . For years I have warned my wife and kids that they are most at risk in a motor vehicle ! Unfortunately our work hard, pay taxes and die culture requires that we are always available to go where the work is . Unless you are fortunate enough to have a good public transit system,(That certainly excludes Davis and Sacramento), that means driving a personal vehicle, in the pack with the kindle reading , make-up applying, child disciplining, on the cell phone, dimbulbs, almost all of whom are between 20 and 50 years of age . Exceptions include the senior gentleman in western wear, reading Google maps on his notebook pc in the silver Mercedes 500 on I-80 E bet. Fairfield and Davis earlier this morning . Though I am hardly decrepit, and have a perfect driving record, I would happily sell my car and take public transit for the financial and psychic savings . When I showed the article to my twenty-something daughter she quipped,” Who’d I call for a ride ?” 🙂
EMR
I agree with you that there is no excuse for this woman driving knowing that her license was suspended.
I would take exception to your statement in support of Mr.Couzens assertion that “the doctor had no good reason to issue the opinion that Ms. McClure was physically able to drive.” Without review of her medical record, or calling Dr. Rojas as a witness, we have no idea whether or nor he “had a reason to declare her fit to drive”. Doctors are requested to make this kind of assessment on a regular basis. Two common situations would be certifying that a patient with a seizure disorder was adequately controlled on medication to drive or whether a known alcoholic or drug dependent individual was in remission and qualified to drive.
So while this does not exonerate Ms. McClure, who knew it was not legal for her to drive, she may have been appropriately judged medically fit to drive.
“Mr. Couzens had it exactly right – the doctor had not business declaring this woman fit to drive; and no normal driver would hit the gas instead of the brakes after hitting someone. “
Actually I have seen a few accidents where the person panics and hits the wrong pedal. She obviously did not hit it very far or long – if she did – the video shows no evidence of acceleration and she is stopped within 15 feet of the impact.
In 2008, when our car was the fifth car hit at farmer’s market, the person not only took the corner too fast, but hit the accelerator after impact. It happens.
“The defendant had her license revoked because of medical issues/alcholism. Yet she chose to get behind the wheel, despite the fact that a friend could have driven her where she wanted to go. As a result of her gross negligence, she killed someone”
Actually she didn’t turn her life around after the fact, she had several years of sobriety and there was no trace of alcohol or drugs in her system.
“The wrongful act in this case was driving despite having a license revoked because the defendant was not fit to drive.”
Actually the law states that the wrongful act would have been driving when she knew that she was unable to do so safely. The fact that she had lost her license, is only a symptom of the problem and the jury was instructed that that factor alone was not to be determinative.
The question is whether she was an actual safety risk and she knew it. Given that she had doctors telling her that she was physically able to drive, at the very least calls that into question. That’s wnhy it makes it a tough call. I suspect the jury simplified it down and erred on the side that she had no license, therefore, the reasoning that you used. I’m not sure that is the correct reasoning at least as the judge explained the law to the jury.
[quote]I agree with you that there is no excuse for this woman driving knowing that her license was suspended.
I would take exception to your statement in support of Mr.Couzens assertion that “the doctor had no good reason to issue the opinion that Ms. McClure was physically able to drive.” Without review of her medical record, or calling Dr. Rojas as a witness, we have no idea whether or nor he “had a reason to declare her fit to drive”. Doctors are requested to make this kind of assessment on a regular basis. Two common situations would be certifying that a patient with a seizure disorder was adequately controlled on medication to drive or whether a known alcoholic or drug dependent individual was in remission and qualified to drive.
So while this does not exonerate Ms. McClure, who knew it was not legal for her to drive, she may have been appropriately judged medically fit to drive.[/quote]
I see your point, and concede you may be right on this one.
[quote]The question is whether she was an actual safety risk and she knew it. Given that she had doctors telling her that she was physically able to drive, at the very least calls that into question. That’s wnhy it makes it a tough call. I suspect the jury simplified it down and erred on the side that she had no license, therefore, the reasoning that you used. I’m not sure that is the correct reasoning at least as the judge explained the law to the jury.[/quote]
I believe that is an incorrect analysis. It is up to the DMV to determine if the defendant is fit to drive a car, and not the doctor. The doctor can say he sees no reason why she cannot be retested to return to driving, but that does not mean she is fit to drive. There is no question the DMV would have given the defendant a road test, and probably a pretty rigorous one, after having had her license revoked. My guess is she would have failed the test by a mile (pardon the pun).
