Posted on 07/31/2002 5:47:13 PM PDT by Libloather
Man Tried for Friend's Drunkenness
Tue Jul 30, 1:15 PM ET
By JOHN CURRAN, Associated Press Writer
SALEM, N.J. (AP) - A 40-year-old laborer is on trial in New Jersey in a groundbreaking case experts say could clear the way for the prosecution of anyone who lets a drunken driver get behind the wheel.
Kenneth Powell was asleep at home two years ago when police called and asked him to pick up best friend Michael Pangle, who had been arrested for drunken driving after a drinking session in a strip club.
Powell picked up Pangle and took his friend back to his sport utility vehicle, which was parked beside the road where he'd been arrested.
Pangle, 37, drove off into the night. Less than an hour later, his SUV collided with another car, killing him and 22-year-old Navy Ensign John Elliott, who was headed to his mother's birthday party.
Tests revealed Pangle had a 0.26 blood-alcohol content when he died, more than twice the legal limit.
Prosecutors blamed Powell for letting Pangle get behind the wheel and charged him with both deaths. He faces up to 15 years in prison if convicted of manslaughter, vehicular homicide and aggravated assault by auto.
"Kenneth Powell made a series of conscious decisions to set that whole thing in motion, even though he knew better," prosecutor Michael Ostrowski told jurors July 17. "Nobody is here saying he intended anyone to get hurt. But he intended to set that reckless conduct in motion, knowing there was a real risk."
Lawyers for Powell, who has yet to talk publicly about the case against him, contend that State Police bear responsibility for giving Pangle his car keys and giving him directions back to the vehicle.
Holding Powell accountable would allow the prosecution of toll takers, gas station attendants and anyone else who encounters a drunken driver and fails to stop him from driving, defense attorney Carl Roeder said.
The case marks the first time a friend with no direct involvement in a drunken driving accident has been charged for not stopping the driver involved, according to defense attorneys and Mothers Against Drunk Driving officials.
Frank K. Russo, a defense lawyer and former Florida prosecutor, says Powell's fate will hinge on whether witnesses show that Pangle was so obviously drunk when Powell met him at the police station that he should have known his friend posed a threat to other drivers.
"As a third party, to what extent are you obligated to take the keys?" Russo said. "You could be setting yourself up for battery or a disorderly conduct charge if you get into a fight and a neighbor or someone else calls to report it."
Gary Trichter, a lawyer who heads the Houston-based National College of DUI Defense Inc., said he knew of no other case in which a third party like Powell — who hadn't served any alcohol to Pangle and didn't own or operate the vehicle — has been charged.
He said it was wrong to hold Powell accountable when State Police had implicitly given their approval by releasing him and giving him his keys back.
"Let's take this to its logical conclusion. The state, by prosecuting this guy, is saying this guy should have fought him, used physical force to stop him," Trichter said.
The case has already changed New Jersey law. The Legislature passed a bill last year giving police the power to impound the vehicles of drunken drivers for up to 12 hours after their arrest. Similar federal legislation is pending.
"The introduction of (that legislation) has given us hope that John did not die in vain, that he will not be forgotten and that in his name, lives will be saved across the nation," said Elliott's father, William Elliott.
"Kenneth Powell made a series of conscious decisions to set that whole thing in motion, even though he knew better," prosecutor Michael Ostrowski told jurors July 17. "Nobody is here saying he intended anyone to get hurt. But he intended to set that reckless conduct in motion, knowing there was a real risk."
Wrong. Michael Pangle set the whole thing in motion when he chose to get drunk and drive.
"...police called and asked him [Powell] to pick up best friend Michael Pangle, who had been arrested for drunken driving..."
Pangle was the first cause. That cause was drunk driving. The effect was that the police arrested Pangle for drunk driving. The second cause was the police negligence in not ensuring public safety by escorting Pangle to his home. Instead they let Pangel go on his own recognizance.
The courts have routinely ruled that law enforcement officers can't be held accountable for failure to protect victims. The courts have been unanimous in their decision All stating that that law enforcement officers are not compelled by law to protect any citizens.
He said it was wrong to hold Powell accountable when State Police had implicitly given their approval by releasing him and giving him his keys back.
Couldn't have said it better myself.
Pangle was twice responsible for driving while drunk. The first time he got arrested, the second time he killed himself and another person. In the short interim between the two incidents the police failed to protect the citizens. Which, as the courts have ruled, is not their responsibility anyways.
And now the court/jury is in a position to rule whether a citizen can be held accountable for not protecting citizens!?
If the charge becomes negligence the first party to be negligent was Michael Pangle. The second party to be negligent was the police and the third negligent party was Powell. Are citizens compelled by law to protect other citizens? Are law enforcement officers not also citizens that would be compelled by the same law to protect citizens? If their is such a law, the courts have ruled unanimously that law enforcement officers are above the law.
Being above the law is nothing new for judges presiding over jury trials.
Who sets the model example of the courts? Judges.
Discover How Judges that Preside
Over Jury Trials Routinely Violate the Constitution.
"As a practical matter, I don't know how this is different from the beginning of a trial, when you tell the jurors you have to follow the law as I state it," Warren said. "I just won't give [the disapproved instruction]." California Supreme Court Don't Tell Jurors to Rat on Each Other
The above statement in bold told to jurors, since 1894 has been in violation of each Defendant's Sixth Amendment right to an impartial jury. The Sixth Amendment reads:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed..."
