In Defense of Barry Switzer (8/06/97) 
Let me take a moment to defend Barry Switzer. That is, from a legal

As you certainly know by now, Switzer was arrested at the DFW
Airport last Monday for having a handgun in his possession.
Although everyone has had a good chuckle over of the incident,
there is an aspect of the case that has been seriously overlooked.
He might not be guilty.

How can that be, you ask? It's that pesky problem of proof.

Switzer could be charged in one of two ways: (1) the third degree
felony offense of carrying a weapon into an area where even lawful
weapons are prohibited, to-wit: the airport, or (2) the misdemeanor
offense of simply unlawfully carrying a weapon.

But regardless of the charge, both offenses require the State to
prove beyond a reasonable doubt that Switzer acted either
"intentionally, knowingly, or recklessly". If the State can't prove
it, he cannot be convicted. He would not be guilty.

After the incident Switzer gave an arguably emotional and plausible
explanation which, if believed, revealed he simply had forgotten
that he had placed the gun in his carrying bag. The public
consensus apparantly agrees with him since to conclude otherwise
would require you to believe he intended to smuggle it past airport
security. Even Switzer's harshest critics do not make such a

This conclusion, however, has dramatic legal implications in that
is disarms most of the prosecution's weapons. Specifically, a jury
cannot likewise be expected to find that Switzer "intentionally" or
"knowingly" carried the pistol.  Even the spokesperson for the airport
conceded such when she stated there was no "criminal intent" on the
part of Switzer.

That leads the prosecution with only one alternative: Proving that
Switzer recklessly carried the weapon. Place yourself on the jury
for a moment and listen to the judge tell you how "reckless" is
defined under the law:

"A person acts recklessly, or is reckless, with respect to the result of
his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or
the result will occur.  The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the
circumstances as viewed from the actor's standpoint."

If your head is spinning, join the club. The definition actually is
more applicable in other cases. For example, a person who kills a
child with his vehicle because he drove 80 miles per hour through
a school zonecertainly did not intend to kill the child, but he knew
there was a risk of that event occurring. Further, he consciously
disregarded that risk when he pushed down the accelerator.  Finally,
to disregard that risk was a gross deviation from the typical
standard of care as defined in the statute. Such a case is
catagorized as manslaughter which is simply defined as "recklessly
caus[ing] the death on an individual".

It is easy to conceive of any multitude of scenerios that constitute
the reckless, yet unintentional, killing of another. But try to do so
in the context of "recklessly" carrying a gun and the hypothetical
situations do not readily come to mind.

For the sake of argument, let's try. What's the risk? Putting the
gun in a bag that you typically carry because you might forget it
was placed there. Did Switzer know of that risk but consciously
disregarded it? Maybe, but it's certainly not like seeing a "school
zone" sign. Was the disregarding of the risk a "gross deviation"
under the statute? I'm not sure. If yes, this "gross deviation" was
committed by 38 other people at DFW Airport this year alone.

Now the case will be referred to the Tarrant County District
Attorney's office. Charges, most likely as a third degree felony, will
probably be filed. But in the back of the prosecutor's mind who
is assigned the case must be the realization that a jury trial of
Switzer has the earmarking of a disaster.

The case, after all, boils down to an argument over the definition
of "recklessness". Speaking as a prosecutor, that is not what you
want a jury to be discussing during their deliberations.  It is too
subjective. Too much room for interpretation. Couple that with
the defense lawyer imploring  the jury not to "brand this man a
felon" simply because he made a mistake, then the possibility
of an acquittal looms large.  After all, the State must prove the
case to all twelve members of the jury and each must believe
beyond a reasonable doubt that Switzer was reckless.

It's a tough sell.

How will this case be ultimately resolved? In my opinion, neither
side will risk losing a trial in front of the national cameras.
The alternative? The oft critized plea bargain. My guess? Reduce
the charge to a misdemeanor and offer a short period of deferred
adjudication probation and a fine. If Switzer subsequently
successfully completes the probationary period, he will not have a

Case closed, everyone is happy, and the result should seem fair in
the eyes of the public.

With this probable result in mind, however, you have to wonder how
a recklessly committed misdemeanor ended up on the front page of
every paper in the country.

Barry Green is the District Attorney for the 271st Judicial District.

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