[quote]He argued that following the suspension of her license, she changed her life around. She stopped drinking. She cleaned her life up. She got approval from a doctor to resume driving and was in the process of getting her license back. A doctor said that she was physically able to drive.[/quote]
She needed approval from the DMV to drive. The doctor cannot give such approval – he can only recommend that she BE ALLOWED TO TRY to get her license back. Secondly, it is pretty clear the doctor got it wrong as to her ability to drive, even tho the doctor may have gotten it right that from his perspective he could see no reason why she should not be allowed to try for a reinstatement of her license. This is because the doctor did not get in the car w her and actually witness her driving abilities. He knew that the DMV would take care of that end of things.
This woman had a suspended license bc she was unfit to drive. She was well aware she was not supposed to get behind the wheel of a car until and unless she had her license reinstated – by proving her ability to drive safely to the DMV. She knew what she had to do, refused to do it, and someone is dead bc of it. IMO, the charge was exactly right, and the jury got it exactly right. Sentencing is another matter. I honestly don’t know what I would do, and am very glad that is not my job. The situation is tragic for everyone.
Elaine:
If the question is whether or not she had the lawful ability to drive the car, then you are correct, the DMV determines it.
However, that is not the question here, but rather whether she knew she was unsafe to drive the car.
It looks to me as though there are two separate issues here, both of which needed to be fulfilled for Ms. McCure to drive.
1) A doctor, having made a good faith evaluation, would have had to determine that there was no medical contraindication to driving.
2) The DMV would then have to have made the determination that she was capable of driving.
These are two separate although related issues and I cannot see how one could question her not knowing that she should not be driving.
As to the issue of safety, I also see this a little differently. Safety largely depends on the exercise of sound judgement. It is much more than a matter of speed of reflexes and acuity of sight and hearing. In this case, the fact that she chose to drive without a license in a non emergent circumstance would in itself seem to me to be a demonstration of exceedingly poor judgement. And I suspect she knew that before she ever got behind the wheel.
Having said that, I suspect there is no further sanction needed by the state beyond a permanent driving ban.
medwoman:
I feel like I’m not explaining this very well and understand, I am just basing this off of the judge’s instructions.
The second charge is driving on a suspended license, which is a misdemeanor. She is guilty of that.
However, the first is vehicular manslaughter with gross negligence. In order to get that you have to show that she knowingly drove while unsafe. It is not enough to say that she was not allowed to drive, that goes to charge two. It can be used as evidence that she was unsafe to drive as the prosecutor claimed.
The problem is that there were a couple of years that were in between the suspension of the license and the incident. She had by all accounts cleaned herself up over that time. And she had a medical opinion that she was physically able to drive.
She then, without a license gets into a car, apparently drives roughly parking speed, and runs over and kills an individual.
The legal question is whether she knowingly got into that car with the knowledge that she was unsafe to drive. There is evidence to support that, there is evidence to cast doubt on it.
[quote]If the question is whether or not she had the lawful ability to drive the car, then you are correct, the DMV determines it.
However, that is not the question here, but rather whether she knew she was unsafe to drive the car.[/quote]
Again your analysis is completely off. SHE DOES NOT GET TO DECIDE WHETHER IT IS UNSAFE TO DRIVE. THE DMV ALREADY DECIDED THAT, AND ONLY THEY CAN DECIDE WHETHER SHE IS SAFE TO RESUME DRIVING.
[quote]It looks to me as though there are two separate issues here, both of which needed to be fulfilled for Ms. McCure to drive.
1) A doctor, having made a good faith evaluation, would have had to determine that there was no medical contraindication to driving.
2) The DMV would then have to have made the determination that she was capable of driving.
These are two separate although related issues and I cannot see how one could question her not knowing that she should not be driving.
As to the issue of safety, I also see this a little differently. Safety largely depends on the exercise of sound judgement. It is much more than a matter of speed of reflexes and acuity of sight and hearing. In this case, the fact that she chose to drive without a license in a non emergent circumstance would in itself seem to me to be a demonstration of exceedingly poor judgement. And I suspect she knew that before she ever got behind the wheel. [/quote]
This is exactly right. And I will go one step further. My guess is that the defendant got behind the wheel w/o a license bc she knew d_mn well she would not pass any driver test given to her by DMV. The jury got this one exactly right.
As to punishment, she should not get off with any less than serious community service, in which she is forced to tell her story to those enrolled in DUI classes. I would not let her off scott free by any means. It is the very least she can do for what she chose to do in contravention of very sensible laws.
