We don’t really care about Errol Maul

Posted in OPINION to Moëtry in the Potion by Rob McColley on Wednesday, June 1, 2011 at 10:00 am

It's a great time to be furious with our local legal system. We're seeing a lot of repeat offenders, and repeat offenses, in Champaign County.

Drug-addled ex-schoolteacher Mark Ohrnstein (pictured) makes the news like clockwork. Every two years he's prosecuted for the same crimes.

The Mike Sola perp, Kiwane Carrington's associate Jeshuan Manning-Carter (and his mother) — and a seemingly endless parade of perps "well known to the police" for their perpetual erosion of east Urbana — incite regular Willie Hortonesque and "revolving door" responses from The People.

If you hadn't guessed, the description "well known to the police" seeks a reaction: Why then is Offender X not well known to the Department of Corrections?

Is the system too lenient?

State's Attorney Julia Rietz takes much heat from Smile Politely. She doesn't prosecute offenses to the extent it wants.

While theoretically projecting the live-and-let-live tolerance associated with progressive liberalism, the petit cabal of leftist agitators grows downright Nixonian when law and order affects them in practice. Three vehicular offenses against bike riders garnered three slapped wrists. Two of them were homicides. "How can you not charge homicide in a homicide case?" the cycling community clamored, extremely out-loud.

FOR WHOM THE BELL RINGTONES

I don't disagree with Ms. Rietz's approach re: Errol Maul. I'm less comfortable with the disposition of People v. Jennifer Stark. The following quote especially bothered me.

Rietz:

Matt Wilhelm, 25, died on September 8, 2006, after he was struck by a vehicle on September 2 while riding his bicycle on Illinois 130 in Champaign County. The driver, Jennifer Stark, 19, admitted that she had been distracted by her cell phone and left her lane. When she looked up, she saw Matt, but was unable to get out of his way to avoid hitting him.

...

Reckless Homicide requires a finding that the accused acted purposefully, with a knowing acceptance of a specific risk, and with willful and wanton disregard for the safety of others, when causing the death of another. Following extensive research, consultation with other prosecutors, judges, and attorneys, we determined that Ms. Stark's actions, while clearly negligent, did not rise to the level of recklessness as it has been defined in the statute and in case history, making a Reckless Homicide conviction unlikely. (Entire statement here.)

If there's anything I remember from law school, it's varying levels of culpability. "Reckless" ≠ purposeful.

I searched Illinois Appellate Courts cases for anything supporting Rietz's strategy, and came up empty. So I queried.

Rob:

Are you interested in directing me to the case law supporting the bolded portion? It contradicts everything I learned about mens rea.

Rietz:

When I said "acted purposefully, with a knowing acceptance of a specific risk, and a wilfull and wanton disregard for the safety of others," I was referring to a mental state that is a step below "intentionally" or "knowingly" committing a specific act with the intent or knowledge of a certain or likely outcome. To be clearer, like with Matt Wilhelm's case, there is no evidence that Errol Maul knew David and Cindy Combs were there, and acted recklessly. Many people say he should have known they were there, but that is not evidence saying that he did know there were there. Moverover, isn't that the definition of negligence? Acting other than with the ordinary standard of care expected for that situation? So, perhaps the outcome would be different if he were driving through campus, where there are bike lanes, and pedestrians, and arguably you would be acting with a knowing acceptance of a specific risk, namely hitting someone, if you were doing something other than paying close attention to the driving (like the woman up north who was painting her nails while driving on a six lane highway with multiple red lights and hit a motorcyclist who was stopped at an intersection). A country road is different than a crowded highway in that respect. Perhaps someday the legislature will say otherwise, but at this point they have not and neither has the appellate court.

Rob:

I Booleaned ["willful & wanton" + "reckless homicide"] on the Illinois courts website and found only a handful of cases, none on point. I was hoping you'd have a case name sitting right in the front of your brain.

Rietz:

There are not many cases on recklessness, which is part of the difficulty.

