Posted on by Stephen Tuck

In God’s name, why?

Matthew Tirado suffered from severe intellectual disabilities and autism  At the age of 17 years, he was 5’9″ tall but weighed only 84 pounds (38 kgs).  His 34 year old mother* had (apparently to prevent him stealing food) screwed all of the cupboards closed and locked the refrigerator.  So severe were the restrictions that at the end the Connecticut teenager was reduced to foraging in the rubbish for food and to consuming oils and condiments.  On 14 February 2017 he died of fatal child abuse syndrome with dehydration and malnutrition.  His mother took no steps to secure medical help for him.  She was charged with first degree manslaughter.

The 2005 Connecticut Code §53a-55 relevantly provides that

A person is guilty of manslaughter in the first degree when … under circumstances evincing an extreme indifference to human life, [s]he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

The defendant pleaded guilty in the Hartford Superior Court.  Her lawyer noted that she was herself intellectually limited and had grown up in circumstances of neglect.  Judge Baldini noted that the defendant had “failed to provide her son the basic necessities of life”.  Painfully, she observed that “Ms Tirado’s intellectual limitations and becoming a parent at a very young age coupled with her son’s significant cognitive impairments created a perfect storm for Matthew’s untimely death”

Pursuant to a plea agreement the Court sentenced her to 17 years imprisonment, six years of which was suspended, with five years probation.

State v Tirado (2018), NY Times, 5 June 2018; Hartford Courant, 5 June 2018.

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* Alert readers will note the age difference.  Matthew’s mother was impregnated at the age of 15 by then-40 year old Pedro Gomez.  In subsequent news reports, Gomez claimed to be upset at Matthew’s fate despite having left the defendant to raise her child as a single mother.  My views on that point are not fit to be put in writing.

Posted on by Stephen Tuck

Crimes on the Rails (part 2)

A case out of Pennsylvania bookends with the case of R v Harding (2018) about which I wrote the other day.

Amtrak
Image from here

On 12 May 2015 Brandon Bostian was the engineer on a train from Washington to New York.  The train entered a bend in the line at 106 mph (170 kph).  This was more than double the speed limit.  The train derailed, injuring 150 passengers and killing eight.  A government investigation found that Bostian was not affected by alcohol or drugs and was not using a cellphone.  It concluded that he had lost his bearings while distracted by operational radio communications.

The family of one of the deceased brought a private prosecution against Bostian for (inter alia) involuntary manslaughter.  Pennsylvania law states that –

A person is guilty of involuntary manslaughter when as a direct result of … the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

The charges were dismissed by the Philadelphia Municipal Court.  The Attorney-General appealed to the Court of Common Pleas.  On 6 February 2018 Lewis J reversed the Municipal Court’s decision, finding that there was sufficient evidence for Bostian to be presented for trial.  It appears a trial date has not yet been set.

Commonwealth v Bostian (2018), Philadelphia Inquirer, 6 February 2018 and Register Citizen (Torrington, CT), 6  February 2018.

Posted on by Stephen Tuck

Don’t treat her like that

The law has been aware of the problem of elder abuse for several years. A case from Florida suggests that this concern has not yet reached the Bench

Karen Passmore died on the afternoon of 6 August 2015. She was aged 57 years. She had been dependent on others to care for her since suffering a stroke in 1993. Her daughter, Jackie Passmore, had been responsible for her care following the death of Karen’s husband Bill in 2014.

J Passmore
Jackie Passmore (Image from here)

At the time of her death Karen weighed 58 pounds (about 26 kilos). According to the arrest record of Santa Rosa County Sherriff’s Office she was found in a room which –

smelled of trash and rotting flesh. There were gnats swarming through out the room around old food and bags of soiled adult diapers. The decedent, Karen Passmore, was found to be extremely emaciated, filthy, and having numerous pressureulcers (bed sores). The worst of the pressure ulcers were infected and gangrenous. One of the wounds appeared to have been dressed using disposable shop towels and painter’s tape. It was immediately apparent that the decedent had critically needed medical care.

The record notes that some of the pressure ulcers had eaten away to the underlying bone*.

Jackie Passmore was charged with aggravated manslaughter of a disabled adult –

A person who causes the death of any elderly person or disabled adult by culpable negligence … commits aggravated manslaughter of an elderly person or disabled adult, a felony of the first degree….

She was convicted by a jury in the Santa Rosa County Circuit Court. Despite a facing possible maximum term of imprisonment of thirty years, it appears she was not given a custodial sentence (although it seems she was detained while the charges were pending).

State v Passmore (2017), Northwest Florida Daily News, 4 August 2017

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* Readers in Commonwealth jurisdictions will note the parallels with R v Stone and Dobinson [1977] 1 QB 354.

Posted on by Stephen Tuck

State v Saad (2015) H&FLR 2015-29

State of Michigan v Bassel Abdul-Amir Saad (2015) H&FLR 2015-29

Wayne County Circuit Court (Michigan)

13 March 2015

Coram: Judge Cameron

Appearing for the Prosecution: Erika Tusar (of Wayne County Prosecutor’s Office).
Appearing for the Defendant: Cyril Hall (of Law Office of Cyril C. Hall, PC)

Catchwords: Michigan – soccer – referee – assault – death – homicide – manslaughter – sentence

Facts: The defendant, a 36-year-old Lebanese national, was playing in a recreational soccer match at Livonia on 29 June 2014.  The referee, John Bieniewicz, issued him with a red card, ejecting him from the game.  The defendant lost his temper and punched the referee, causing fatal injuries.