“Again your analysis is completely off. SHE DOES NOT GET TO DECIDE WHETHER IT IS UNSAFE TO DRIVE. THE DMV ALREADY DECIDED THAT, AND ONLY THEY CAN DECIDE WHETHER SHE IS SAFE TO RESUME DRIVING.”
Elaine, as the judge stated in his instructions, the fact that the DMV said she could not drive is not sufficient to prove gross negligence.
[quote]The legal question is whether she knowingly got into that car with the knowledge that she was unsafe to drive.[/quote]
If she “knew” she was safe to drive, then why not take the driving test to get her license reinstated, BEFORE SHE GOT BEHIND THE WHEEL OF THAT CAR?
What she “knew” is that the doctor had said she had no physical impairments that he could determine that would prevent her from RETAKING THE DRIVERS TEST. THE DOCTOR’S STATEMENT WAS NOT A LICENSE TO DRIVE, AND SHE KNEW THAT PERFECTLY WELL. SHE WAS WELL AWARE THAT SHE WAS REQUIRED TO TAKE A DRIVING TEST TO PROVE SHE WAS CAPABLE OF DRIVING AGAIN.
I’m not defending her decision to drive, she should not have without taking a driver’s test.
However, I pulled up the CALCRIM jury instruction on gross negligence:
“Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment.”
A person acts with gross negligence when:
“1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;
AND
2. A reasonable person would have known that acting in that way would create such a risk.”
Having talked to you now, I think both you and the jury make the same assumption, that the suspension and reason given two years prior was reason enough for a reasonable person to know that “driving” would have created such a risk.
The problem is the intervention of the doctor may mitigate some of that, because then in your mind, you have one person saying that you are safe to drive more recently then the people who said you were not.
You are absolutely correct that she should have gone to the DMV and taken the test before driving, but that alone is not enough.
[quote]The problem is the intervention of the doctor may mitigate some of that, because then in your mind, you have one person saying that you are safe to drive more recently then the people who said you were not. [/quote]
No, what the doctor said mitigates nothing. The woman knew perfectly well the doctor does not have the ability to issue drivers’ licenses. She knew in order to prove she was fit to drive, she had to take a driving test. Instead she knowingly decided to get behind the wheel of the car and drive, not knowing herself whether she was fit to drive (she knew this was not her call to make) bc she had not taken the driving test yet. You can bet your sweet bippy she knew she wouldn’t pass that test, and is the reason she flouted the law.
If we accept your legally flawed logic, drivers would get to decide whether they are fit to drive as long as their doctor gave the stamp of approval – in other words doctors would be issuing driver’s licenses w/o driver testing. First of all, that is not the law. The law doesn’t care whether you “think” you are a competent driver, or whether your doctor “thinks” you are a competent driver. Everyone over the age of 16 KNOWS that only the DMV gets to decide whether you are a competent driver, and will test you to find out. In fact, after the age of 70, the DMV can actually force older drivers to take both a written and road test to check to see if the older driver is still competent.
[quote]You are absolutely correct that she should have gone to the DMV and taken the test before driving, but that alone is not enough.
[/quote]
Yes, in the circumstances it is legally enough.
“The woman knew perfectly well the doctor does not have the ability to issue drivers’ licenses.” But that point is still irrelevant, we are not trying to establish legality of her action of driving but rather gross negligence.
“Yes, in the circumstances it is legally enough.”
No, Judge Fall explicitly said that was not enough.
Elaine
I think that you are going to far in assuming that the reason she didn’t go to the DMV is because she knew she wouldn’t pass the test.
There are many other possible reasons for not going to the DMV. The general unpleasantness of the process, wait times even with appointments, nervousness about test taking in general, laziness. I really don’t think that we can assume that we, at the risk of our wagered bippies, know what was in her head.
But I do think you got it right about community service !
[quote]There are many other possible reasons for not going to the DMV. The general unpleasantness of the process, wait times even with appointments, nervousness about test taking in general, laziness. I really don’t think that we can assume that we, at the risk of our wagered bippies, know what was in her head. [/quote]
It matters not one whit “why” she chose to not return to the DMV and take the test (remember I said it was just a guess on my part – but having much experience in this area bc of my work w the CHP, I suspect my educated guess is spot on). She KNEW that was the requirement.
[quote]”Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment.”
