BISARD SENTENCING

The news broke over the last week that David Bisard was released from prison to start serving probation. Many in the Central Indiana biker community and the community overall have expressed outrage that Bisard could be released after serving only 3 ½ years of an announced 16 year sentence.  I want to take the chance to try to show how this happened and let you know how you can make sure your voice is heard.

First, in 2014 the Indiana Legislature re-wrote the criminal code for the state. Notably, the old system of felonies graded by letter (4 levels from D to A) was replaced by a number system (6-1).  Bisard was sentenced under the old system for his convictions for:

1: Operating a Vehicle with a BAC greater than 0.15 Causing Death – Class B Felony

2: Operating a Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury – Class D Felony

3: Operating a Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury – Class D Felony

For a Class B Felony, the penalty range was 6-20.  A Class D Felony ranged between 1-3 years.  So the maximum possible penalty Bisard, or anyone else facing the same charges, could have received on paper was 26 total years.  He also could have gotten as low as 6 years.  Bisard’s actual sentence was:

Class B Felony: 13 total years.  10 years in prison.  3 years suspended to probation.

Class D Felony: 1 ½ total years.  1 ½ totals years in prison

Class D Felony: 1 ½ total years.  1 ½ totals years in prison

TOTAL Sentence: 16 total years.  13 years in prison.  3 years suspended to probation

So how does someone sentenced to 13 years in prison get out in 3 ½? First is good time credit.  When he was sentenced, an inmate received one day of good time credit for each day served.  So when he was sentenced to 13 total years in prison, it effectively was a 6 ½ year prison term.  Second, Bisard also received jail credit days for the time he was in custody awaiting trial.  Additionally, he received his associates degree while in prison and was given the benefit of another time cut.  Good Time Credit and time cuts happen every day because of the system that was and is in place.  Most of us are just generally unaware of it unless it happens with a defendant that has harmed us or one of our loved ones.

What’s Broken?

There are a number of issues with the sentencing laws for this crime. For example, with the rewrite of the criminal code the maximum actual number of years for what Bisard did is now 8 years instead of 10.  Also, with the rewrite, there is never a mandatory executed sentence for a drunk driving causing death unless there is also a hit & run component.

The definition of “Serious Bodily Injury” also deserves to be looked at by the legislature. As it is written, serious bodily injury covers everything from a broken arm to putting someone in a coma.  In either case, there are no enhancements beyond the 1-3 year penalty range for the degree of injury or level of intoxication.  This is more pronounced now because the equivalent charge has a 1 – 2 ½ year penalty range with the same 50% credit time system.

The civil law system also has disadvantages in a case like this. Because Bisard was working as an IMPD officer at the time of the crash, any claim for compensation by those injured by him is subject to the Indiana Tort Claims Act (click HERE for a video with more information on the ITCA).  So whether someone has passed away or suffered lifelong and debilitating injuries, the most the government can be required to pay to compensate is $700,000 per person.  At first blush this sounds like a great deal of money, unless you’ve seen the medical bills that come along with catastrophic injury.

How to be Heard

The problems with the David Bisard sentencing are not unique to him. Victims, and their families, all over the state have this happen to them every day.  The only people who can make changes to the criminal and civil laws that allowed this situation to happen are the legislators at the Indiana General Assembly.  Click HERE to find your legislator and let your voice be heard.

Matthew S. Bigler, Esq.

LADENDORF LAW SUPREME COURT VICTORY!

While I am happy to report that the Indiana Supreme Court ruled in favor of my injured client in this specific case, I think the Court’s opinion does a very good job of unanimously affirming the importance of our civil justice system and the absolute need for our courts to be open to all. 

The Court’s opinion is 19 pages long so I thought I would provide you with some highlights from Chief Justice Rush’s opinion.  The opening sentence of the opinion reads: 

Indiana’s tort trials should be about making injured parties whole—not about federal immigration policies and laws. 

She then went on to address the constitutional implications this case raised: 

When Indiana law affords a remedy—like recovering decreased earning capacity—the Open Courts Clause does not permit us to close the courthouse door based solely on the plaintiff’s immigration status. We cannot read the Open Courts Clause’s “every person” guarantee to exclude unauthorized immigrants. [Citations omitted.]  And as long as decreased earning capacity remains recoverable in personal injury actions, it is part of administering justice “completely.” See Smith, 883 N.E.2d at 807 (“[The Open Courts Clause means], at a minimum, that to the extent the law provides a remedy for a wrong, the courts are available and accessible to grant relief.”).  Accordingly, Escamilla and similarly situated plaintiffs cannot be barred from pursuing decreased earning capacity claims. 

