DRUNK DRIVING/MATT CORDLE PROSECUTION/SENTENCING PERSPECTIVES

ONE VIEW IN OHIO

Assuming you’ve had some sort of media interaction since September, you are most likely aware that Matthew Cordle made an online You Tube video confessing to killing Vincent Canzani while driving drunk on the wrong side of I-670 outside of Columbus, Ohio on June 22nd. Cordle pled guilty to aggravated vehicular homicide as well as operating a vehicle under the influence of alcohol.

Aggravated vehicular homicide, under O.R.C. 2903.06, is a felony of the second degree that imposes a mandatory minimum sentence of two years with a maximum of eight years. In light of Cordle’s confession and cooperation, his lawyer seeks a sentence closer to two years, while the prosecution seeks the maximum sentence for Cordle. What is a realistic sentence for Cordle?

Across the nation, it is estimated that 10,000 people annually die in alcohol related crashes, that’s thirty percent of all fatal crashes. Ohio has a serious problem with drunken driving. According to a report from Dayton Daily News, almost one million Ohio drivers have had their licenses suspended for drunken driving. Out of those one million drivers, 266,000 Ohio drivers have received three or more drunk-driving suspensions. Four out five alcohol-related suspensions were issued to male drivers. In 2012, 441 traffic accidents caused while operating a vehicle under the influence resulted in the death of 482 people, an increase of 16 percent from the previous year. See this State Highway Patrol Report

Jennifer Jilek, of Richfield, Ohio, was sentenced to ten years after she struck and killed Charlene Kuzda with her car while driving under the influence of alcohol. Kevin Dehass, of Hillsboro, Ohio, pled guilty to aggravated vehicular homicide. The second degree felony was dropped down to the third degree as a result of the plea deal. He was sentenced to the maximum five years and a lifetime suspension of driving privileges.

To attempt to address the continuing problem of fatal accidents resulting while driving under the influence, Ohio updated the penalties for vehicular homicide in 2007.

O.R.C. 2929.11 states the sentencing court should consider “the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.” The felony sentencing shall also “commensurate…the seriousness of the offender’s conduct…” The purposes for sentencing under O.R.C. 2929.11 are mainly utilitarian in theory and focus on the future in order to protect the public and prevent future crime.

Considering Ohio’s high volume of offenders with multiple drunk-driving suspensions and the purpose of sentencing, I would predict that Matthew Cordle receives a prison term closer to the maximum rather than the minimum sentence. A longer prison term is needed to deter the hundreds of thousand of Ohio drivers who repetitively get their licenses suspended, to commensurate the seriousness of taking someone’s life and to protect the public from future fatal accidents overall.

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ANOTHER VIEW IN OHIO“I was out with some friends, we were all drinking really heavily, just hopping from bar to bar, just trying to have a good time, and I lost control.”

On June 22, Matthew Cordle drove his car the wrong way on I-670 in Columbus, Ohio, which resulted in the death of 61 year old Vincent Canzani. Almost three months later, Cordle pled guilty to killing Canzani, but not until after posting a YouTube confession where he said he would be accepting full blame, and not attempting to get off. In two days the court will announce the sentence for his aggravated vehicular homicide crime, which could be anywhere between two years and eight and a half. Franklin County Prosecutor Ron O’Brien is looking for the maximum punishment.

“On that particular night, I made a mistake and got in my truck.”

Cordle’s actions are not that of an isolated incident in Ohio: 316 people died in alcohol-impaired accidents in 2011. Ohio police also arrested 36,538 drivers for driving under the influence in 2011 (The Century Council). The risks of drunk driving are known by virtually everyone, and it would be hard pressed to find someone who had not seen the recent promotion of Ohio’s “Drive Sober or Get Pulled Over” campaign. When drivers put themselves in situations where they will drive after becoming intoxicated, they are consciously putting themselves and others in danger.

“Completely blacked out and decided to drive.”

According to Baldwin’s Ohio Practice Criminal Law, there are already some mandatory sentences set in place for these types of accidents. ORC 4511.99(A)(4)(a)(i) establishes that operating a motor vehicle while intoxicated is a felony of the fourth degree, but only if the driver has had three or more drunk driving convictions in the past six years, or already has a conviction of involuntary manslaughter while drunk. When someone pleads guilty to a fourth degree felony, they have a mandatory term of local incarceration or imprisonment from 60 to 120 days, whereupon the judge may add another six to 30 months. This is of course only in regard to driving while intoxicating—not killing someone—but something I just cannot wrap my mind around is that these people are still allowed to have drivers licenses after having three or more drunk driving convictions.

“I killed a man.”

Aggravated vehicular homicide convictions carry a mandatory two to eight year prison term. Closer to two tends to be given to first time offenders, while closer to eight tends to be handed down to repeat offenders. Cordle is a first time offender. Before being convicted, he posted a video confession on YouTube which launched this case into the national spotlight. As of writing this, it sits at 2,305,400 views.

“I consulted some high powered attorneys.”

Cordle is a man who is claiming that he would like to take full responsibility of his crime. He is also telling us in this confession, that he has “consulted some high powered attorneys” and that he does not want to attempt to “get off.” If he wants to take full responsibility for his actions, and he wants to set a strong example for others that driving drunk is bad, why did he keep his lawyers around? Why is he still trying to get his sentence mitigated? If he really wanted to set a strong example, he would take the maximum punishment and make an example out of himself.