A person acts with gross negligence when:
“1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;
AND
2. A reasonable person would have known that acting in that way would create such a risk.” [/quote]
A reasonable person, who had her license revoked for alcholism/medical issues, would know they had to return to the DMV and get retested to be sure their driving capabilities were up to par. Everyone over the age of 15 knows that the DMV is the ultimate arbiter of whether one’s driving skills are competent. No reasonable person would assume their doctor can issue a drivers’ license.
[quote]Elaine, as the judge stated in his instructions, the fact that the DMV said she could not drive is not sufficient to prove gross negligence.
No, Judge Fall explicitly said that was not enough.[/quote]
UNDER THE CIRCUMSTANCES, IT WAS ENOUGH. SHE KNEW WHAT THE SYSTEM WAS, WHAT SHE HAD TO DO, AND THAT SHE DID NOT HAVE THE RIGHT TO DETERMINE FOR HERSELF WHETHER SHE WAS COMPETENT TO DRIVE. The jury thought this way, the judge thought so too…
[i][quote]”She cleaned her life up. She got approval from a doctor to resume driving and was in the process of getting her license back. A doctor said that she was physically able to drive….Mr. Welch dismissed as speculation that she was taking Tylenol with codeine that impaired her judgment. He also pointed out that in all his years of practice, he has never seen a client more remorseful. After the accident she stood there and sobbed uncontrollably until the police showed up.”[/quote][/i] Who testified that she stopped drinking and cleaned herself up? Did Ms.McClure testify at all?
Who testified that ‘she got approval from a doctor to resume driving’ or that she was ?
Who testified that she was taking codeine?
Did Mr. Welch testify as a character witness? Was he really at the scene quickly enough to compare her behavior to that of all other clients “in all his years of practice.” (Talk about an ambulance chaser!) Or maybe he just was testifying as an expert evaluator of still surveillance photography?
I’m sure you agree it’s important to keep evidence separate from the bs that is spread during opening and closing arguments. Judges make this caution clear to every jury. It’s not really fair to criticize a jury, even if you’ve sat through an entire trial, if you’re not making this distinction clear in your reporting.
The DA the victim was carried 20-30 feet before Ms. McClure stopped. The defense attorney says only 15 feet. This seems an important consideration for the jury. What evidence did either side offer? Seems as though this could have been resolved by the surveillance photography. You believe the 15 feet version, why?
I think I understand the distinction you’re making about requiring the jury to find that Ms. McClure KNEW that it would be unsafe (reckless?) for her to drive. If the reasons for pulling her license were her physical conditions, a doctor signing off that she no longer suffered those conditions certainly could give her reason to believe she was able (as opposed to authorized).
But, again, I’d like to know what evidence was provided for any of these claims. The defendant could have testified at to what she thought, providing the added benefit of displaying the best remorse in decades to the jury. Did the doctor fill out DMV forms, certifying her medical capabilities. I’m wondering if the judge’s instruction was as clear-cut and simple as you suggest; is it possible that they were looking at something else that tipped their decision to gross negligence?
“Who testified that she stopped drinking and cleaned herself up? “
Dr. Rojas
“Did Ms.McClure testify at all? “
I do not believe she did.
“Who testified that ‘she got approval from a doctor to resume driving’ or that she was ? “
Dr. Rojas
“Who testified that she was taking codeine? “
No one.
“Did Mr. Welch testify as a character witness? Was he really at the scene quickly enough to compare her behavior to that of all other clients “in all his years of practice.” (Talk about an ambulance chaser!) Or maybe he just was testifying as an expert evaluator of still surveillance photography? “
Mr. Welch was her attorney. He’s a criminal defense attorney not a civil litigator.
“It’s not really fair to criticize a jury, even if you’ve sat through an entire trial, if you’re not making this distinction clear in your reporting. “
I don’t criticize the jury at all, I think it was a tough call either way and I understand why they voted as she did.
“The DA the victim was carried 20-30 feet before Ms. McClure stopped. The defense attorney says only 15 feet. This seems an important consideration for the jury. What evidence did either side offer? Seems as though this could have been resolved by the surveillance photography. You believe the 15 feet version, why? “
There is a video, I think 15 feet is closer than the 20 to 30 feet that the DA claimed.
“I think I understand the distinction you’re making about requiring the jury to find that Ms. McClure KNEW that it would be unsafe (reckless?) for her to drive.”
That was the jury instruction from the Judge.
“If the reasons for pulling her license were her physical conditions, a doctor signing off that she no longer suffered those conditions certainly could give her reason to believe she was able (as opposed to authorized). “
That’s the point I was trying to make to Elaine. That’s how I understand the law as both the judge and lawyers explained it.
