kiki the parrot
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Quote by Mysteriew: I don't know if this will help but a lot of what LE looks at is willful intent. For instance one situation that happens a lot is leaving a kid in the car, the kid gets overheated and dies. One mother that I read about had a babysitter, the child was expected at the sitters that day. Mom thought she dropped the child off and went to work. 6 or 7 hours later the child was found dead in her car. It was ruled an accident. It was thought that she didn't have an intent to leave her child in a dangerous situation, but was distracted. Another mother didn't have a sitter lined up for that day, she got called in to work. She went to work taking the child, left the child in the car and worked most of the day. The child died and she was charged. It was thought to be an accident in the first case because the mother forgot... she didn't knowingly endanger her child. The second mother was thought to have knowingly intended to endanger her child because she left the child in a dangerous situation.
So in your situation lets say one mother was running after one child and the other fell into the pool. That would be considered an accident. If the mother had gone in to take a nap or talked on the phone for half an hour, that would be something different.
In 1981, the definition of "culpable negligence" in FL's manslaughter instruction is:
"Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury."
It seems we are referring here to the difference between negligence--and culpable negligence. Were Caylee (like most two and three year-olds) in a developmental stage where it is nearly impossible to always anticipate each new capability of the child or where some can be especially determined, ingenious or clever at outwitting conventional or typical childproofing measures thus what one day constitutes a reasonable safety measure and effective precaution ("ordinary care") the next proves less effective, worthless, or even fatal; and further where there seems to be an overlapping of custodial responsibility (ie when one adult is assumed, expected or reported to have "closed the gate," "taken off ladder following each swim," ad infinitum) so in which there exists the possibility of communication failure; where a parent (in your second example) who naps eg, may assume their child is also sleeping, or does not have access to the backyard because yesterday an agreement was made eg that the gate would be locked but another failed to remember, or was 24 hours prior a latch beyond the child's grasp; further where we, in a toddler drowning are talking about as little as a five minute timespan. All, some might argue reasonable assumptions yet contributing factors that may (in the second of the two scenarios constrasted by you) make "gross and flagrant" an especially difficult distinction, and weighty burden for the State to meet.
I am no legal eagle but I completely concur with Wudge, as I've insisted all along that the State has their work cut out for them when to date, we have seen nothing which indicates the cause much less manner of death. I personally must reserve judgment and appreciate his advocacy for strict adherence to the law while the State meets its burden and as we await the State's theory. Because in such an instance, in the absence of further evidence there would be really only the firsthand account of a parent (who has herself yet to give a single credible account) and secondhand speculation by a grandparent (with interests of her own) with which to establish or verify the myriad of hypotheticals described above. In my experience as a mother of four including a 20 year-old daughter and as grandmother to her adorable two year-old girl I can tell you I am not yet convinced this is a case of deliberate malice, nor of evil intent, nor even necessarily of any culpable negligence. If anything I've overidentified as I follow this heartwrenching story but have also wearied of the lynchmob mentality. There, I said it. So haters go ahead and hate--but please also bear in mind that the law which is implicitly concerned with KC's intent, exists also to protect you. JMHUO (unprofessional)
"But whoso shall offend one of these little ones... it were better for him that a millstone were hanged about his neck and that he were drowned in the depth of the sea." ~Matthew 18:6
http://www.floridasupremecourt.org/decisions/probin/sc07-2324_Report.pdf
So in your situation lets say one mother was running after one child and the other fell into the pool. That would be considered an accident. If the mother had gone in to take a nap or talked on the phone for half an hour, that would be something different.
In 1981, the definition of "culpable negligence" in FL's manslaughter instruction is:
"Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. For negligence to be called culpable negligence, it must be gross and flagrant. The negligence must be committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury."
It seems we are referring here to the difference between negligence--and culpable negligence. Were Caylee (like most two and three year-olds) in a developmental stage where it is nearly impossible to always anticipate each new capability of the child or where some can be especially determined, ingenious or clever at outwitting conventional or typical childproofing measures thus what one day constitutes a reasonable safety measure and effective precaution ("ordinary care") the next proves less effective, worthless, or even fatal; and further where there seems to be an overlapping of custodial responsibility (ie when one adult is assumed, expected or reported to have "closed the gate," "taken off ladder following each swim," ad infinitum) so in which there exists the possibility of communication failure; where a parent (in your second example) who naps eg, may assume their child is also sleeping, or does not have access to the backyard because yesterday an agreement was made eg that the gate would be locked but another failed to remember, or was 24 hours prior a latch beyond the child's grasp; further where we, in a toddler drowning are talking about as little as a five minute timespan. All, some might argue reasonable assumptions yet contributing factors that may (in the second of the two scenarios constrasted by you) make "gross and flagrant" an especially difficult distinction, and weighty burden for the State to meet.
I am no legal eagle but I completely concur with Wudge, as I've insisted all along that the State has their work cut out for them when to date, we have seen nothing which indicates the cause much less manner of death. I personally must reserve judgment and appreciate his advocacy for strict adherence to the law while the State meets its burden and as we await the State's theory. Because in such an instance, in the absence of further evidence there would be really only the firsthand account of a parent (who has herself yet to give a single credible account) and secondhand speculation by a grandparent (with interests of her own) with which to establish or verify the myriad of hypotheticals described above. In my experience as a mother of four including a 20 year-old daughter and as grandmother to her adorable two year-old girl I can tell you I am not yet convinced this is a case of deliberate malice, nor of evil intent, nor even necessarily of any culpable negligence. If anything I've overidentified as I follow this heartwrenching story but have also wearied of the lynchmob mentality. There, I said it. So haters go ahead and hate--but please also bear in mind that the law which is implicitly concerned with KC's intent, exists also to protect you. JMHUO (unprofessional)
"But whoso shall offend one of these little ones... it were better for him that a millstone were hanged about his neck and that he were drowned in the depth of the sea." ~Matthew 18:6
http://www.floridasupremecourt.org/decisions/probin/sc07-2324_Report.pdf
Good enough answer!
