Editor’s note: This piece is by Cara Cookson is from the Supreme Court of Vermont Law Blog.
State v. McCarthy, 2012 VT 34
Sometimes a case comes along that reminds us of just how much the legal “system” is really just a set of laws and procedures that humans created, that humans carry out each day. The “system” is not a machine, and the people responsible for making it work are, well, people.
This case involves a deputy state’s attorney who is someone’s neighbor, a judge who might be a witness, and a jury comprised of ordinary citizens entrusted to make a very, very difficult decision on our behalf. And although it doesn’t appear anywhere in the opinion, we would be remiss if we didn’t note that this case also involves a federal judge — the first woman to take the federal bench in Vermont — who is also a daughter. All very delicate things, important to remember. Try as we might to separate it all, human emotion and human intangibles are inherent in the law, just as they are in ordinary life.
In fact, a human error — which caused a most severe and unintended consequence — brings us here. Defendant, Joseph McCarthy, was convicted with involuntary manslaughter after he set up a shooting range on his property. He invited friends to come and fire their guns, and an errant bullet struck and killed his neighbor, John Reiss — a beloved St. Michael’s College professor and the father of the Honorable Christina Reiss.
According to the SCOV’s take on the evidence, McCarthy had completed a hunter safety course just 10 days prior to mowing an area behind his house and setting up targets on tree stumps. Then, he invited friends over, and they took turns firing their weapons, including an “SKS-style semi-automatic rifle.” Three people, including McCarthy, fired the SKS on the day in question. McCarthy had “little experience” with this type of high-powered rifle, and he knew nothing about his friends’ shooting ability. Behind the target was a small stone wall, a sparsely wooded area, and an open field — no hills or berms to catch a stray bullet.
Approximately 250 yards away stands the Reiss house, which one can see from McCarthy’s backyard. From the shooting bench where the shooters set up their guns, the difference in angle between the Reiss home and the target was six degrees — if the shooter pointed the gun barrel three inches to the right of the target and just under an inch up, the shot would hit the neighboring home. On the day in question, one of the shooters observed the house and asked McCarthy about it, and he insisted that the trees and hills made the arrangement safe. McCarthy admitted that he “had no way of knowing whether he or his fellow shooters would consistently hit their targets” and he “acknowledged that he should have been aware of the fact that a bullet could go high and to the right, leaving nothing to stop it.”
A bullet fired from the SKS rifle struck and killed Mr. Reiss while he ate dinner in the dining room of his home. Initially, the shooters didn’t realize what had happened; no one knows who fired the fatal shot.
McCarthy was charged with involuntary manslaughter under the theory that he acted with criminal negligence when he set up the range in an “inherently dangerous” location and allowed the shooters to discharge their rifles. The jury found McCarthy guilty on this criminal charge.
The most important question raised on appeal is whether the evidence offered by the State was enough to support McCarthy’s conviction. If all the different types of legally recognized wrongs committed against others were placed along an imaginary horizontal line, we would place intentional, premeditated murder at one end. This is the far criminal end of the spectrum (yes, civil liability can still attach here, too. Think “O.J. Simpson.”) carrying with it the possibility of the worst criminal punishments. At the other end, we have simple negligence — someone failing to observe a recognized safety rule that any reasonable person would have followed resulting in harm to someone else, but without intent to cause harm. This is the purely civil end of the spectrum, carrying the possibility of monetary damages and usually not much else. Somewhere in the middle, we find involuntary manslaughter or criminal negligence, the place where despite how unintended the result may have been, the underlying act is so egregious that we attach criminal liability to the death that it caused.
Causation — an element that must exist no matter where the “wrong” lies along the spectrum — is the notion that the harm must be directly linked to the wrongful act, otherwise the person who acted should not be held responsible. According to the SCOV, McCarthy claims that in his case, the causal connection between his actions — setting up the range and allowing his friends to shoot — is too removed from the resulting harm to Mr. Reiss, and therefore, McCarthy did not commit a crime.
At first glance, the fact of an innocent person’s death would appear to make the risk of such an outcome obvious. But what matters is the likelihood of such an outcome. It boils down to a comparison of imaginary odds, and it requires the jury to step back from what actually did happen to consider what could have happened.
The SCOV did find sufficient evidence of causation. But the SCOV focused more directly on a separate issue as well: whether McCarthy’s conduct constituted such a gross deviation from what a reasonable person would do that he should be held criminally responsible and whether the jury could find that he acted unaware of the risk of death to that same degree. This question can become rather vexing in retrospect. At first glance, the fact of an innocent person’s death would appear to make the risk of such an outcome obvious. But what matters is the likelihood of such an outcome. It boils down to a comparison of imaginary odds, and it requires the jury to step back from what actually did happen to consider what could have happened.
Upholding McCarthy’s conviction, the SCOV emphasized that while he did not intend to harm his neighbor, the evidence was such that the jury could find that he acted in complete disregard of the risk that this type of accident might happen. The backyard shooting range was located in a suburban neighborhood. McCarthy had completed hunter safety just 10 days prior. He knew the SKS rifle was “a pretty powerful gun” and completely inappropriate for the setting. He allowed people to shoot without knowing how well they could hit a target. He was concerned about the SKS, but he let the group continue with it anyway. The SCOV deemed this conduct criminally negligent.
As to the causation issue, the SCOV emphasized that the defendant’s conduct need not be the sole cause of death. “[A] defendant may be convicted of involuntary manslaughter for the course of events which naturally follow from his or her actions even when the actions were not the sole cause of the harm.” The defendant need not have fired the fatal bullet, so long as he set in motion the unbroken chain of events that caused the victim’s death.
The remaining issues in this case offer insight into the role of judges and juries that we don’t tend to see very often. First, the SCOV affirmed the trial court’s decision to allow the jury to participate in a site visit of McCarthy’s home and concluded that the site visit instructions and the way the visit was ultimately conducted did not amount to an abuse of discretion on the part of the judge sufficient to require a new trial. The SCOV found no issue with a juror who appeared to be re-enacting the shooting during the jury view, nor did it find improper extraneous influence resulting from the small groups of jurors who wandered around the site on their own.
McCarthy also claimed that the judge “impermissibly assumed the roles of an advocate and a witness by recording observations on the record, out of the presence of the jury, about the conduct of the site visit.” The concern here arises from evidentiary and judicial ethics dictates against judges participating as witnesses. The SCOV found that the judge’s observations on the record, after the visit occurred, did not constitute improper testimony. The SCOV did advise that the “better practice” would have been to arrange for a video recording of the event.
Finally, the SCOV addressed McCarthy’s concern that one of the jurors had a one-on-one conversation with a prosecuting attorney during the site visit. As often happens in Vermont, the juror knew the attorney from church, and they exchanged pleasantries. Defense counsel requested an examination of the juror after this encounter, and the SCOV found that the juror’s assurances that she would be able to act impartially were sufficient to cure any impact from the conversation. The SCOV rejected McCarthy’s argument that the relationship between the two automatically indicates an implied bias as a matter of law.
No doubt that folks milling around any Vermont general store or café would offer quite a range of opinions about whether the jury reached the “right” conclusion or whether McCarthy should have been charged in the first place. To some extent, those past and future jurors prove our point: the “system” is only human in the end, and we each have a role to play in making it work.