Chief Justice Rush even quoted from Chapter 40 of Magna Carta, writing “to no one will we sell, to no one deny or delay right or justice.” 

After distinguishing a federal decision that was based upon a conflict between two federal statutes and involved only federal congressional policy, the Court moved on to create an evidentiary framework addressing when evidence of an injured party’s immigration status might be admissible. 

After acknowledging that immigration status is relevant to a claim for decreased earning capacity, the Court went on to find that, in the vast majority of instances, such evidence should be excluded under IRE 403 because it would confuse the issues and be unfairly prejudicial.  After acknowledging the complexities and constantly shifting federal immigration laws and policies – including a recent Executive Order signed by President Trump – the Court wrote: 

The way complex immigration law has invaded this opinion demonstrates the way it would invade Escamilla’s tort case if his immigration status were admitted. Immigration arguments and evidence would “flood the courtroom.” See Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997) (quoting United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996)). Injecting such a specialized and complex mini-trial into Escamilla’s tort case creates too high a risk of confusing the issues.  

The Court ultimately concluded that it is the Defendant’s burden to show that the injured party more likely than not will be deported before the issue of their immigration status can become admissible.  In reaching this conclusion the Court observed: 

Finally, even though proof that a particular immigrant will more likely than not be deported may be a steep showing, it is still the least cumbersome alternative. Requiring plaintiffs to prove that they will not likely be deported would require them to prove a negative—a burden we rarely impose. [Citations omitted.] 

For these reasons, the admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence’s risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice. 

This case will prove helpful to all injured parties who have been an unauthorized immigrant either currently or at some time in the past. 

Most heartening to us as trial lawyers, the Court’s unanimous Opinion shows a deep and abiding respect for the rights of injured persons to have access to our courts and the seek compensation when they have been injured through the fault of others.  

Finally, I want to offer my deepest thanks to all who helped on this case including Alex Limontes and Tom Ruge for their excellent Amicus Briefs.

 

Timothy F. Devereux

Share the Road: Motorcycle Ride Season Begins

Recent temperatures above 70 degrees for the first time in 2015 served as a reminder that it will soon be “Riding Season” for the tens of thousands of motorcycle and bicycle enthusiasts in Indiana. The Big Thaw also revealed the obscure dangers that lurk on our crumbling roadways as the vanishing freeze gives way to pavement failures, with potholes here, there, and everywhere!  It is not too soon, or too early, to once again raise awareness of the importance of safely Sharing the Road, recognizing the increased presence of pedestrians, bicyclists and motorcyclists.

Our practice of vigorously representing motorcyclists who have suffered harm by distracted, negligent, and drunk drivers spans over four decades.  Through our work, the attorneys and staff at Ladendorf Law have experienced along with our clients the human suffering of catastrophic injury and the avoidable loss of a loved one.

Being “Like Family, Because We Are,” our law firm recognizes our social and moral obligation to the community we serve.  Ladendorf Law supports several benefit and charity rides across the State throughout each Riding Season.  Once again, we are humbled to be the primary sponsor of the Second Annual Memorial Ride in honor of former Grant County Sheriff’s Deputy Michael Andry, who was killed at the age of 49 when a distracted driver turned left in front of Lt. Andry’s motorcycle in July 2013.

The Second Lt. Michael Andry Memorial Ride will be held on June 20, 2015 beginning in Greentown, Indiana.  Funds raised through the Second Lt. Michael Andry Memorial Ride will benefit the Grant County Sheriff’s Gifts For Kids, Marion’s Cops & Kids and the Howard County Benevolent Fund, which helps children through the Howard County Sheriff’s Department.  For more information on the Ride, visit Facebook:  https://www.facebook.com/mikeandryride

The first Lt. Michael Andry Memorial Ride took place July 12, 2014 in Marion, Indiana on the one year anniversary of Lt. Andry’s tragic death.  Ladendorf Law was there as the primary sponsor.  Through the organizing efforts of Lt. Andry’s family and the generosity of the many riders and participants, the Ride was a tremendous success, raising $10,000 in donations for two of Lt. Andry’s favorite charities: Grant County Sheriff’s Gifts For Kids and Marion’s Cops & Kids .  Go back in time for a birds-eye-view of the moving tribute to Lt. Andry as kickstands go up and 100 bikes begin the 130-plus mile ride escorted by the State Police:  http://www.ladendorf.com/birds-eye-footage-1st-lt-michael-andry-memorial-ride/.

