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1. Mayor Blomberg Posted: September 28, 2010 at 02:33 PM (#3650232)I don't believe in general deterrence and multiple DUI people are the best possible targets for specific deterrence.
Anyway, isn't it likely that he will appeal? Isn't it also possible that his lawyers can negotiate a more favorable sentence in exchange for dropping the appeal?
With what, specifically?
I'm sorry, I didn't follow the last thread.
Like Ron, I don't have any problem with this, owing to the past DUI. First time, I would have a major, major issue. This time, nope.
With what, specifically?
I have serious misgivings about Watson advisements. If you want to argue implied malice based on observed facts of a previous DUI case, fine, but there's no way that our justice system should be treating mens rea as a contractual matter. If someone's guilty of a crime, should we also force the person to sign away their rights to self-incrimination or to not suffer cruel or unusual punishment in future crimes?
Call it jury nullification or whatever, but if the state didn't make its case for implied malice without that Watson advisement, I would have absolutely refused to find Gallo guilty on a murder charge, as much as that sickens me.
Sure - going through the red-light at 60 mph *sober* would be implied malice..
Not to diminish the act of driving drunk. But the disregard was in getting into the car drunk - not going through the red light per se...
I have to ask the question - would the same sentence have been put on someone who was on a cellphone or is by law incompetent to drive such as someone without a license.
Or is it because of the MADD psychology. Again I am not justifying the drunk driving - I'm trying to give it context...
Then argue that without using a piece of paper that destroys the concept of mens rea. If someone commits petty theft, would it be justified to force them to sign a paper stating that they agree to forfeit their right to a jury trial if they commit grand theft in the future?
And appeals don't give the same leverage in criminal cases as in civil ones, anyway; the prosecutor doesn't care how long your appeal drags the case out, the way a civil plaintiff does.
He'll never do anything close to that. He'll probably get 20 years and be out in 12.
If going through the red light while hammered isn't "conscious disregard for human life," then why is getting into the car in the first place? It seems whatever lack of mental clarity that would lead us to conclude the former would also apply to the latter.
But that's not really my problem, my problem is with Watson advisements being allowed as evidence of this.
with all the scrutiny i wouldn't be surprised if the judge hands down a stiffer sentence. this has all the makings of an 'example' case.
not that i'm taking sides. this has been just awful. the LA times had a front page picture of parents of one of the victims hugging the lone survivor of the crash after the verdict.
If you want to use the prior conviction to say he should've known, and probably did know, the risk, that's fine. But the prosecutor should have to make that case.
No, but if someone commits a petty theft of plutonium it would be justified for the Court to explain to our plutonium thief precisely how dangerous his petty theft might be in a future case. And if our petty thief hears that explanation- then acknowledges to the Court that he heard and understands said explanation- and then steals more plutonium, he knows how dangerous such a theft may be in that the danger has been specifically explained to him. And if his second theft leads to a serious contamination killing lots of people, when he shows up in Court subsequently and insists he had no idea such a terrible thing could happen- he's busted. I have trouble seeing a problem with that.
I understand the potential for danger with Watson Warnings, but I don't see a misapplication in this matter.
You're picking nits. Having a prior conviction means that you have to go through all kinds of hoops such that it would be impossible for you not to know what the consequences of your actions would be. I can only imagine that in this case the advisement is but one piece of evidence among many. As far as I can tell, the advisement is a warning and a reminder that the person understands that drunk driving is dangerous. Even if the defendant was forced to sign such an agreement, why shouldn't it be evidence of malice if that person later goes on to kill someone else? The signature indicates that they have read the thing, doesn't it?
I don't actually know why you're arguing this anyway. Did you read the trial transcripts? Did they try to argue implied malice based solely on the Watson advisement?
Indeed, but typically of this web site, there are guys here who still think that they're right even though they were completely wrong.
The signed statement merely made explicit that, ok, the consequence of getting behind the wheel drunk is an intentional act.