Prior to 1894 judges routinely told jurors that they were to judge the facts and the law. ...And the law. For the defendant, a jury that judges the law upholds the defendant's right to a jury that is not partial for the government. It is the defendant's right to have a jury that judges the law as well as the facts.
To judge all facts in the case includes judging the most critical fact -- that a person was charged with breaking a certain and specific law or laws. Without that there can be no case to take to trial. It is the primary and most critical fact for which the government makes its case. Pressing criminal charges against a person gets the process in motion. The reason it must be the prosecution that gets the process started is because the suspect/defendant is innocent. Innocent until proven guilty in court.
Thus it was not the person's/defendant's actions that initiated force against any person or their property. For, until the defendant has received the verdict it is not known whether the arresting law enforcement officer acted in self-defense in correctly upholding the law or unknowingly acted with initiation of force while attempting to uphold the law. That is, the LEO making the arrest had reason to believe the person broke the law and then the DA (district attorney) pressed charges against the suspect. Yet the LEO/DA/government don't know for certain that the suspect/defendant broke the law. That detail will be answered by the jury.
What does it mean when the jury's verdict is an acquittal? It means the charges against the defendant were in error. That is, the defendant never broke the law he was charged with breaking. The law has been judged by the jury to have been wrongfully charged against the defendant. The jury says, "No. The law does not apply to the defendant breaking it. The law only applies in that the defendant abided the law." The law has been deemed to have been wrongfully applied -- the law does not apply to the defendant.
Guess what? That's what jury nullification is -- the jury discovers the same thing. That is, with jury nullification the jury decides that the law does not apply to the defendant -- the law had been wrongfully applied.
As per the Sixth Amendment the defendant has the right to an impartial trial wherein the jury judges the law. For there is no way the jury can avoid judging the law. The jury has only two choices, 1) the law was correctly applied/charged against the defendant, or 2) the law was wrongfully applied/charged against the defendant.
It is each judge's job responsibility to ensure that the defendant's Sixth Amendment rights are protected. The primary key to each trial is the laws that the defendant is charged to have violated. It is by way of the facts presented by the prosecution and the defense during the trial that the primary key -- law as charged -- is judged to have been correct or in error. The facts presented by the prosecution and defense are secondary. That's the nature of cause and effect relationships. When one thing cannot exist without the other first being present the first thing is primary and the effect of that is secondary.
It is accepted that the defendant acted in a manner that appeared to have broken the law and was one factor in the LEO's/DA's/government's judgment that the person's actions violated the law. It cannot be misconstrued that the defendant's actions are the primary cause. For the defendant is deemed innocent and only suspected to have broken the law. The primary cause is the LEO's/DA's/government's judgment to set the court process in motion -- not the suspect's actions.
As per the Sixth Amendment an impartial jury favors neither the government nor the defendant.
Each jury that each judge has failed to inform the jury that they are to judge the law as well as the facts as they pertain to the case/trial has caused each of those juries to favor the government over the defendant.
Since 1894 each judge that has presided over jury trials has routinely violated the constitution. Concurrently, each defendant in each of those trials has had his or her Sixth Amendment right to an impartial jury violated. ....Violated by the judge presiding over the trial.
"At issue in People v. Engelman, 02 C.D.O.S. 6411, was California Jury Instruction 17.41.1, which judges give before deliberations. It directs jurors to advise the court if they suspect someone is refusing to discuss the evidence or plans to disregard the law." California Supreme Court Don't Tell Jurors to Rat on Each Other
As shown earlier the jury cannot disregard the law for it is the law that is the primary key being judged.
"Unless jurors are informed of their solemn responsibility to report misconduct, I predict that many judgments will be reversed simply because the trial judge never had the opportunity to cure the problem." California Supreme Court Don't Tell Jurors to Rat on Each Other
That is absurdly trivial compared to the fact that virtually every judge presiding over jury trials routinely violates defendants' Sixth Amendment rights. That's a valid reason why many judgments will be reversed. ...Reversed simply because the judge violated the defendant's Sixth Amendment right to an impartial jury when he or she instructed the jury to favor the government over the defendant. The misconduct originates with the judges violation of each defendant's right to an impartial jury.
Not a good anaolgy. The man is not being prosecuted because he failed to stop him from driving but because he assisted and aided in the drunk driving by taking the drunk back to his car.
And my desires are what - exactly... (Say, have you posted your age - yet?)
What if this guy had just called a cab and had the cab take him back to his car, would the cab driver be charged?
Well, during my more heavy drinking days, I've tipped 15-20 beers back, was staggering, left my car at the place, and walked home, picking it up the next day.
So they are clearheaded enough to know NOT to drive home.
Ooooooooookay.
I dunno. If you intentionally set out to get someone drunk (guys, you are obviously exempt), see them sit behind the wheel of a car, give them the keys, watch them start the car and drive away while learning later that the driver killed someone else - are you not somewhat responsible for the death of the dead?
To pick it up the next day. Or, for some one else to pick it up.
Bar tenders are often charged when they fadcilitate a drunk getting too drunk then driving.
What kind of idiot takes a drunk to his car to drive home or anywhere else. This man deserves to go to prison. The poo ensign has no chance to do anything because of this man's negligence.
The police could have eaisily charged him even had his "friend" survived.
Would they still be as responsible after, say, 30 drinks?
Actually, being under the influence during the comission of a crime is often used as a mitigating circumstance in one's defense. It normally won't result in an acquittal but often the penalty is less than if the crime was commited sober.
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