Katman's Corner

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From Midwest Motorcyclist January/February 2004
<www.midwestmotorcyclist.com>
KATMAN’S CORNER

by Lawrence Katkowsky, Esq.

On December 10, 2003, Congressman Bill Janklow (R South Dakota) was convicted by a hometown South Dakota jury of manslaughter, reckless driving, speeding, and running a stop sign. The convictions stemmed from the killing of 55 year old motorcyclist, Randy Scott in a collision at an intersection near Janklow’s home town of Flandreau, SD.

The conviction was obviously well warranted. But the case highlighted a question that has been put to me many times about the criminal prosecution of persons for auto related crimes resulting in serious injury or death to motorcyclists and the relation of those prosecutions to civil liability for damages.

The filing of civil cases for damages for such accidents is controlled by private plaintiffs and their attorneys. However, in criminal cases the Plaintiff is the state or local governmental unit, i.e., The People. The discretion for filing serious criminal charges (felonies and serious misdemeanors) is vested with the people’s attorney, either the state attorney general or county district for prosecuting attorney upon the filing of a complaint with his/her office. While the complaint is usually filed by an investigating police officer it can also be filed by a private citizen. It is important to know that in almost all state jurisdictions including Michigan where I practice, the attorney general or prosecuting attorney’s discretion is absolute. He cannot be forced by suit of a private person to file a complaint. That fact was made clear by the Michigan Supreme Court almost 20 years ago.

There is another method of initiating criminal charges: The convening of a grand jury. However, in Michigan and most states, that can only be done on petition from the local prosecutor or attorney general. Michigan has a seldom used statute which enables a Circuit Court to convene a one-man grand jury. But that is rarely used at all, usually only in cases of alleged public corruption.

Several years ago I was involved in the traffic death of a motorcyclist’s passenger who was killed when a local school board official turned left in front of the motorcycle on which she was riding. The local investigating police officers and the state police who they brought in to investigate recommended filing negligent homicide charges against the car driver. The local prosecutor (it was an upstate Michigan county which was mostly rural) procrastinated for over 1 1/2 years over whether or not to initiate a prosecution. Not being able to make up his mind (he was of limited experience and capability) he sent the package to the Michigan Attorney General’s office for advice.

They advised him not to file the prosecution. They explained to me that it was their practice not to initiate criminal prosecutions for negligent homicide or manslaughter involving motor vehicles unless the defendant was guilty of some sort of ‘culpable’ conduct. By ‘culpable’ conduct they meant it to mean overt acts such as speeding, drunk driving, running a stop sign, driving without lights on, etc. They reasoned that in cases such as mine where the defendant simply did not see the motorcyclist before making her turn, and was not otherwise doing the forgoing wrongs, they would not prosecute for the felony. Of course that still left open the ticket for failing to yield.

Of course my clients were not satisfied. The conduct of failing to yield because she failed to see what was there to be seen falls squarely within the negligent homicide statute.

What can be done in such cases? If the case is highly publicized the community outrage is evident, the prosecutor could be pressured into prosecuting when he or she otherwise might not. Or they might just turn it over to the state attorney general’s office to get it off their backs and hope the case goes away. Motorcyclists can keep the pot boiling by continuing to write to their local, state, and federal politicians. Sometimes that works. In the recent shooing death of a Detroit motorcycle club member by Eugene Brown, an infamous and still-employed Detroit cop, a prosecution was never started. But the city of Detroit just paid millions to the clubber’s widow and children.

Which brings us to that point. There is no legal relationship between the criminal auto related offense and the civil one for damages (except in malicious prosecution suits which are not a subject of this article.) Therefore, the fact that a criminal prosecution is not brought, or is lost by an inept prosecutor even if brought, does not have a bearing on the civil suit for damages. As an attorney I am always interested in the criminal prosecution because the testimony by the witnesses and defendant is relevant in the civil case in a number of ways: The criminal case can tell us how strong our civil case will be from a standpoint of liability. Any admissions that the defendant makes in the criminal case, either in their testimony or in the statement to the court of what they did on a plea can be used in a subsequent civil case. But the fact of conviction or the taking of a plea of no contest, if allowed by the criminal court, cannot be introduced into the civil case.

By the time you read this article, I hope that former Rep. Janklow is in jail. I just wish that the same could be said for numerous other such offenders around the country.

Until next time, ride safe and free.

Lawrence S. Katkowsky, known as Katman in the motorcycling community, is an attorney with a litigation practice that is heavily oriented toward motorcycling issues and has an office in Bingham Farms. One of the incorporators and legal counsel of A.B.A.T.E. of Michigan, Inc. Larry has been actively involved in the motorcycle rights movement in Michigan, and nationally, for more than 25 years. His presence is respected both in the Courts and on the legislative front and he has written extensively on motorcycling issues. Larry is a certified motorcycle safety instructor and currently plates a 2003 Harley-Davidson V Rod, a 1987 Harley-Davidson FXRT, and a 1993 Harley Dresser. An avid guitarist and singer on the side, Larry and his wife, Natalie, live in Huntington Woods.