“Sometimes I drink because I have depression.”

I want you to re-watch this video. I want you to look at the craftsmanship that has gone in to it. Listen to the sounds. Note the close up shots to his body. Awfully dramatic isn’t it? Cordle tells us he has depression. That he hates himself when he drinks—yet he continues to do so anyway. That he’s “begging” us not to make the same mistake he made. The camera constantly cuts to his left arm showing what looks like a massive burn, most likely

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from the accident. Why are we getting all this? To make him out as a victim. He wants us to feel bad for him. Because everything he has already gone through has been punishment enough. To me, it seems like a genius way to try to get a lower prison sentence by getting under everyone’s skin.

“I take full responsibility for everything I’ve done to Vincent and his family.”

Finally, I want you to think about YouTube and why it is used. The whole point of YouTube is to rack up views and become popular. Sure, it is sometimes used by politicians or others to get out messages, but more often than not, it is used by comedians, bands, and cats playing instruments for the sole purpose of becoming famous. By putting this on YouTube and getting 2,305,400 views, he is putting the elected officials in charge of his sentencing in the public eye when determining it. Will they find it believable? Should his confession mitigate the sentence?

“All I would have to do is lie. But I won’t go down that path.”

I sure hope not. This could set a terrible example that anyone who posts an apology confession on any social media site should be held less liable for their actions. Posting a confession like this on a social media site does not make you look like you care, it seems fake and like they are craving attention. Even when the censor from Cordle’s face is removed, it is hard not to see his giant smirk. This all comes off too staged and geared toward gaining sympathy. All the censoring, background music, cheesy cinematic cuts, and hopping onto a social movement website (because ending your piece with a Twitter hashtag is not only serious, but professional) rings a little insincere to me, and I hope the judge sees through this, and throws the book at him.

#saveyourvictim

AND ANOTHER VIEW IN OHIO

Sentencing Matthew Cordle to the maximum penalty allowed by the state of Ohio would not properly fulfill the goals of Ohio’s sentencing laws. The media attention to this case has focused on the motivations behind Cordle’s Youtube video instead of the appropriate way to satisfy the affected victims and appropriately punish the offender.

Certainly Cordle cannot be equated to the worst of the worst offenders of aggravated vehicular homicide when we consider he saved the state resources by admitting his guilt, self-initiated his rehabilitation, and began his own personal campaign for deterrence.

This case will not create a precedent for the viral video defense. This video is simply an insight into the background of a felon. It will be one of dozens of contributing factors Judge David Fais will consider when determining the appropriate sentence. Judge Fais made it clear that he intended to view the video (18:45 for quote) prior to sentencing and that it would be utilized to gain additional information. This is no different than the purpose of any presentencing document. The court will not be affected by view count, up-votes, or advertisements, only the video’s content, specifically, its demonstration of remorse. A judge shall not be swayed by public clamor or fear of criticism (Rule 2.4 Ohio Code of Judicial Conduct).

Mathew Cordle pled guilty to aggravated vehicular homicide and operating a vehicle under the influence of alcohol. Aggravated vehicular homicide is a felony in the second degree that requires a mandatory prison sentence of at least two years and no more than eight years imprisonment, a fine not greater than $15,000.00 and loss of driving privileges for life. Operating a vehicle under the influence of alcohol is a misdemeanor in the first degree that is punishable, in this case, by a maximum six-month sentence.

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Sentence Overview

Minimum: 2 years and lifetime loss of driving privileges.

Maximum: 8.5 years, lifetime loss of driving privileges, restitution payments, and a $15,000.00 fine.

Franklin County Prosecutor, Ron O’Brien, seeks the maximum penalty for Cordle and requests the prison sentences run concurrently. O’Brien’s recommendation is influenced by recent trends for more strict sentences (recently, thirteen similar crimes in Central Ohio have averaged sentences of nearly eight years), Cordle’s refusal to submit to a blood alcohol test, and Cordle’s level of remorse.

Cordle’s defense attorneys are requesting a much lower sentence although they do not specify a length in their filing. Cordle’s defense attorneys base this recommendation on Cordle’s willingness to accept responsibility for his actions, Cordle’s cooperation with authorities and Cordle’s previously clean criminal record.

Ohio Revised Code (ORC) § 2929.11(A) explains purposes for felony sentencing are to protect the public from future crime by the offender and others and to “punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing unnecessary burden on state or local government resources”. The ORC requires the sentencing court to consider 1) incapacitating the defendant, 2) deterring the defendant and others from committing future crime, 3) rehabilitating the defendant, and 4) providing restitution to the victim, the public, or both when determining a punishment. (ORC § 2929.11(A))

By establishing a sentencing range the legislature offers the court the opportunity to determine a punishment that most closely comports with the necessary sentencing purposes: protecting the public from future crime and punishment for the violator (ORC §2929.12(A)). It appears the legislature is allowing courts to distinguish between offenders by assigning different levels of punishment for the same felonious violation.