This means the guy has already spent his idiocy defense.
Now he faces 50 years minimum, likely around something less than that served (25?). Way more appropriate in this case than the standard around 6 for manslaugeter.
25 is perfect.
I'd say justice was fairly and justly served, and lucky the jury wasn't filled with OJ type dicwads.
If any person knew about the dangers of driving drunk, it is Andrew Gallo.
I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.”
And I still think the prosecutor's gambit was stupid, eve n if it did work this time
and speaking of posters who who still think that they're right even though they were completely wrong- you are one of the worse offenders around here so coming from you that is effing hilarious
(Speaking as someone who has never gotten a DUI, but may have deserved one on occasion in the distant past)
I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.”
Like Dan, I don't like the Watson warning. But, oddly, I think I'd feel okay if this statement had to be signed every time a driver's license was renewed. Throw in warnings about cell phones and lack of sleep.
As for feeling bad for Gallo, I do. Hell, I feel bad for mass murderers sentenced to death. People who murder people probably have issues in their life. If they didn't before, they will after. If they don't at all, I'm not sure they really enjoy the depth of feeling the rest of us enjoy. In this case, Gallo, sober, probably is horrified by what he did and he certainly isn't going to enjoy the next decade or two.
But, feeling bad for a guy in a bad spot, or who has a bad history is a very different thing than thinking he's getting what he deserves. It's sad, but I don't see how just letting him walk would be any better, overall.
If the Yankees are so good, why do they need Mark Teixeira to win?
DUI pleas are done via form in many (if not all) California counties -- every county has a different form, but they're pretty similar. All include the Watson advisement.
When I go through the form with a client, I explain what the Watson paragraph is about, why the govt wants them to sign it, and advise them to write "Fifth Amendment" instead of initialing -- if the judge reads it at them, they can just say "Fifth Amendment" then, too. I've never had a judge squawk at this practice.
Please don't call it that.
If you're forced to make a statement under threat of prison, can that statement really be said to reflect your actual knowledge?Really? Then do you not believe people are ever persuaded by potential punishment or reward to give false testimony or confessions?
The Watson advisement is usually given as a solid paragraph, followed by "Do you understand that?" (if it's the judge reading it) or preceded by "I understand that..." (if it's a form).
The Fifth Amendment includes the right to remain silent under government questioning, and the right not to have your silence held against you in any way.
Don't be drunk and drive a car. Andrew Gallo couldn't even follow that.
That's typical of everywhere ever.
What is the point of invoking the 5th amendment about the Watson advisement? You have to have already admitted you're guilty to begin with (or at least plead no contest) before you're asked to sign it. This makes no sense to me.
Then use those facts to make the case rather than make someone else waive their rights to a future fair trial in advance.
Don't be drunk and drive a car. Andrew Gallo couldn't even follow that.
It's also really easy to not steal someone's wallet (in fact, even easier). That doesn't mean that cutting off the person's hands would be justified.
Nobody's arguing what he did wasn't very, very bad. But just because something is very, very bad does not justify anything that's done to the person.
No. It's like your Miranda rights, you are being informed of facts, that does not require your agreement.
Because retribution isn't a legitimate function of a justice system.
Really? The whole concept of punishment is largely retribution. That's why crimes have different punishment.
If the justice system was simply about deterrence, you'd have the death penalty for every crime. Certainly if the penalty for a first offense DWI was death, no one would ever drive drunk.
But, most sane people believe that most crimes don't "deserve" the death penalty. That's b/c the punishment in large part is retribution for the crime.
A guilty or no-contest plea comes after a lengthy advisement -- Watson's part of that.
Apparently, it's not a critical part of the plea deal: as I said, I've never seen a judge have a problem with the defendant asserting his 5th Amendment rights there -- nor a prosecutor, for that matter. The prosecutor still gets a conviction, and the judge has said what he was supposed to say, so mentally they're pretty much already on to the next case.