Harley-Davidson recalls 66,421motorcycles

In the last few weeks, Harley-Davidson, Inc. has announced the recall of an anticipated 66,421 motorcycle units following consumer crashes resulting in personal injuries.  The company’s concerns center around the front wheels locking without warning.

From the Associated Press:

NEW YORK (AP) –

Harley-Davidson is recalling 66,421 Touring and CVO Touring motorcycles from the 2014 model year because their front wheels can lock up without warning.

Motorcycles with anti-lock brakes built between July 1, 2013, and May 7, 2014, are included in the recall.

Harley-Davidson Inc. says the front brake line can get pinched between the fuel tank and the frame. That could cause front brake fluid pressure to increase, increasing the risk that the front wheel could lock up while riding.

The company knows of five crashes and two minor injuries related to the defect, which it discovered last fall through warranty claims.

Harley-Davidson will notify owners later this month. Dealers will replace the brake lines for free and attach straps to hold them in place.

Here’s more information from USA Today:

At the height of riding season, Harley-Davidson has ordered up a big recall of near-new motorcycles.

Harley is recalling 66,421 Touring and CVO Touring motorcycles from the 2014 model year. It warns that the front wheels can lock up without warning. The recall applies to bikes with anti-lock brakes made between July 1, 2013, and May 7.

The flaw has resulted in five crashes, with two minor injuries.

The snafu occurs when a brake line in front is pinched between the fuel tank and the frame, causing the front brake fluid pressure to increase and increasing the risk that the front wheel could lock up while riding. Dealers will replace brake lines and install straps to keep them in place.

The company invites consumers to review safety recall information on its website, where you can enter your VIN securely and see if this recall applies to your motorcycle. 

Mark Ladendorf Interview with WTHR: Tony Stewart Crash

NASCAR Driver Tony Stewart Hires Indianapolis Defense Attorney James Voyles

The motor sports world suffered a great loss on Saturday, August 9, 2014 when Kevin Ward, Jr. died of massive blunt force trauma after he was struck during a sprint car race by Tony Stewart’s vehicle.  As this perplexing and tragic event is being investigated, no criminal charges have been filed to date.  However, WTHR News reported that Stewart has retained seasoned Indianapolis defense attorney James Voyles just days after the fatal wreck.

Regardless of what the New York prosecutors decide to do as far as criminal charges are concerned, it is likely that Tony Stewart will face legal action in the civil arena. That is, even if New York authorities conclude that Ward Jr.’s death was entirely accidental, his family could conceivably pursue a wrongful-death civil case under a theory of negligence.

The differences between proving manslaughter in criminal court and proving negligence in civil court are significant.  For one, the level of intent is much lower for negligence, as a wrongful death plaintiff need only show that the defendant’s actions fell below a standard of reasonable care under the circumstances.  (By contrast, a prosecutor needs to prove the act that caused the death was intentional, or at minimum, severely reckless.)  Moreover, theburden of proof in a civil case requires the plaintiff demonstrate that it is more probable than not that the defendant was negligent and that the defendant’s negligence caused the plaintiff damage.  The time-honored criminal burden of proof is that all elements of a criminal charge be demonstrated “beyond a reasonable doubt,” a much higher bar to meet.

In spite of the ugliness of the scene that resulted in Ward Jr.’s death, there remain challenges for his estate if it seeks to bring a wrongful death claim. Ladendorf Law founding attorney Mark Ladendorf explained some of these challenges in an interview with WTHR (local NBC) on Monday.

From a claimant’s perspective, Mark’s first concern is whether Kevin Ward Jr. executed a waiver or release of liability prior to participating in the sprint race.  Athletic releases–which operate to bar a future civil claim in exchange for the athlete being allowed to participate–are pervasive in motor sports.  In many instances, the language of the release / waiver signed by a deceased individual can be binding upon his heirs in a wrongful death case.