It would seem, considering the factors mentioned above, the maximum sentence recommended by O’Brien would not achieve the felony sentencing purposes expressed in ORC § 2929.11(A). The range of aggravated vehicular homicide punishments should reflect the range of culpability amongst aggravated vehicular homicide offenders.

A decision for a maximum penalty is certainly the most appropriate way to deter others from committing similar crimes as well as the longest way by which to incapacitate Cordle. However, a maximum sentence does not appear necessary to deter Cordle from committing future criminal acts nor does it appear necessary to establish a sufficient time for rehabilitation. Therefore, a maximum sentence is not required to “punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing unnecessary burden on state or local government resources” (ORC § 2929.11(A)).

Incapacitation

Imprisonment certainly seems like the most effective way to stop Cordle, or any person, from committing criminal actions. A maximum penalty would probably serve as the most effective means to prevent Cordle from committing another aggravated vehicular homicide. However, a lifetime suspension of Cordle’s license is a viable way to ensure that Cordle does not have the means to readily commit

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similar crimes by restricting his ability to operate a motor vehicle. Although he has no previous OVI convictions, Cordle has claimed this was not the first time he has operated a vehicle while intoxicated. These factors pull in separate directions and should influence the severity of Cordle’s sentence.

Rehabilitation

A maximum prison sentence does not appear to be necessary to properly rehabilitate Cordle. Since the car accident, Cordle has taken measures to restructure his life: he has not consumed alcohol since the night of the accident, he entered a treatment facility (for a period of two weeks) to address his alcohol addiction issues, created the infamous YouTube.com video “begging” others not err in the ways he has and identified a necessity for seeking mental health counseling. These measures demonstrate Cordle’s understanding of the severity of his actions. He has expressed remorse for his wrongdoings and asked for forgiveness from his friends, family and the victims. But, these actions, significant as they may be, were accomplished over a short period of time with the knowledge of an impending criminal trial. It is natural to question Cordle’s true motivation.

Deterrence

As already noted, Cordle has given up alcohol and will lose driving privileges for the remainder of his life. Any repeat violation of aggravated vehicular manslaughter would be punishable under ORC 2929.142 (H) with a mandatory prison sentence in the 10-15 year range. In addition Cordle is unique because he has, of his own initiative, began the process of deterring others through the creation of his YouTube.com video.

Restitution

Without knowledge of the specific information about the defendant’s or the survivor(s) of the victim’s financial situation, the ability to establish appropriate restitution will only serve as a procedural outline. However, pursuant to State v. Jones App. No. L-01-1047, 2003-OHIO-1865, this restitution amount will be reasonable relation of the amount of loss suffered. In this case, medical expenses incurred, property damage, loss of earnings, and funeral expenses seem possible. These payments would not eliminate the ability for a civil action but can and would be balanced against the damages awarded when/if the civil suit were decided.

Even if we do not want to “reward” Cordle for creating this video, it seems clear that independent of the video Cordle does not deserve to be categorized as the worst of the worst aggravated vehicular homicide violators and, therefore, a maximum penalty is unwarranted. While O’Brien considers this mitigating factor to be accounted for by running the prison sentences concurrently the defense would recommend an unspecified lesser sentence. Matthew’s action resulted in tragic consequences but his progression since this point and his clean criminal background cannot be overlooked.

Do we want to punish people for attempting to demonstrate their remorse? If Cordle’s video is contrived, by implementing a maximum sentence, we equate his action to combating the truth in a court of law as some aggravated vehicular homicide offenders have done.

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ARIZONA

Most states have specific statutory provisions for vehicular homicide; Arizona is one of the few that does not. In the interest of our 48th State, I examine how an offender such as Mathew Cordle could be prosecuted based on the Arizona Revised Statutes (ARS), as well as how he likely would be prosecuted based on secondary sources.

Arizona provides for four grades of homicide: first-degree murder, second-degree murder, manslaughter or negligent homicide. Cordle is easily precluded from conviction under Arizona’s harshest grade, first-degree murder because the statute requires “intending or knowing” one’s conduct will lead to death, that Cordle – believably – professes otherwise. However, if I was an especially ambitious prosecutor, eager to set an example, Cordle could potentially be prosecuted under §13-1104, second-degree murder. Pursuant to section (a)(3), if a prosecutor could show that Cordle’s actions “manifest[ed] extreme indifference to human life [such that it] create[ed] a grave risk of death.” Then, we would have to ask, does drunk driving manifest an extreme indifference to human life? While many would say yes, should this go to trial it would be a question for the jury, and by no means a slam-dunk. This is a classic “it depends” scenario, in which how the jury views Cordle as a good, bad, or stupid actor would influence their decision. Do you really want to brand a twenty-two year old kid who made a “mistake,” any defense would surely paint him to be, a murderer? I think likely not.

I believe a prudent prosecutor would charge Cordle with manslaughter pursuant to §13-1103. Cordle “recklessly caused the death of another person,” reckless being defined by the Arizona state legislature as disregard of “a substantial and unjustifiable risk,” a mens rea that intoxication will not negative. Additionally, the final homicide charge available in Arizona – negligent homicide – simply requires that Cordle cause the death of another with “criminal negligence (§13-1102).” Meaning a “failure to perceive a substantial and unjustifiable risk” such that the behavior “constitutes a gross deviation from the standard of care that a reasonable person would observe (§13-105).” Easy. Most people, save perhaps Califoria’s former Chief Justice Bird, think that drinking and driving is far outside the range of reasonable behavior.