EDIT: #51 pretty effectively explains the reason I handle DUI cases this way.
Except that no one lost their right to a future fair trial. What happened was that the defendant lost the ability to credibly claim that he didn't understand that drunk driving might lead to people getting killed. Which is reasonable, given that such was specifically explained to him during his previous DUI conviction.
It would seem that you're suggesting that we either (1) fail to advise people (as spelled out in #32) that drunk driving is dangerous when they get their initial pinch or (2) we advise them of such, but then forget that we did so when they ignore the information and kill someone anyway. I don't see how either is better than the current approach.
Since when?
I wish he would have said "shouldn't be" rather than "isn't".
I'm amazed that people continue to defend the Gallos of the world. "Yes, we must let murderers off the hook, because"...why? Because we've become unable to recognize evil? Because our civil liberties will all be immediately stripped and we're all in the concentration camp the next day? Because we don't want to judge anybody for anything, lest they start judging us? What?
do yall draw lines at which murderers you feel sorry for?
how about the parent who is tired of listening to the baby scream and shakes it to death? is it ok if the parent was drunk when they did it?
how about the parent who really NEEDS a fix and sells the kid to some pervert for sex? why they thought it was just sex and what is more natcheril than sex? how could they know the pervert would kill the kid?
how about the guy who is tired of hearing his woman ask him to fix the faucet when he wants to watch TV and he hits her in the face and she falls and hits her head and is killed. poor guy, he just wanted to watch the tv, he didn't MEAN to kill her, who could blame him
how about the woman who is tired of living with her fat old husband who spends all his time watching internet porn and won't give her a divorce and she gets tired of it and shoots him so she can finally be free. it WAS all his fault, right?
how about the woman who drives her car with 2 small children into the lake and drowns them because she just couldn't figure out what else to do with them when she wanted to go out and play
how about the guy who blows up a building and kills 200 kids? hey, it was just an accident, he only meant to hurt the building
-------------------
i really REALLY do not get why so many of you think it is no big deal to slaughter any amount of people you want as long as you FIRST drink enough alcohol to get your blood alcohol over 0.08 and THEN go and do it with a car
No one thinks that. My impression is that some people feel that perhaps he should have been convicted of a lesser crime and gotten maybe 30 years, rather than the sentence he seems likely to receive. And some people are, obviously, not comfortable with the Watson advisement. But, actually, no one that I have seen has even said that he should have been convicted of a lesser crime--why I used the word "impression."
No one has even indicated they have any feelings of this sort.
And this is why we have to come up with stuff like Miranda and Watson. A jury will inevitably get some folks who will look under every possible rock for a reason to let the guy go, so we come up with stuff like this to take away some of their outs.
And this:
I think a lot of us have either been in the position where we've driven drunk, or been in a vehicle with someone who shouldn't be driving. So in a sense, there but for the grace of god....
has no bearing on anything. You being lucky to avoid repercussions for being stupid enough to put yourself in that situation does not mean we have to go easier on those who were not as lucky.
This is a fascinating (if totally incorrect) way of looking at these decisions, I'll give you that.
EDIT: changed conjunctions.
I don't think anyone feels sorry for the murderer instead of the murdered. I think some people feel sorry for everyone involved. I personally don't feel sorry for Gallo except in the sense that I feel empathy for anyone who has to spend time in prison. Drunk driving has for far too long been something that wasn't taken seriously. For example, it took someone I know 7 convictions before he spent any serious time in jail. If the needle is swinging a little too far the other way in some instances, it's a shame (and it sucks for the people who are doing time for something that was not considered a big deal a couple years before), but I think it's a good thing that people are realizing how unacceptable it is to drive while impaired. The sentences will eventually stabilize toward some kind of standard, I assume this kind of thing (somewhat arbitrary sentences) happens whenever there is a large shift in how a given crime is viewed. Considering the nature of the crime though, I'm not going to shed a tear for Gallo doing a few more years than he might have gotten in another circumstance. I'll save my tears for the hundreds of thousands of people who are locked up for non-violent offenses.