“But, again, I’d like to know what evidence was provided for any of these claims. The defendant could have testified at to what she thought, providing the added benefit of displaying the best remorse in decades to the jury. Did the doctor fill out DMV forms, certifying her medical capabilities. I’m wondering if the judge’s instruction was as clear-cut and simple as you suggest; is it possible that they were looking at something else that tipped their decision to gross negligence? “
As I have said, the evidence that her lawyer presented through Dr. Rojas is that she was physically able to drive, sober for two years, not suffering from alcoholic dimentia.
The evidence the prosecutor presented was that she went through a process two years prior which she determined that she was unsafe to drive and Dr. Rojas was not the in the position to say otherwise.
The prosecutor argued that it was 20 to 30 feet, that she hit the gas rather than the brake, that she was travelling too fast, and it was a clear view at the pedestrian. The defense argued that it was 15 feet, that you cannot see on the video the car actually accelerate, that she was driving parking lot speed, and that the pedestrian came out of the shadows.
I really believe that in the end, it was too tough a call and that the jury reasoned as Elaine did that the DMV was the licensing agency not the doctor and therefore until they allowed her to drive, a reasonable person would know that they were unsafe.
Like I said, it was a horrible accidence and I can’t blame the jury for their verdict, I just see it a little differently.
[quote]I really believe that in the end, it was too tough a call and that the jury reasoned as Elaine did that the DMV was the licensing agency not the doctor and therefore until they allowed her to drive, a reasonable person would know that they were unsafe. [/quote]
You left out one very crucial point. Why didn’t the woman take the steps to get her driver’s license reinstated if she “knew” she was safe to drive? That is key. The jury is free to infer, from her failure to return to the DMV for license reinstatement, that she was afraid she would be judged incompetent to drive. In other words, she did not really “know” or even thought she “knew” she was safe to drive.
Another critical point you are missing is that the defendant knew perfectly well that the doctor, by signing off on paperwork that permitted her to be retested for reinstatement of the license, was not telling her she now had the “right to drive”. All he was telling her was that she had the “right to try and get her license reinstated”. There is a huge difference between the two.
These are legal but important “nuances” which resulted in the correct verdict that came down from the jury, and the judge agreed.
[quote]Like I said, it was a horrible accidence and I can’t blame the jury for their verdict, I just see it a little differently. [/quote]
You are certainly free to have your opinion, but your legal analysis of this case was incorrect when it came to the word “knew”. I know this has been a frustrating discussion, but this is part and parcel of the legal world and the criminal justice system. Crucial decisions are made based on a single word and its meaning. In law, you cannot take the word “knew” in its normal context, but have to get at its legal meaning, which may be entirely different. You also have to apply the reasonable prudent person (RPP) standard – and this woman’s judgment did not even come close to meeting the RPP standard.
So while you opine that this woman “thought” she was competent to drive, you are taking the defense’s word for it, w/o getting at the legal meaning of the word did she “know” she was competent to drive. She did not, based on the legal analysis above. Secondly, I would argue that I have doubt she even “thought” she was legally competent to drive, since she did not take the steps necessary to have her license reinstated. The jury can infer that she failed to do so bc she was afraid of failing the test. And based on what actually happened (the killing of the victim), I very much doubt this woman would have passed a driver’s test, or even the written test. And my hope is the doctor is having second thoughts about signing off on paperwork for people like this.
Elaine:
“Why didn’t the woman take the steps to get her driver’s license reinstated if she “knew” she was safe to drive?”
I don’t know what steps you had taken towards getting her license. Again, you keep ignoring the fact that the judge only allowed the fact that she did not have license for limited purposes.
“The jury is free to infer, from her failure to return to the DMV for license reinstatement, that she was afraid she would be judged incompetent to drive.”
I’m not sure that they are free to infer that.
“In other words, she did not really “know” or even thought she “knew” she was safe to drive.”
But now you are reversing the burden. The prosecution had the burden of showing that she knew she was unsafe to drive, she did not have to prove she was safe. That’s why the lack of a license was not enough.
I do not understand the law here. To me anybody who did what this woman did should face the same charges, not even considering age, suspended license and prior warnings about not driving. The important issues are-
happened in a parking lot – where you have to pay attention
victim in a cross walk – again you have to pay extra attention
happened in the middle of the day – too late for sun to be in the eyes
nothing impeding visability
victim in middle of cross walk – he did not step out in front of the car
victim is dragged and killed (double bad)
Not paying attention under the circumstances was clearly a case of negligent driving – there is no excuse for what she did.