But what would Cordle be convicted of and sentenced with? Drunk driving fatalities in Arizona are on the rise, in 2011 there were 215 alcohol related driving fatalities, a 4.4% increase from the year before. The numbers are going up, and the Arizona officials are uncertain as to why, considering the harsh DUI laws the state enforces (though they do note marijuana smoking is not the reason!). To pursue a tough stance of DUI a prosecutor in AZ would likely charge Cordle with manslaughter, but because of his willingness to accept punishment, I believe he would be convicted of negligent homicide.

A far less sympathetic character, two-time drunk driver Melissa Arrington was charged with manslaughter and a jury returned a verdict of negligent homicide after she killed a bicyclist in 2006. Negligent homicide is a class 4 felony and carries a 2.5 year presumptive sentence for first time offenders with a maximum of 3 years, unless Cordle could provide evidence of mitigating Factors like his capacity to accept wrongfulness ones showing good character, in which case he would receive a “mitigated” 1-year sentence. Perhaps Cordle’s YouTube plea with the masses to never drunk-drive could provide such evidence. However, if a prosecutor were able to obtain a manslaughter conviction, Cordle would serve a presumptive 5 years (mitigated 3) with a maximum of 10. Arrington received 10.5 years likely because she was recorded laughing about her victim’s death and her previous DUI convictions. Cordle is not so unsympathetic. Even if he were to be sentenced under a manslaughter conviction his status as a first-time offender and mitigating factors would likely warrant the presumptive five years.

Thus while Arizona does not have a vehicular homicide provision, the sentencing would play out much the same as Ohio’s will. Cordle’s sentence, whether in Ohio or Arizona will depend on the

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testimony of the victim’s family and whether or not the apologies and the remorse seem genuine. However, was I an AZ prosecutor I would pursue manslaughter because, as he says: “I killed a man.”

One man’s life is worth more than a two and a half of the man who took it.

GUAM

Constraint 1: Jurisdiction: Guam If you were a prosecutor in Oliwood or California (or any other jurisdiction of interest to you),

Question 1: [W]hat homicide charges could you potentially bring in a case like this? The following non exhaustive list:1 2 (1) one count of manslaughter as a 1st degree felony;(2) one count of vehicular homicide as a 2nd degree felony; (3) one count of vehicular homicide as a 2nd degree felony; (4) one count of criminally negligent homicide as a 3rd degree felony;

Question 2: What charges would you want to bring?

Only in an alternative reality would I be a prosecutor. My current agency would not fit into the current law.3 A charge I could bring would have two elements. First, Jimmy Aguon Manley and Matthew Cordle are both actual criminals: homicide—unlike most of the dehumanizing laws currently on the books. But, at the same time, second, was it voluntary? They are victims of circumstance. They, perhaps improperly, lack agency. They inhabit a hereditary built environment that other people decided for them.

Question 3: If you represented a defendant like Cordle in some other jurisdiction, what charge(s) would you be urging your client to be willing to plead guilty to?

No idea. I would only practice criminal law as a favor for someone that I feel I have a duty to stick up for. Thus someone in my personal network, or someone exercising their rights to a trial in a kangaroo system like Anwar al-Awlaki or his 16 year old son. They both should have been tried in abstentia because of their citizenship. It was not clear to see how the 2010 Manley case was resolved using the proprietary Westlaw database. There was a plain error in the appeal document that remanded the case. It may still be pending. Manley had pleaded guilty to charges 1 and 2 above and was additionally convicted of the dependent charge in foot note 1. Probably plead nolo contendere on the charges. He should try to not waste time, though that is what just happened, and hope to get out in under 40 years this time.

1 And a related dependent offense of: (A) one special allegation of use of a deadly weapon in the commission of a felony. 2 2010 WL 5209377 (Guam Terr.) The PEOPLE of Guam, Plaintiff-Appellee, v. Jimmy Aguon MANLEY, Defendant-Appellant.3 The built environment need no longer be auto-dependent. A new Personal Rapid Transit (PRT) technology SkyTran, based at NASA AMES research facility is a viable alternative. According to this paper’s author, Skytran could be installed across the University District for as low as half the funds The Ohio State University, TOSU, just got from the long term parking privatization contract. Unfortunately, the contract has a provision forcing TOSU to compensate CampusParc if TOSU engages in projects that significantly decrease parked cars. Skytran is run by computers so no more DUIs. More info: http://en.wikipedia.org/wiki/SkyTran

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KENTUCKY

Could Matthew Cordle be found guilty of Murder in Kentucky? Yes, unlike other states it is a definite possibility. Murder in Kentucky under KRS § 507.020(1)(b) requires the prosecutor to prove beyond a reasonable doubt; 1. The operation of a motor vehicle 2. Under circumstances manifesting extreme indifference to human life 3. He wantonly engages in conduct that creates a grave risk of death to another person and 4. Thereby causes the death of another. If the second element cannot be proven, but the other three can be proven, Mr. Cordle will be charged with Second Degree Manslaughter under KRS 507.040(1)(a).