For example, the former 100-to-1 crack vs. powder cocaine sentencing disparity is now only 18-to-1.
Neither ratio has any basis in fact or reason, but Congress decided a long time ago that crack is scaaaarier.
I kind of doubt that.
Actually, I've heard that quite a bit from the perspective of law enforcement officials. They claim that Miranda actually helped their reputation with the public now that there are supposedly safeguards to keep them from violating people's rights with impunity and that it made it easier to get convictions. I don't know if that's true but it's common reasoning. Not that that was why the Supreme Court ruled the way they did (although I haven't read the decision so I don't know exactly what, if anything, they said about that).
That part's true (including the "supposedly" part).
Of course, law enforcement fought it like CRAZY up until it sunk in that (1) most suspects will just blab, no matter what you tell them, and (2) no matter what a suspect says, law enforcement can find a way to use it against them.
They fought videotaping interviews the same way, and for the same reason -- and in the same way, videotaped interviews have tended to make it EASIER to get convictions, not harder.
Indeed, unless law school has changed since I was in it, retribution, rehabilitation, and deterrence are the three big prongs of penology.
Add protecting society from the criminal, and you have the 4 philosophical purposes of punishment.
In this case, a long sentence seems to be a combination of all 4, but protecting society is a major one. Given his long history, it doesn't seem like anything short of incarceration was going to stop Gallo from driving drunk,
I kind of doubt that.
Most murderers who set out to kill someone don't serve a lot more than 20.
I assume the ~52 years to Life max being cited is 17 to life for each count. I doubt the judge goes consecutive on the 3 sentences.
What is the big deal with having someone admit that doing dangerous things are dangerous and have consequences? It is not a forfeiting of rights it is a more like signing a waiver.
Except simply being irresponsible shouldn't be murder. In fact, the Cal Supreme Court had already affirmed that there has to be a high probability that death will result, not merely that it's dangerous.
It's not about liking Gallo or having sympathy, it's about being very careful with our criminal justice system. The state should have high hurdles to convict people of the crimes with the most punishment - it's burden of proof, not cakewalk of proof.
Fine.
Yes it is - see #46.
EDIT: for any law geeks who've got this far, the dissents in Watson are well worth checking out.
EDIT: If Fred Lynn is around, it would be great to hear from him w/r/t the "ifs" above.
That is how it works, yes.
Although this is just about making convictions easier, not impossible -- I'm sure the VERY rare defendant who clams up at the Watson advisement still has his convictions come in, general knowledge of MADD ads, etc., and that'd probably be enough for most judges & juries.
Aren't suspects often required to sign that they have been read their Miranda rights? How is this different?
He is acknowledging that he's been informed of the danger of DWI, and that he may be charged with murder if he does it again, and kills someone. How is that a "statement"?
Aren't suspects often required to sign that they have been read their Miranda rights? How is this different?
He is acknowledging that he's been informed of the danger of DWI, and that he may be charged with murder if he does it again, and kills someone. How is that a "statement"?
Because as far as I know, a) a suspect doesn't face punishment for refusing to acknowledge the Miranda warnings, and b) acknowledgment of the Miranda warnings isn't used to establish an element of a crime.
Well, according to Fred Lynn, the suspect doesn't face punishment. And if the suspect subsequently confesses, isn't the Miranda warning acknowledgment directly used in establishing the crime?
Correct.
The thing about his defense that bugged me was his claim that he had his stepbrother with him as his designated driver, and only took the wheel because the stepbrother was too drunk to drive -- only, this can't have come as much of a surprise, since the stepbrother had been knocking them back with him the whole time, shot for shot.
No sympathy for this guy -- with his specific combination of stupidity and callousness, removing him from the gene pool is quite all right by me.
