When you practice law in the criminal defense area, much of your clientele is addicted to drugs or alcohol, many have prior criminal and juvenile records, and some have committed our society's most horrible offenses. Most criminal defense attorneys face the challenge of attempting to portray their client as a "nice guy" or, in some cases, a "victim" of the incident. It's the rare occasion when the general public, local law enforcement, and the prosecuting attorney all agree with that portrayal.
In early January, 1998, I was hired by a client who was a genuine "nice guy." Like most who know the circumstances that led to his arrest, I believe he was also a "victim." He was a victim of very unfortunate circumstances, a victim of his and his hunting companions' illegal conduct, and a victim of his less-than-cautious actions.
When I first met with my client I observed a well dressed, articulate, and sincere young man. I learned he was married, had a three-year-old daughter, had a prior military background, was well employed in the Missouri mining industry, and was an avid sportsman. He was not my typical client. At our first meeting he openly told his story.
On December 13, 1997, my client and five of his friends were hunting deer in rural Iron County, Missouri. He freely admitted the post-season deer hunt was illegal as was the technique they were using. Each hunting participant was equipped with a vehicle, a citizen's band radio, and a high-powered rifle. Hunting dogs had been released and were actively searching for the scent of deer.
The young men listened as the dogs signaled they had hit a hot trail. In constant radio contact, the men traveled the gravel roads and parked near likely crossings waiting for the dogs to drive a deer into the open.
Shots rang out. Game was on the move. Radio activity increased as the young men attempted to determine who had fired. My client had heard the shots and determined they had come from farther down the ridge. He radioed the others and advised he would drive down and check out the area.
As he drove down the ridge, he saw one of his companion's truck. He stopped behind the truck, got out, and heard the dogs "strike red hot" in the hollow below. Deer would certainly be coming out of the hollow! My client grabbed his Remington, Model 700, .270, in anticipation of getting a shot. As he neared the back of his truck, the circumstances clearly indicated a strong likelihood of hunting success.
Someone had already fired shots, the dogs were running hot, game was moving, my client's adrenaline was pumping, and he knew if he saw a deer he would only have a brief moment to get off a shot. Then...there it was! Up through the brush, over a hundred yards away, he saw it! A deer was running through the brush to get away from the dogs. With no time to delay, he raised his rifle, looked through his scope, and with the sun slightly in his eyes located his target and squeezed his trigger.
As quickly as it had appeared, the deer was gone. Knowing the deer was headed for the road, he got back into his truck, backed up the road, and looked for where the deer might have crossed. When he finally determined the deer had not crossed the road, he stopped, got out of his truck, and started walking towards where the deer was located when he shot.
With excitement and anticipation he looked for a blood trail or the fallen deer. With shock and horror he found the dead body of one of his hunting buddies. A .270 bullet from my client's rifle had passed through the young man's chest, killing him instantly. The deer my client had seen was actually his friend in light brown coveralls. The dead man was only 23 years old, had a wife and two small children.
The day had turned from a lighthearted and exciting outing with friends to the last day of a young man's life and the first day of my client's life with the knowledge he had killed his friend. It was also my client's first introduction to the criminal justice system.
My client was read his rights and interrogated. He was subsequently charged with involuntary manslaughter, arrested, fingerprinted, his mugshot was taken, and he was required to post a cash bond. A true "nice guy" had now been labeled as a criminal and was facing a felony conviction and seven years in prison.
Under Missouri law, "A person commits the crime of involuntary manslaughter if he: (1) Recklessly causes the death of another person;...." Did my client act recklessly? That was the technical legal question. Missouri law states, "A person 'acts recklessly' or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."
At the preliminary hearing the State presented its evidence. We did not dispute the facts. My client had, in fact, caused the death of his friend and he had given a full confession. We simply argued that my client was not aware of a "substantial and unjustifiable" risk and was, therefore, not reckless. We received support for our theory from the witnesses' testimony that the victim was wearing brown coveralls that "did look a lot like a deer" and he was not wearing any hunter orange.
The judge disagreed and found that there was "reason to believe" my client was "reckless." The basis of the ruling was the fact my client was aware the victim was near because he had heard shots in that area and had parked behind the victim's unoccupied truck. When he took the shot, the judge stated, he should have been certain of the identity of his target. My client was bound over to stand trial in the circuit court. Any negligence on the part of the victim did not excuse my client's actions.
At this point, my client had already punished himself, and would continue to punish himself for the rest of his life for what he had done. He had paid thousands of dollars in defense fees, was looking at thousands more in additional fees, and he also faced a felony conviction and seven years in prison. Fortunately, the prosecuting attorney, the deputy sheriffs, the conservation agent, my client, and I found some common ground. We agreed the victim's death was a horribly unfortunate accident, and we would all like to see some good come of the tragedy. We agreed the most important thing we could do for society would be to make sure this story was told. Our hope was that by having it told, lives would be saved in the future.
The prosecuting attorney eventually agreed to a very generous and unprecedented resolution to the case. He agreed to dismiss the involuntary manslaughter charge if my client would comply with several conditions. The conditions were:
- To refrain from violating any Federal, State or Local laws;
- To notify the Circuit Court of Iron County, Missouri, of any change of address, change of employment, or arrest for any cause;
- To plead guilty to the misdemeanor charge of attempting to take deer in closed season and pay a $500.00 fine;
- To attend and speak about his involvement in the fatal hunting accident at the Missouri State Hunter Education Association Conference in January or February of 1999;
- To participate in and be the subject of a video production for the Hunter Accident Investigation Academy relating to his involvement in a fatal hunting accident and to allow the Missouri Department of Conservation to use any videotape(s) produced for any purpose deemed appropriate by the Missouri Department of Conservation; and
- To voluntarily relinquish his Missouri hunting privileges for a period of three (3) years without the necessity of a hearing and waive such hearing and all appeals of such revocation.
Although he will not have a felony conviction on his record and will not serve time in prison, he certainly got to look that potential square in the eye. Will future individuals who cause hunting fatalities be treated in a similar fashion? I seriously doubt it. I believe our society, our law enforcement officers, and the Missouri Department of Conservation are ready to do whatever it takes to send the message that "recklessness" will not be tolerated in hunting situations.
The State of Missouri and the Missouri Department of Conservation have plenty of tools to send that message. One of the most effective tools is the Missouri Hunter Education Program. This program has, no doubt, saved lives. But education without personal responsibility can only go so far. If we, as hunters, do not exercise personal responsibility, the State of Missouri must use the other tools in its arsenal. Those tools will, most certainly, include felony convictions and prison time, even for "nice guys."
Yes, my client is a "nice guy" and he is a "victim." He's a victim of the negligence of another, a victim of unfortunate circumstances, a victim of his own criminal conduct, and a victim of a decision he made that some feel amounted to "recklessness." He now awaits his opportunity for redemption. He is ready to tell his story. We hope his story will add an additional element of realism to Missouri Hunter Education. We also hope to inspire personal responsibility. But, most importantly, we hope lives will be saved in the process.
I'm certain when my client tells his story he will say exactly what he said at our first meeting; "I never thought it would happen to me." It seems nobody ever does.
*****************************Mr. Parker is the former prosecuting attorney of Dent County, Missouri and currently serves as Vice-Chair of the Criminal Law Committee in the Missouri House of Representatives. He is a member of the National Association of Criminal Defense Lawyers, Missouri Association of Criminal Defense Lawyers and the Missouri Association of Trial Attorneys.