Thus, my perplexion remains unsatisfied. We The People wanted Jennifer Stark to suffer the pain of prosecution, especially because she infamously lamented (on her MySpace page) that the accident had "ruined my life."

But jailing Stark won't deter other self-infatuated teens from idiot driving. Only when Stark kills another cyclist will we know her punishment was insufficient.

Errol Maul is fucked for life. Unless he lacks a conscience, he'll be haunted by his reckless homicide until he himself dies.

I know, that's not good enough. We want him überfucked.

But prison is expensive. Also, I have no reason to believe Errol's a bad guy. He may not even be dangerous, if we assume that he will never again read plat maps while driving country roads. He made a mistake that we, as a society, allow people to make. It's our liberalism.

I like it that these conflicts are settled in civil court. Jail is a good place for Errol Maul to spend a brief time, just so he knows how we feel about his dereliction. By the time we've forgotten, he'll be out. In other words, somewhere between an hour and a weekend.

On the outside, Errol Maul can earn a living — a significant portion of which will go toward a lifetime's worth of enormous insurance bills. His insurer will be paying for the pain, suffering and hospitalization of David Combs; and for the wrongful death of Cindy Combs.

THE HANGING JUDGE

Rietz's predecessor, John Piland, took the opposite approach. He pulled a legal rabbit out of his prosecutorial hat, securing a first-degree murder conviction in a case that might easily have been plea-bargained to manslaughter.

Piland's magic was not overturned by a higher court. Perhaps because, as his current web page touts, he's a 33° Mason.

The People seemed to like it. Piland won re-election.

Four years later, Piland was ousted at the polls because (according to some) he didn't prosecute Luther Head, Aaron Spears and Rich McBride for burglary. In that case, Piland's hands were tied. I don't know what settlement the victims made with the offenders. Their reluctance to testify allowed Bruce Weber a Final Four.

The deceased in Piland's homicide was Ernest Seri. Seri was killed after starting a fight with bouncer Rob Jurkacek at The Gypsy, now Mike n Molly's.

I occasionally bartended at The Gypsy. I worked with Jurkacek and his co-defendant (the delightful if very big, and justly acquitted) Rubin Navarette.

Jurkacek was a poster child for ‘roid rage. Also, as a Balkan immigrant, he had a lot to be angry about in the 90s. He reacted violently to being punched in the side of the head by a notorious ne'er-do-well. (Seri was kicked out of his recreational soccer league for habitually starting fights. The News-Gazette invariably reported that Seri was out with his girlfriend at the time of his death, while also noting that his wife and child were at home. In his defense, I should add that Seri was not allowed to be with them. Laura Seri's two-year protection order would have expired the following month.)

Thirty seconds of anabolically informed judo followed Seri's sucker punch. The mortal blow was a kick to the face.

I was studying for the bar exam that night. I'd passed it by the time the case went to trial. My knowledge of Illinois Criminal Law was at an all-time high. There's no way Jurkacek's reaction amounted to first-degree murder. That level of mens rea is, and has for centuries been reserved for cold-blooded killers. "Heat of passion" killings are always, always second-degree murder.*

(720 ILCS 5/9‑2)

Sec. 9‑2. Second degree murder.

(a) A person commits the offense of second degree murder when he or she commits the offense of first degree murder as defined in paragraph

(1) or (2) of subsection (a) of Section 9‑1 of this Code and either of the following mitigating factors are present:

(1) at the time of the killing he or she is acting

under a sudden and intense passion resulting from serious provocation by the individual killed ...

And yet Piland secured a conviction. So Rob Jurkacek is growing old in prison. Is that good?

Well, we don't really care about David and Cindy Combs, and we don't really care about Errol Maul. So we certainly don't care about a thuggish immigrant who likes fighting.

But we do care about ourselves. You, reader, tend to think of yourself in the best light; you identify with the victims, not the perpetrators.

To understand the way the State's Attorney executes her job, you have to think of yourself as David Combs and Errol Maul. Now how do you want the government to act?

I'll answer for you, tomorrow.