We're getting dangerously close to the point where it's reasonable to actually read and cite relevant cases, and I hate to lose the winging it defense, but I think this gets it exactly backwards. In the article cited in #28, it indicates that Watson was convicted of 2D murder. The Cal SCt. said "certain behavior, such as drinking and driving, can show such conscious disregard for human life." (Quote is from the article, not the case.) Accordingly, the Watson warning does not provide for the element. The element can be established absent the warning. Indeed, the element can be established if there is no previous DUI at all according to the article. What the Watson Warning does is make it clear to the defendant that he is being given notice that he could kill somebody while drinking and driving, and be accused of 2d murder for that, and if he does- the law will assume that he knows such because (1) we told you so specifically the last time you were here and (2) we've done it before.
Considering that points 1 and 2 are not obvious (many here disagree with one or both) it would seem to me that the Court would have a duty to advise a pleading defendant that the Court has previously considered such convictions as evidence in a 2d murder case. The fact that the Court providing one with certain knowledge can be used as evidence, in a subsequent case, that one was, in fact, once provided with that knowledge- doesn't seem improper IMO.
EDITs for clarity
Yeah, the Miranda warning acknowledgement might be used to introduce into evidence a confession or any other statements made during an interrogation, but to me that's not the same as being used to directly establish one of the statutorily required elements of a crime--like the required mental state in this situation.
[87] I understand that the necessary mens rea can be demonstrated without the Watson warning. I have no problem with the judge's reading it to him being used as evidence of his knowledge. But I inferred from Fred Lynn's comments that it's not the reading of it, but rather the defendant's acknowledgement, that is used.
Should the parent receive a harsher punishment because they were drunk? Because that seems to be the argument in this case.
no the argument is that the parent shouldn't be punished at all BECAUSE IT IS NOT A PROBLEM TO KILL PEOPLE IF YOU GET DRUNK FIRST - unless you call community service/probation punishment
No, I don't think anyone is arguing that.
unless you call community service/probation punishment
That is punishment. Now, it might not be enough, but it is punishment.
if a person got drunk and drove and killed the person you love most in the world and the judge said, oh dear, guess you made a mistake, so you can go do some community service - you really think that is any kind of justice?
if a person got drunk and drove and killed the person you love most in the world and the judge said, oh dear, guess you made a mistake, so you can go do some community service - you really think that is any kind of justice?
There's a huge, huge gulch between "This case should've been manslaughter and not murder" and "This case should've resulted in the defendant getting community service."
But you are changing things, you said "punishment" before, not "justice".
In my head, I keep confusing Fred Lynn with Fred MacMurray, and it's causing a lot of weird images.
I've never had a client in this situation, fortunately (killing someone while DUI, with a prior DUI conviction). The overwhelming majority of DUIs are both the person's first DUI conviction, and also the person's only conviction ever for anything.
Anyway, for your (a), yes, that is generally how the gov't would use the Watson advisement.
FTA:
Which piece of evidence do you think the DA focused on at trial? If it were me, at closing argument I'd be waving around this piece of paper, "With Gallo's own signature, ladies and gentlemen, showing that he understood he could be charged with murder if he drove drunk again, and killed someone. And then he went out, got drunk again, got in his car again, and murdered these three people." Etc.
The Watson advisement certainly makes convictions easier, but even without it, you'd still have at least the DUI prior(s) to work with, which I expect would be plenty of evidence for most jurors.
As for your (b), whether there is punishment for taking the Fifth: not that I've ever seen. The judge might sentence that person more harshly if it's already a second or third DUI, for example, but I haven't seen that happen -- I can't remember the last time I handled a third DUI (if ever), and sentences for first & seconds tend to be very consistent within each jurisdiction.
It's just like the first time I came here, isn't it? We were talking about automobile insurance, only you were thinking about murder.
And I was thinking about that anklet.
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