Second, Mark discussed one of the critical differences between the substantive laws of New York, where the incident occurred, and Indiana, which is Tony Stewart’s home state.  Under the Indiana Adult Wrongful Death Statute (codified at I.C. 34-23-1-2), the estate of an emancipated adult who is killed through the fault of another can only collect at most $300,000 in “non-economic damages” — that is, damages that represent the loss of love, care and companionship.  This is only one type of “damage cap” created by the Indiana Legislature to limit a party’s recovery.  The State of New York, by contrast, does not cap wrongful death damages for the statutory survivors of the deceased.

To view portions of Mark Ladendorf’s interview with WTHR, click here.

Ladendorf Law will continue to follow this developing story. Our practice is devoted exclusively to representing victims of personal injury accidents, medical malpractice and wrongful death.  Please do not hesitate to call us if we may assist you, your friends or acquaintances with a case.

Statutory Damage Caps in Personal Injury Cases

I’m sure you have heard of those mystical personal injury law suits where the plaintiff supposedly recovered millions of dollars for a stubbed toe. Well, this example is obviously hypothetical, but you get my point. The majority of the public feels that civil plaintiffs recover millions all the time for the slightest of injuries. In fact, let’s be honest, the public perception is really that when a plaintiff has a personal injury claim, they are looking to “hit it rich.”

In reality though, that couldn’t be further from the truth. Most victims of personal injury really just want their lives to return to normal…or at least as close to normal as possible. In fact, even if an injured party wanted to “hit it rich” from a personal injury claim, in many instances, the law doesn’t allow them to do so.

A personal injury case (motor vehicle collision case, medical malpractice case, products liability case, etc.) is what the legal world refers to as a “tort claim.” A tort lawsuit is a suit where one person (“the plaintiff”) sues another (“the defendant”) for damages that the defendant caused to the plaintiff when the defendant committed an act of harm recognized by our civil laws (e.g. negligence). What do “damages” mean? Damages are compensation for the harms that were caused by the wrongful act.  This compensation is strictly for the damages sustained…no more…and no less. Specifically, tort law intends for the damages a plaintiff recovers to compensate them in a manner so to place them in the same position they would have been had they never suffered the injury in the first place. Obviously, a jury award cannot physically fix their bodies or award the plaintiff a time machine to travel back to a time when they were not injured.  What the jury award does do is provide a plaintiff with an amount of money to hopefully help them live with their injuries in a more “normal fashion.”

To provide guidance to a jury, the law specifies what losses should be included in the damage compensation awarded. Those include:

  • The reasonable value of necessary medical care, treatment, and services (past and future);
  • Loss of wages (past and future);
  • The value of a loss of earning capacity;
  • The value of loss of enjoyment of life the Plaintiff has suffered;
  • The value of the physical and emotional pain and suffering the Plaintiff has suffered; and
  • The value of disfigurement and / or deformity resulting from the injuries the Plaintiff has suffered.

All of the damage considerations can then be affected by the extent of the injuries; whether the injuries are temporary or permanent; the length of life a plaintiff would have to live with the injuries; and the effects of inflation or depreciation of the damages awarded.

In cases of death, dismemberment or permanent debilitating injury, the amount awarded for damages can rise to an extremely high number. But, given the fact that a compensation award is intended to bring the plaintiff back to the same position she would have been had she never suffered an injury in the first place, it’s only fair.

With all of that considered, did you know that Indiana law places a cap on the damages a plaintiff can recover in certain types of cases? If a Plaintiff is injured, she should be allowed to recover all of their damages, no matter how much is at stake, right? Similarly, if a Plaintiff is injured, a Plaintiff should be allowed recover all of their damages, no matter what geographic location she resides in, right? Finally, if a Plaintiff is injured, she should recover all of their damages, no matter how they were injured, right? I mean, isn’t that what I just spent the first few paragraphs explaining? Well, regretfully, I was correct in my theoretical explanation above. But according to Indiana lawmakers, practice should be different than theory. In fact, over the last 40 years the Indiana Legislature has placed numerous monetary caps on the damages a Plaintiff can recover.

For instance, if a Plaintiff suffers an injury due to medical malpractice, a Plaintiff can only recover a maximum of $1.25 million…no matter how much a jury would actually award. I.C. 34-18-14. Or, if an unmarried adult with no dependents is killed via an act of negligence, the maximum amount their estate can recover is $300,000.00 plus attorney fees. I.C. 34-23-1.

These caps may seem like a lot of money and may seem fair to some; however, keep in mind that what these caps really stand for: the state lawmakers placing a maximum value on individual’s lives and state lawmakers categorizing certain individuals based on the type of negligence involved.