There is a fine line between these two statutes. Both of these crimes require the prosecution to prove that the defendant was acting wantonly. The difference between Second Degree Manslaughter ‘wantonly’ and the Murder requirement of proving ‘wantonly’ are the circumstances manifesting extreme indifference to human life. The question in Mr. Cordle’s case is, could a reasonable trier of fact conclude that a high level of intoxication (.19 BAC) is an example of an extreme indifference? Looking at Kentucky precedent it seems that a high level of intoxication may warrant a finding of circumstances manifesting extreme indifference to human life. In Hamilton v. Commonwealth (560 S.W.2d 539, 541 (1978) the Kentucky Supreme Court determined that Murder was made an option specifically for cases involving drunk drivers, even without other ‘extreme’ circumstances. Thirteen years later in Walden v. Commonwealth (Ky., 805 S.W.2d 102 (1991) and six years after Walden in Estep v. Commonwealth (957 S.W.2d 191, 193–194 (Ky.1997) the Kentucky Supreme Court reaffirmed that driving while intoxicated can go to the trier of fact as the sole finding of extreme indifference. While the Walden case and cases since then have been reversed and remanded on procedural issues and questions of evidentiary admissibility, it has never been a question in the state of Kentucky that driving while intoxicated is enough for a reasonable trier of fact to determine that the situation involved circumstances manifesting extreme indifference to human life.

While there is no debate over whether or not Mr. Cordle will face the possibility of a Murder conviction, there is a question as to whether or not he would be convicted of Murder. Murder is a Capital offense and is specifically reserved for the worst kind of criminals. If convicted of Murder, Mr. Cordle would be sentenced to a minimum of twenty years and could be a candidate for the death penalty (KRS 532.030). This is a much different penalty than a conviction of Second Degree Manslaughter, Class C felony, where Mr. Cordle would face a minimum of five years and a maximum of ten years, which is more equitable to the state of Ohio (KRS 532.060). In either instance, it would be difficult to imagine the sentencing judge determining that Mr. Cordle is the worst kind of criminal, either as a murderer or Class C Felon. It is much more likely that the judge would deem Mr. Cordle to be at the lowest end of Murder (especially because this particular statute lowers the mens rea from Intentional to Wanton) or in the middle of the spectrum for Class C felons.

Retributivists in Kentucky would probably argue for the Murder conviction. If this is not an example of Murder under KRS 507.020(1)(b) than what is? Mr. Cordle was highly intoxicated, “blacked out” to use his own words, and drove the wrong way on the interstate. Mr. Cordle hit and killed Mr. Vincent Canzani and, arguably, deserves a long prison sentence. Utilitarian sentencing theorists may also argue for a strict punishment in hopes of deterring future drunk driving.

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INDIANA

If Cordle's case were tried in Indiana, the prosecutor would have several options in regards to how to prosecute for this unintentional killing. These options include prosecuting for causing a death while operating a vehicle under the influence (a Class B felony), involuntary manslaughter (a Class C or D felony), or reckless homicide (a Class D felony).

The first option includes the harshest penalty. The State would prosecute Cordle for violation of Indiana Code 9-30-5-5(b), which states that a person at least 21 years of age who causes the death of another person when operating a vehicle: (1) with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per: (A) one hundred (100) milliliters of the person's blood; or (B) two hundred ten (210) liters of the person's breath commits a Class B felony. The problem the prosecutor may run into is proving the elements of this offense beyond a reasonable doubt. Cordle's defense might say that even though Cordle admitted to “drunk driving,” there was no test to measure his concentration of alcohol. It would depend on the availability of evidence, but likely the prosecution could find evidence from that night determining Cordle's approximate number of drinks which would have been in his system. Likely, it would be a quantity showing that beyond a reasonable doubt, the concentration of alcohol was above the required amount. A Class B felony calls for a sentence between 6 and 20 years.

The State's next option would be involuntary manslaughter. A person commits involuntary manslaughter, according to IC 35-42-1-4 (c), when a person who kills another human being while committing or attempting to commit: a Class C or Class D felony that inherently poses a risk of serious bodily injury; commits involuntary manslaughter, a Class C felony. However, if the killing results from the operation of a vehicle, the offense is a Class D felony.

The Class C felony that the prosecutor could claim Cordle committed would be a violation of IC 9-30-5-5 (a), causing the death of another while intoxicated. This is only a Class C felony because unlike 9-30-5-5 (b), there is no specification the person is at least 21 years of age. However, it still could apply to Cordle just as much as 9-30-5-5(b) does. Since the killing results from an operation of a vehicle, Cordle's defense would likely insist that if convicted, it would be for a Class D felony, which calls for a sentence anywhere between 6 months and 3 years.

The last option the State has is reckless homicide, which states a person commits this crime if the person “recklessly kills another human being.” This is a Class C felony. Although I could not find definitions of culpable mental states within the Indiana Code, IC 35-42-2-2 refers to criminal recklessness as an act that a person knowingly or intentionally performs an act that creates a substantial risk. Using this definition, the prosecution could argue Cordle knowingly created the risk of killing someone because surely he knew the risks of drunk driving. Alternatively, Cordle's defense would argue that he was not aware the risk was “substantial,” but only that he was creating a risk. If convicted, a Class C felony calls for a sentence between 2 and 8 years.

