I  just finished watching a 60 Minutes piece of on a new trend in DWI fatalities being charged as murder instead of a lesser offense.  In general terms the offense would be called  “vehicular manslaughter” but in New Hampshire, an accidental DWI fatality is generally charged under RSA 630:3, Negligent Homicide, a class A felony punishable up to 7 1/2 to 15 years.  They key difference between murder and manslaughter is that murder requires proof that the act was committed with the intent that the death occur. While a DWI resulting in death is a horrible thing, the driver does not intend that the victim die.  From a moral perspective, the driver is much different than a killer who acts with the intent that a person die.

Just as important, from the perspective of deterrence, which is considered one of the most important goals in sentencing,  it’s hard to deter people from acting unintentionally.  The prosecutor featured on 60 Minutes argued that steep sentences for drunk driving fatalities will act to deter people from driving drunk generally.  The problem, no drunk driver, believes they will be the one to get in an accident.  Therefore, the deterrent value of steeper sentences under those circumstances is questionable.  This is demonstrated by the very facts stated on 60 Minutes, which was clearly slanted in favor of the prosecutor’s approach — although the sentences for DWI have become increasingly steep over the last few decades, the prevalence of DWI has remained the same or increased.

Drunk driving is a big problem, both for society and the criminal justice system.  Unlike most types of crimes, judges, juries, police officers and lawyers can all relate to the drunk driver.  If they haven’t done it themselves at some point in their lives, they surely know people who have.  As a judge told off the record during a drunk driving fatality case that I was involved in — “there but for the grace of God go I.”

There is a feeling that only luck and circumstance separate the drunk driver who gets in an accident and kills somebody from the drunk driver that gets pulled over and arrested.  Yet the punishments meted out are like night and day.  I don’t have an easy answer.  When there is a real victim, society will demand a more serious punishment.  The difficult question is, how much more serious?

One of the most common complaints I get from clients is that the police never “read them their rights” when they were arrested.  Many people believe that this alone means the charges must be dropped.  If that was true, my job would be much easier!

Actually, the requirement that the police read you your rights is generally only relevant if they are going to question you.  By the rule established in the famous Miranda case, when you are under arrest (or otherwise not free to leave), before the police question you, they must notify you that you have the right to remain silent, the right to have a lawyer, etc.

If the police question you without reading you these warnings and making sure you understand them, anything you tell them during the questioning can’t be used against you later.  For example, in the Miranda case, because Ernesto Miranda was not read these rights before admitting he kidnapped and raped a young woman, his confession should not have been used against him at trial, and his conviction was reversed by the U.S. Supreme Court.  Nevertheless, he was convicted at retrial even without his statement being used against him.  Ironically, several years after Ernesto’s release, he was stabbed to death in a barfight.  The suspected killer asserted the right to remain silent, which was by then firmly established, and was never prosecuted.

Back to the point of this post:  the fact that the police didn’t read you your rights can only help you in your case if you gave a statement. If the police don’t question you, there are no rights for them to read.  The fact that they didn’t read you your rights is no magic ticket to beating the charge.

The New York Times recently described the ever-increasing difficulties public defender offices around the country are having maintaining caseloads low enough to provide adequate representation for the many client unable to afford an attorney.  In Miami, for example, the public defender’s office has successfully refused to accept new cases because of their overwhelming.

From my observations, the caseload of the average public defender in New Hampshire, while still too high, is far more manageable than in many other areas, particularly in the large cities.  It’s not uncommon for a single public defender in a large city to handle 20 or more cases in a single court session — often having met all the clients all for the first time.  As a public defender in New Hampshire for six years, while I certainly kept busy, I never had anywhere near such a crushing experience.  I rarely handled more than 4 cases in a single session and each client was given the opportunity to meet me ahead of time (although certainly not all took advantage of that opportunity).  Now that’s not to say that things here are perfect:  most public defenders would concede they could do more with their cases if they had fewer of them.  Frankly, however, all busy lawyers would have to admit the same thing — whether they work in private practice, for the government, in academia, whatever.

I’m a little biased because I’m proud of the time I spent at the public defender, and feel indebted to the organization for the training I received.  Many of the best criminal defense lawyer I know work or worked there.

Those responsible for securing funding for indigent defense in New Hampshire should be proud.  They have managed to maintain high quality criminal defense services.  While not a politically popular use of taxpayer dollars, it is one of the most important.  I, for one, don’t want to live in a country where the quality of justice a person gets depends on the size of their pocketbook.

Back in 2002, the United States Supreme Court struck down on First Amendment grounds a federal statute that prohibited the possession of “virtual child pornography” — that is, entirely computer generated images designed to simulate actual child pornography.  Earlier this year, the New Hampshire Supreme Court followed suit, and held that in order for a person to be guilty of possession of child pornography, the images must depict an actual child.  That left the issue of what type of evidence is sufficient to prove that the images possessed by the defendant are actual children and not computer generated.

On Thursday, the New Hampshire Supreme Court agreed with most courts that have addressed this question, holding that the state does not need to introduce any expert testimony on this subject.  Instead, the jury can consider the images alone and from that conclude beyond a reasonable doubt that they depict actual children.

Realistically, however, any jury confronted with images of child pornography will be highly offended and likely convict the defendant regardless of whether the images depict actual children.  In fact, many experts believe that it is impossible to make such a determination from the images alone.  Probably, the only way to know for sure whether the images depict an actual child is to trace the source of the image — that is, find the child.  Such a task can be challenging for the state and potentially traumatic for the child involved.  In my opinion, it is convenient for the courts, and unfortunately in this instance New Hampshire’s only appellate court, to allow inadequate evidence of guilt in order to relieve the state of the unsavory task of gathering the truly sufficient evidence.  Don’t get me wrong, I have no sympathy for child pornographers or child molesters, but I do care about the First Amendment and the fundamental requirement that the state prove an offense beyond a reasonable doubt before someone can be convicted and punished for a crime.  As we know, these concepts are often tested most when applied to society’s most unpopular members, and on this matter we have failed.