Statutory caps on damages remain a hot topic among the attorneys who are confronted with them on a consistent basis. Regretfully, all too often it also affects injured parties.

Ladendorf Law is constantly keeping up to date on the legal ramifications and changes in statutory damage caps and fighting hard for our clients as we navigate through the complicated statutes that continuously “stack the deck” against victims of personal injury. If you or your loved ones have been injured by the negligence of another, contact Ladendorf Law to allow us to answer your questions concerning these statutes and more as well as conduct a free case evaluation.

Bird’s Eye Footage of the 1st Lt. Michael Andry Memorial Ride

When technology and philanthropy come together, beautiful results can happen.  This video, taken by a drone hovering above the American Legion Post #10 in Marion, Indiana, followed the motorcycle riders who participated in the inaugural Lt. Michael Andry Memorial Ride on July 12, 2014.

The initial couple of minutes show the Legion grounds and the bikes departing.  The drone catches up with the riders en route on the 137 mile journey.  It concludes with still photos of former Grant County Sheriff’s Deputy Michael Andry on his bike and the cross at the scene of his untimely crash that led to his death.    Incredible aerial videography, particularly for those who have never seen what a drone can do.

Ladendorf Law Sponsors Inaugural Lt. Michael Andry Memorial Ride

A recap of the July 12, 2014  Lt. Michael Andry Memorial Ride, by Ladendorf Law attorney Dan Ladendorf:

Approximately two hundred people – volunteers and participants alike – stood under partly cloudy skies waiting for the formal invocation to kick-off the Lt. Michael Andry Inaugural Memorial Ride. A young lady was invited to the microphone where she acknowledged Lt. Andry’s selfless actions when he came upon the scene of a crash several years ago and played a role in making her presence at this event in his memory even possible.  In his work, Lt. Andry touched the lives of many people in unforeseen ways and made his community a better place until a senseless crash on July 12, 2013 claimed his own life at the young age of 49.

Despite Saturday’s stormy forecast, the only thunder overheard at American Legion Post #10 in Marion, Indiana was the roar of one hundred motorcyclist departing for a 137 mile ride in memory of Lt. Andry, a twenty-one year veteran of the Grant County Sheriff’s Department.  A law enforcement escort accompanied the procession of bikes over the Salamonie Reservoir with a scheduled stop at Brandt’s Harley Davidson in Wabash.  The ride continued across the Mississinewa Reservoir, through Converse and into the Town of Swayzee, where Lt. Andry began his career in law enforcement as the Town Marshall.   A second stop in Greentown provided a short respite before riders passed byKnox Chapel Cemetery where Lt. Andry is laid to rest.  Upon returning to the Legion, afternoon activities included food and a silent auction.

Ladendorf Law was the primary sponsor of the ride and is grateful the Andry family invited our participation in the event, which promoted driver and motorcycle safety.  Ladendorf Law attorney Dan Ladendorf was on-hand at the Legion in the hours before the 11:00 a.m. ride commenced.  Proceeds from this year’s inaugural ride are earmarked for the benefit of two law enforcement related charities including the Grant County Sheriff Department’s “Sheriff’s Gifts for Kids” program and the Marion Fraternal Order of Police “Cops and Kids” program. Both charities assist less fortunate children during the Christmas season and were supported by Lt. Andry before his untimely death.

The inaugural Lt. Michael Andry Memorial Ride ride was held on the one year anniversary of Lt. Andry’s death, which was caused by the negligence of another driver who executed a left turn directly into and across the path of Lt. Andry’s motorcycle on SR 13 just north of Elwood, Indiana.  Lt. Andry’s family intends to continue the event each year in celebration of his life and in support of his commitment to the community in which he lived and worked.  Ladendorf Law looks forward to being along for the ride.

Like family.  Because we are.

dan + family
Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.

Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.

 

Kickstands up! Time to roll out for the 100+ mile ride.

 
Lt. Michael Andry Memorial Ride volunteers… hard at work!

Lt. Michael Andry Memorial Ride volunteers… hard at work!

Steel Horse Thunder to feature Ladendorf Law in 2013 Holiday Episode

Twas three days before Christmas, and what what do you know?

I just woke up to catch my favorite Sunday morning show.

“What show might that be?” my friends sat and wondered.

Why, it’s the Holiday Special, courtesy of Steel Horse Thunder!