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I think the option that would best is to charge Cordle for causing a death while operating a vehicle under the influence, a Class B felony, but once convicted, to push for the minimum sentence. This could serve both retributive and utilitarian principles. From a retributive standpoint, Cordle would be less deserving of punishment because there was no intent to kill. However, there is still blameworthy action in the decision to drink and drive and therefore put others at risk. A 6 year punishment might seem a proportional sentence to the blameworthiness of this action. This conviction and sentence choice more convincingly serves utilitarian principles. If the utilitarian goal would be to deter and incapactitate drunk drivers, this would be the way to do it. By convicting Cordle specfically for a drunk driving death of a Class B felony, the State is making a statement with its condemnation that drunk driving is a special and more reprehensible type of crime which can be punished more harshly. This threat could deter drunk driving and possibly reduce drunk driving deaths. Cordle presents a special case because he gave a video confession, taking responsibility for this terrible behavior. By giving Cordle the minimum sentence, the State could make the statement that there is more forgiveness when drunk drivers take responsibility for their crimes. This might encourage more drunk drivers to take responsibility and show remorse for their crimes which sends a message to society about the seriousness of drunk driving. More might come forward who were involved in a hit and run situation if they are only fearing a 6 year sentence and not a 20 year sentence. On the other hand, fearing a lesser sentence might deter less people from driving drunk if they do not think they could be at risk for such a large sentence as long as they take responsibility for it after the fact that it happens.

KANSAS

Matthew Cordle confessed in a now-viral youtube video to killing a 61-year-old man while driving drunk on the wrong side of an Ohio freeway. Although he's been charged and pleaded guilty in Ohio for aggravated vehicular homicide, is there a jurisdiction where he could be convicted of murder?

In Kansas, the answer may be yes – drunk driving could be murder.

As Paul Robinson et al has noted, Kansas revised its criminal law to reflect the Model Penal Code (MPC) in 1970. One notable difference from the MPC, however, is Kansas' vehicular homicide statute:

“... the killing of a human being committed by the operation of an automobile ... in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.”

Had the facts put Cordle going the wrong way on I-70 in the sunflower state instead of I-670 in the buckeye state, a Kansas prosecutor could probably echo the Ohio prosecutor's statement and call the case “a slam dunk” under vehicular homicide. It would not be hard to prove drinking and driving “creates an unreasonable risk of injury” and “constitutes a material deviation” from a reasonable person standard. Even if the defendant did not plead guilty, at the point he tells the judge, “I drank so much I was blacked out,” the jury would probably convict.

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But the Kansas prosecutor could go beyond vehicular homicide and would have a strong chance of satisfying the elements in the murder in the second degree:

“... the killing of a human being committed: (1) Intentionally; or (2) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”

It is undisputed that Cordle unintentionally killed a human being. The question would be first, whether such killing was done recklessly under the circumstances, and second, whether his conduct manifested extreme indifference to the value of human life. Since Kansas follows the MPC closely on mens rea, recklessness is the “conscious disregard of a substantial and unjustifiable risk.” The risk of driving after binge drinking is self-evidently substantial and unjustifiable; the only challenge for the prosecution on the first question might have been establishing conscious disregard with respect to getting behind the wheel. It helps that Cordle confessed to knowing he was prone to blackouts after heavy drinking and chose to drive in spite of this knowledge.

The defendant also must be shown to have extreme indifference to the value of human life. This second question might be more difficult for the prosecution, especially after a heart-felt confession on the part of the defendant. However, the case State V. Doub would give the prosecution a strong foothold due to its similar set of facts: here the defendant, also driving a pick up truck, was convicted of second degree murder for killing a 9 year-old girl after driving colliding with her car.

In Doub, the court considered eight factors that could demonstrate “extreme indifference to the value of human life” in the context of causing a death while driving. These include intoxication, driving on the wrong side of the road, near collisions preceding the fatal accident, and failure to heed traffic signs. Cordle was intoxicated and drove on the wrong side of the freeway. Moreover, he ignored traffic signs and narrowly missed two other cars, including one where two women suffered minor injuries after swerving to avoid him.

In the end, the acknowledgement via a pop culture viral video of the wrongfulness of his deeds might be uniquely damning under this statement. No one can avoid the ubiquitous warnings and condemnations of drunk driving. In a world where the media saturates drivers with statistics like traffic accidents involving alcohol account for one death every 33 minutes, and where drunk driving is a universally condemned form of conduct, to get behind the wheel intoxicated today must amount to flagrant, extreme indifference.

There may be other jurisdictions where a murder conviction could be obtained, and there is no guarantee a murder conviction could be obtained in Kansas. However, there is a compelling case that Cordle could be found guilty of murder in the second degree under the same set of facts – were he tried in Kansas.

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MICHIGAN

In an undergraduate course on judicial process, my professor proudly proclaimed that Michigan has always had more progressive criminal laws than its neighbor to the South. Appeals from Ohio’s tough criminal statutes helped the 6th Circuit Court shape a sizable portion of the nation’s constitutional handling of criminal issues. However in the area of drunk driving, Michigan laws are more severe. Matthew Cordle would have a better chance for a more lenient sentence in Ohio than in Michigan.

