An Accidental Death of a Child (11/19/97) 
I picked up a book shortly after law school entitled Why Courts Don't Work. Despite its negative title, it did provide some worthwhile insights. For example, the author spoke of how even the most hard core law and order type will often become more open minded when he actually had to sit on a jury and decide the fate of a another. That passage came to mind this week when I learned of the  following  true scenario from neighboring Parker County:

A 37 year old man (we'll call him "Bob") invites a family, including children ages three and five, into his home because they had fallen on hard times. (For the record, the couple was not married).   Bob is single, had no one else living with him at the time he extended his invitation to the family, and has never had children of his own.

The children's mother had recently taken a job at Walmart while her boyfriend, who works construction, was in between jobs. They were trying to get back on their collective feet.

After only three days under the new living arrangement, a truly tragic situation occurred. The five year old child finds Bob's .22 rifle behind a bedroom door in the house and fatally shoots his three year old brother in the chest.

Everyone is heartsick.

According to the child's grandfather, Bob is "just like the rest of us - crying his eyes out."

Now, however, Weatherford police Sgt. Royce Goodson told the Dallas Morning News [link available as of this writing] that his office will investigate the case and refer its findings to the Parker County District Attorney "for presentation to the grand jury".

Yes, in fact, there is a law which covers this situation. Texas Penal Code 46.13 makes it a Class A misdemeanor if death results from a child gaining access to a readily dischargeable firearm and a person, due to his criminal negligence, either failed to secure the firearm or left it "in a place to which the person knew or should have known the child would gain access." [Note to Sgt. Goodson: With all due respect (1) Class A misdemeanors do not have to be screened by a grand jury, and (2) in any event,  it is the D.A., and not law enforcement, who decides which cases are worthy of consideration by the grand jury].

So the law, in all likelihood, has been violated. Why not prosecute?

Because, in my opinion, it's not the right thing to do.

Unquestionably, Bob was irresponsible for not placing the gun out of reach. However,  I always take a good, hard look at any case referred to me wherein the allegation is that someone committed a negligent act. Ninety-nine percent of the crimes in the State (excluding DWI) involve a result  which was intentional. For example, someone desired to rob, steal, or rape. On the other hand, when someone acts in a negligent (read "stupid") manner, it behooves the prosecution to take a second look at the case before setting the machinery in motion to brand that individual a criminal.

If Bob's case were referred to me for prosecution, it would not be unusual (after a careful review of all the facts) for me to simply decline it.

Critics would say that to prosecute Bob would send a message about how dangerous guns can be when carelessly handled or stored. My response: if Joe Blow doesn't know that a loose gun can kill a child, he probably will not suddenly become enlightened due to the prosecution of Bob. Besides, isn't the headline of the child dying enough of a deterrent? After all, do those of us who responsibly keep our guns out of reach of young children do so because we fear a misdemeanor prosecution or because we don't want someone to innocently die?  The answer is obvious.

Finally, if prosecution of Bob is for the sake of punishment, it seems that he has suffered enough. The government should not add hardship to the pain that has already been inflicted. His memory of a misdemeanor conviction would, over the years, fade. His recollection of the death of the child, however, will not.

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

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