Many of us at Ladendorf Law made the trek through the snow and ice to Southside Harley Davidson this past Saturday morning, where Scott, Andy, and the Steel Horse Thunder crew were preparing their final episode of 2013.  It’s going to be a holiday special you will not want to miss, so make sure to set those alarms for this Sunday, December 22nd, at 10 AM on MyINDY TV.  You never know who might be wishing you good tidings…

Ladendorf Law comes along for the ride with the Steel Horse Thunder production crew

Ladendorf Law comes along for the ride with the Steel Horse Thunder production crew

For more pictures during the production of this week’s Steel Horse Thunder episode, click to our Facebook page.  Happy Holidays!

 

“Affluenza”: Legitimate Legal Defense or Junk Science?

This week’s national headlines featured a criminal case for the ages at the intersection of law and social science.  It also reintroduced America to what has been described as the “All-Consuming Epidemic” for children of extremely wealthy families: “Affluenza.”

The facts of the juvenile criminal proceeding that shocked the nation are simple, though incredibly tragic.  From theLos Angeles Times recap:

“According to officials, the teenager and some friends were seen on surveillance video stealing two cases of beer from a store. He had seven passengers in his Ford F-350, was speeding and had a blood-alcohol level three times the legal limit, according to testimony during the trial. The pickup fatally struck four pedestrians: Brian Jennings, 43; Breanna Mitchell, 24; Shelby Boyles, 21; and her mother Hollie Boyles, 52.”

Texas prosecutors had sought the maximum 20 years in state custody for the boy for the death of the four pedestrians, but his defense attorneys were able to successfully argue to District Judge Jean Boyd that the ideal sentence for the offender is rehabilitation, as opposed to prison.  Couch will serve 10 years of probation and is anticipated to submit to rehabilitation at a California facility at a cost in excess of $450,000.

So how was it that Couch got off with such a glaringly light sentence under the circumstances?  A piece of exculpatory evidence?  A remorseful plea of mercy at the sentencing hearing?  Other mitigating factors?  Well, sort of.

This time, what carried the day was the defense’s argument that Couch himself was a victim.  The defense presented psychologist G. Dick Miller to testify that Couch was suffering from “affluenza” —that he lived such an extravagant, materialistic, consequence-free life that he was unable to understand or control his behavior. According to Christopher J. Ferguson at Time.com, this is perhaps the first time in American jurisprudence that having too easy a life has been considered a mitigating circumstance.

Read more: “Affluenza” is Junk Science | TIME.com http://ideas.time.com/2013/12/14/psychologist-affluenza-is-junk-science/#ixzz2naPrbUFa

As expected, this sentencing has sent a shock wave through the news media, the blogosphere, and the legal community.  Major criticisms are being levied against the validity of “affluenza” as a defense in our system of justice.  Over at USA Today, the debate is heating up over the future of “affluenza”-type defenses.   Is the “affluenza” defense merely an extension of the law’s insistence that criminal culpability requires an appreciation of the consequences of one’s actions?  Or is this a product of pop psychology without empirical support that would have the odious effect of condoning differential treatment between those litigants who have hoards of money and those who do not?
Although Couch’s sentence would seem to create the sort of double standard based on wealth that the law abhors, I hesitate to be Chicken Little here.  While defense attorneys in both the criminal setting and the civil arena (where the burden of proof is much lower) may try to replicate the success of Mr. Couch’s lawyers, I ultimately don’t see the “affluenza” defense gaining much traction in our courts of law.  For one, “affluenza” as a psychological construct has not received blessing within the Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association.  Second, prosecutors and plaintiffs’ attorneys will likely respond to the Couch decision by challenging the admissibility of any purported expert testimony on “affluenza” generally and as applied to a particular case.  Finally, our courts of law and the judges who lead them are going to take heed of the public outrage over the “Blame the Parents” implications of this decision.  Judges, particularly in those jurisdictions which select their judges through popular elections, are keenly aware of the political and professional consequences of appearing “soft on crime.”  Although this criticism usually manifests itself with career offenders, there is good reason to believe that citizens will be equally outraged by a judge who over-sympathizes with a wealthy young defendant who seeks to avoid responsibility by claiming that he is the victim of his family’s wealth and the lack of boundaries that attend to that affluence.  The courts will therefore reject the classism that is inherent in the “affluenza” defense to preserve their own accountability to “We the People,” and this most recent case, though intriguing, will become an outlier.

 

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