The accused was charged with second degree murder and pleaded guilty to involuntary manslaughter.  His history included assaulting another soccer player during a match in 2005.

Held: Sentencing the defendant to fifteen years imprisonment with a minimum term of eight years –

1. That the defendant was an example of what the community considered wrong with escalating violence in sports. His offence was “a childish, senseless act of taking another man’s life with no excuse or justification other than dealing with rage that [he was] unable to contain” (1).

2. That the defendant pay $9,265 restitution to the deceased’s family in respect of funeral expenses.

Note: It is possible that the defendant’s potential deportation following his term of imprisonment may have been a factor in the sentence imposed.

Judgment

The court’s case record (including a summary of the sentence) is available here.  This report also used information contained in reports published in the Detroit News of 20 February 2015, the Detroit Free Press of 13 March 2015, the New York Daily News of 13 March 2015, USA Today of 13 March 2015, and reported on NBC News on 13 March 2015, on CBS News on 13 March 2015 and on WXYZ Detroit on 13 March 2015.

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(1) Cf the sentencing remarks in DPP v Ryan (2007) H&FLR 2014-49.

Posted on by Stephen Tuck

French Republic v A Firefighter (2014) H&FLR 2015-11

French Republic v A Firefighter (2014) H&FLR 2015-11

Amiens Criminal Court

11 December 2014

Coram: Not identified.

Appearing for the Prosecution: Not identified.
Appearing for the Defendant: Not identified.

Catchwords: France – criminal law – emergency services – road accident – manslaughter – emergency

Facts: The accused was a firefighter with 33 years experience and, in particular, 10 years experience driving under emergency conditions.  On 6 October 2011 at around 10:00pm he was driving a tanker in a built-up area to the scene of a gas leak.  It was agreed that the driver had been complying with all applicable safety regulations when he passed through a red light with flashing lights and sirens activated.  Despite this, the truck collided with a scooter which entered the intersection pursuant to a green light.  The scooter driver was killed in the collision.  The driver was charged with “homicide involontaire” (≈ manslaughter).

The accused’s evidence was that he had slowed the truck, that he had not needed to speed as he had not yet been given the precise address of the gas leak, and that the scooter had entered the intersection at high speed.

Held: Convicting the driver, that the Court was not convinced that the gas leak was so urgent as to require driving under emergency conditions and disregarding the red light.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the newspapers Le Figaro of 22 December 2014, Courrier Picard of 6 November 2014 and 21 December 2014, Libération of 22 December 2014, an undated report in Pompier Magazine, and the account of television channel France3 of 22 December 2014.

Note: the accused has announced his intention to appeal.

Comment: This case has obvious relevance from a fitness perspective, noting that the scooter driver could equally have been a runner, cyclist or equestrian.  It should be noted that the court’s rationale – that it was able to second-guess the driver’s assessment of the situation, that it had done so and found it wanting – has been deduced second-hand from a comment made on the case by the union representing firefighters.  That said, it is the only variable which would explain the driver’s conviction in light of the other evidence.

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Posted on by Stephen Tuck

X v French Republic (2007) H&FLR 2014-56

Dr Eric X v French Republic (2007) H&FLR 2014-56

Court of Cassation (France)

5 June 2007

Coram: Cotte P, Blondet and Farge (conseillers)

Appearing for the Appellant: Didier Le Prado and Jean-Jacques Gatineau
Appearing for the Respondent: Francis Fréchède (Public Prosecutor)

Catchwords: France – criminal law – doctor – surgery – obese patient – pulmonary embolism – death – manslaughter – compensation

Facts: The appellant was a surgeon specialising in plastic and reconstructive surgery.  On 13 January 2000 he performed an abdominoplasty on an obese 56 year old woman patient in order to remove excess skin and fatty tissue.  In the course of the surgery the patient developed a pulmonary embolism which caused her death.

It was found that the danger to the patient had been increased by the appellant’s decision not to delay the procedure pending the patient losing weight by following a dietary regime recommended by an endocrinologist; in the circumstances the surgery performed should have been considered only as a last resort.  It was further found that he had not drawn the attention of the attending anaesthetist to the risk of thromboembolisation and that he had also not drawn those dangers to the patient’s attention.

The defendant was convicted at first instance of homicide involontaire (≈ manslaughter).  The Court of Appeal at Versailles quashed the conviction but declared the defendant liable to pay compensation to the deceased’s heirs pursuant to article 470-1 of the Code du Procedure Pénale*.  The defendant appealed.

Held: Per curiam, dismissing the appeal –

1.  While the doctor’s responsibility relates to the choice of medical means and not to the ultimate result, this principle is displaced where it is established that there has been an error in the carrying out of those means.

2.  While a doctor is obliged to inform their patient of the risks of proposed treatment, the doctor is entitled to adduce a range of evidence (including presumptions) to demonstrate that they have fulfilled that obligation.  It was not open to the Court of Appeal to find that Dr X had failed to fulfil this obligation solely from the absence of a signature by the deceased.

3.  On the available evidence, the Court of Appeal was able to find that Dr X’s errors had directly contributed to the patient’s death and justified it ordering him to make recompense to her heirs.

Judgment

The Court’s judgment is available here.

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* No copy of the decision can be located.