The relevant section of Michigan’s code for Mr. Cordle would be M.C.L. 257.625, “Operating a Motor Vehicle While Intoxicated.” http://legislature.mi.gov/doc.aspx?mcl-257-625 Section 625(4)(a) says that anyone, who is intoxicated while operating a motor vehicle and causes the death of another, is guilty of a felony and can be sentenced to up to 15 years jail time. In addition, they must receive a fine between $2,500 and $10,000. Also their vehicle must be forfeited or immobilized. In Michigan, unlike Ohio, when a death results, there is not a choice of a first or second degree charge based on the defendant’s previous driving record.

The most surprising part of the Michigan law is section of 625(4), where the penalties are increased depending on the class of the victim. This is very similar to Ohio’s aggravated murder statute. In Michigan, if a police officer, firefighter, or emergency response person is killed, the sentence can go up to 20 years.

Section 625(4)(b) seems not to fit under either theory of punishment. While a drunk driver is behaving negligently or recklessly, they certainly don’t have a purposeful or knowing mental state for any death they cause. A retributivist would not find someone who unintentionally kills a firefighter more blameworthy than someone who unintentionally kills anyone else. It would be difficult for a utilitarian to argue that a person already engaged in the reckless act of driving drunk would be deterred by the extra jail time associated with killing a firefighter.

The increased severity of Michigan’s laws do not seem to have made a large impact on deterring drunk driving deaths. According to the Century Foundation in 2011, there were 2.6 drunk driving deaths per 10,000 in Michigan, compared to 2.7 deaths per 10,000 in Ohio. http://www.centurycouncil.org/state-facts/michigan http://www.centurycouncil.org/state-facts/ohio

The effect of Matthew Cordle’s youtube video on his sentence remains to be seen. But he is, without question, better off being sentenced in Ohio than in the Great Lakes state.

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NEVADA

What would the fate of Matthew Cordle be if instead of killing Vincent Canzani on I-670, he ran through the median on Las Vegas Blvd, and killed a driver turning into Caesars Palace? Last year, 70 lives were lost in Nevada in alcohol related crashes. If Mr. Canzani’s life had been one of those, what type of sentence could Mr. Cordle have received?

Nevada has a range of homicide charges, with categories such as Murder in the First degree, Manslaughter, Vehicular Manslaughter and many others. The most likely charge for Mr. Cordle can be found in a specific statute, NRS 484C.430, commonly referred to as “DUI Causing Injury or Death.” NRS 484C.430 tells us that if a person, while under the influence of drugs or alcohol, causes serious bodily injury or death, they shall receive anywhere from 2 to 20 years in prison, and a fine between $2,000 and $5,000. This is a category B Felony, and would be the most serious charge Mr. Cordle could face in Nevada. Nevada also has other possibly applicable charges like Vehicular Manslaughter (a misdemeanor offense) or Reckless Driving- Causing a Death (a felony), but none of these options carry harsher penalties than NRS 484C.430.

What about sentencing? Two years is a far cry from twenty. Would the fact that Mr. Cordle is a first time offender help him in any way? Looking at other cases that received media attention, though nowhere near the attention of over 2 million, it appears that many first time offenders aren’t cut much slack. The fact that it was Justin Caramanica’s first DUI didn’t stop him from receiving a 20-year sentence when he hit and killed a 12 year old out on Halloween night. Jacques Norton, also a first time offender, was given a 12-year sentence for a DUI related car accident that killed a 52-year-old man.

Because of the media attention and strong public opinions surrounding the case, I would find it hard to believe that a Nevada prosecutor would advocate for anything near the two-year side of the range. Mr. Cordle’s sentence would most likely mirror that of Mr. Norton. With similar facts and victims, the 12-year precedent set in that case could influence a Nevada sentencing judge in Mr. Cordle’s case.

Turning to the reasoning behind a possible 12-year sentencing, I find support in both the retributivist and utilitarian camps. A utilitarian could find justification for punishing Mr. Cordle by claiming that a tough sentence could serve as deterrence. Mr. Cordle himself has already shown interest in being a role model- “begging” in his video for others not to make the same mistake he did. By sentencing him to a longer prison term, it could help deter not only Mr. Cordle from making the same mistake again, but others in society from drinking and driving. Looking at the retributivist view, I believe that because Mr. Cordle took a life, a retributivist would argue that he deserves a harsher punishment, such as a lengthy prison sentence.

Back in reality, Mr. Cordle did not kill a Las Vegas thrill seeker, but instead an Ohio man and father. His fate will be left up to a Franklin county judge, and I think it is a fair assumption to say that Mr. Cordle hopes that judge has access to YouTube.

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NEW YORK

In the state of New York I find it very shocking the amount of drunk driving deaths that occurred in 2011. Not only is this number extremely high in relation to the amount of total drunk driving deaths per year in the nation, which according to Professor Berman’s calculations would end up being about 100 per state if they were divided equally between the 50 states. New Yorks statewide number is 2011 was 315. This high of a number becomes even more chilling when it has been shown that it is down 13% from the year before. (http://www.madd.org/drunk-driving/state-stats/New_York.html) These statistics make me wonder a) why is drunk driving such an issue in the state of New York, especially considering the amount of public transportation use in its main city and b) what has changed from 2010-2011 that caused a 13% decrease?