[quote][i]”I’m sure you agree it’s important to keep evidence separate from the bs that is spread during opening and closing arguments. Judges make this caution clear to every jury. It’s not really fair to criticize a jury, even if you’ve sat through an entire trial, if you’re not making this distinction clear in your reporting.”
“I don’t criticize the jury at all…”[/i][/quote]Actually, you did:[quote]”I suspect the jury simplified it down and erred on the side that she had no license, therefore, the reasoning that you (Elaine) used.”[/quote]But, back to my point. Wouldn’t to be better to distinguish for your readers what’s testimony or otherwise is evidence vs. bs? Since you were at the trial–you were at all of this one, right?–it would be easy separate out the different trial aspects. We can’t tell how to fairly weigh all your comments without more help.
I’m still wondering how Dr. Rojas played this critical role in misleading a patient to believe it was safe for her to be out driving without a license killing people? Did the doctor fill out official state forms? How long before the fatal event did the doctor sign off on her health?
Was she driving to DMV to get her license reinstated when the accident happened? If not, how long had she been driving illegally? Had she been back to the doctor since the driving “approval”? Is there a possible civil case against the doctor?
“Not paying attention under the circumstances was clearly a case of negligent driving – there is no excuse for what she did.”
That would be negligent driving, but as I read the law, ordinary negligence or a misdemeanor. You have to do something extraordinary before it becomes gross negligence, that’s what the discussion is based on here.
[quote]I’m still wondering how Dr. Rojas played this critical role in misleading a patient to believe it was safe for her to be out driving without a license killing people? Did the doctor fill out official state forms? How long before the fatal event did the doctor sign off on her health? [/quote]
The doctor very likely did not mislead the patient. All he did was sign the paperwork that said there was no reason he could keep her from trying to get her license back through the DMV. I do not believe this woman somehow “thought” or “knew” the doctor had given her permission to drive. She knew full well she needed to go to the DMV for a driving to test to get her license reinstated.
[quote]I don’t know what steps you had taken towards getting her license. Again, you keep ignoring the fact that the judge only allowed the fact that she did not have license for limited purposes. [/quote]
Exactly, she did not go back and get her license reinstated, which she “knew” was required to prove she was competent to drive. THE DEFENDANT DOES NOT GET TO DECIDE WHETHER SHE CAN DRIVE, AND SHE “KNEW” THAT.
[quote]ERM: “The jury is free to infer, from her failure to return to the DMV for license reinstatement, that she was afraid she would be judged incompetent to drive.”
DMG: I’m not sure that they are free to infer that. [/quote]
They most certainly and properly and legally are free to infer that her failure to return to the DMV for license reinstatement was an indication she was afraid she would not pass the driving test.
[quote]ERM: “In other words, she did not really “know” or even thought she “knew” she was safe to drive.”
DMG: But now you are reversing the burden. The prosecution had the burden of showing that she knew she was unsafe to drive, she did not have to prove she was safe. That’s why the lack of a license was not enough. [/quote]
You are confusing burden of proof with inference of evidence. The jury is perfectly free to infer, that bc she failed to make the effort to get her license reinstated, she did not “know” for sure she was safe to drive. She also was well aware doctors do not issue drivers licenses, and cannot issue such licenses. She “knew” the only way she could be sure she was safe to drive was to return to the DMV and take a driving test, that she could not substitute her judgment for that of the DMV.
Furthermore, there was more evidence than “lack of a license”. There was no evidence she made any attempt to have her license reinstated. There was no evidence the doctor told her she could now drive. There was no evidence she believed the doctor’s okay was a license to drive. (My guess is there is a disclaimer on the paperwork about the need for the patient to go to the DMV if the patient is given a copy.)
Again we go back the issue of what this woman “knew”. She “knew” she did not have a license to drive. She “knew” it had been suspended bc she had been unfit to drive. She “knew” her doctor signed paperwork that stated she now could attempt to have her driver’s license reinstated through the DMV. She “knew”, as any RPP would, that doctors do not issue licenses to drive cars, the DMV does. She “knew” the only way to be certain she was now competent to drive was to take a driving test. Yet she engaged in gross negligence in refusing to take that driving test, chose to drive w/o a license on the hope and prayer she perhaps was competent enough to drive to “get by”, and the hope and prayer she would not get caught driving w/o a license. Her behavior was not that of a RPP.
In short, gross negligence was the absolutely correct call in this case…