One law change that was made in that time was the passing of Leandra’s Law, which requires ignition interlocks for all convicted drunk drivers. This law was put in originally as a child protection act after 11-year-old Leandra was killed as a passenger in a vehicle being driven by a drunken woman. The Utilitarianism is this act is very clear now however, as it is imposed on ALL convicted misdemeanor and felony drunk drivers, even if it is their first offense. This new imposition leaves no room for the “feeling” we get when someone is convicted and may or may not deserve a harsh punishment, especially when it is their first offense. New York is cracking down and creating harsher punishments including jail time for many offenses involving drunk driving.

New York State’s utilitarian views come out quite often in the article where I received this information (http://www.criminaljustice.ny.gov/pio/ press_releases/2010-7-20_pressrelease.html) and you can see this by the word “automatically” which is used several times throughout the new law. Although there may not be a strict liability aspect when convicting someone of drunk driving, I chose to focus on the strict liability aspect shown here when it comes to punishment. This new law leaves little room for a Prosecutor to use retributivist views and use his or her judgment when sentencing a drunk driving case, especially one with a child in the vehicle.

Due to these recent laws over the past few years and the seriousness of drunk driving in the state of New York, I think Matthew Cordle would be looking at a the longer side of the spectrum when it comes to sentencing. I did not directly address the state’s aggravated vehicular homicide laws because I found these newly enacted laws so interesting, but I think that they show how harsh the sentencing is becoming in the state. This type of deterrence is obviously having some effect since the statistics of drunk driving deaths dropped 13% over a year, and I don’t think any movement will be made to let up and let empathy for the drivers affect sentencing any time soon. NY has too many victims to stand up for.

NORTH CAROLINA

Sadly Matthew Cordle’s story is not a new one. A person drinks too much, makes the choice to drive while intoxicated and takes the life of an innocent person. With the exception that Cordle took to social media to admit his guilt and take responsibility, this case is not an anomaly. In Ohio, Cordle stands to receive 2 – 8.5 years for aggravated vehicular homicide and driving while intoxicated, but what would Matthew Cordle’s sentencing be in a state with more stringent drunk driving laws, like North Carolina?

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North Carolina is notorious for harsh laws in regards to drunk driving and accidents that result in death due to driving impaired. A quintessential example of this is the court’s decisions in State v. Jones4 and State v. Blackwell5, where the defendants in the cases received a sentence of life in prison without parole (although in Jones, the felony-murder charge was later vacated.)6 Further, as recent as December 2012, North Carolina’s legislature passed and implemented a stricter bill that resulted in increased penalties for such accidents.

Outside the very extreme cases presented in Jones and Blackwell, under North Carolina law, if a person is driving impaired and causes an accident that results in a death the charges can vary. One is example is the person can be guilty of “Felony Death By Vehicle.” If convicted, he or she could be sentenced to up to 64 months in prison. Further, if you have been convicted for a DWI within the last seven years of the accident, it bumps it up to a Class D felony, “Aggravated Felony Death by Vehicle,” which has a minimum sentence of 73 months.7 Others could include involuntary manslaughter, second-degree murder and even assault with a deadly weapon.

Cordle, if in North Carolina, would probably not be treated as severely as Jones or Blackwell, as this was his first offense. Most likely he would be charged with felony death by vehicle and receive less than the maximum of 64 months in prison (although if I were the prosecutor, I would urge for the maximum, but that’s just a bias against the reprehensible act of drunk driving.)

The Retributivist would look at North Carolina’s law and agree with much of what they are doing. The extreme cases alone of Jones and Blackwell indicate that the people, whom the state deems to be doing the most harm, get punished the most severely. The broad spectrum North Carolina offers for these types of incidents – from involuntary manslaughter to second-degree murder -- suggests that, like a Retributivist, there is a gradation of wrongs and the state wants to punish based on what is deserved by the circumstances (i.e., those with prior convictions get punished more severely.)

Likewise, looking at North Carolina’s laws under a utilitarian lens would yield some similar results. The utilitarian perspective encompasses deterrence and incapacitation, two things North Carolina definitely aims to do with their stricter-than-most laws. In the instance of Jones and Blackwell, the state aims to incapacitate those that will continue to endanger people’s lives by driving while intoxicated and do so by imprisoning them for sentences that involve a considerable amount of time in prison. Further, the fact they are so widely known for strict laws when it comes to this, should serve as a deterring factor to those that would ever be in a position to drink and drive.

Matthew Cordle is expected to receive his sentence this week. While it is possible he will receive a mere two years for his part in the death of an innocent man, my prediction (and hope – just call me a retributivist) is that he receives more to satisfy both a utilitarian and retributivst perspective of punishment.

4 State v. Jones, 516 S.E.2d 405 (N.C. Ct. App. 1999)5 State v. Blackwell, 97 CRS 6391, Durham County, North Carolina (March 16, 1998)6 22 Campbell L. Rev. 169.7 http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_20/GS_20-141.4.html

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SOUTH CAROLINA

Examining the Cordle case under South Carolina law, one finds significantly fewer statutory provisions under which one could allege liable when compared with Ohio. South Carolina has five relevant homicide statutory provisions. First, is murder, which is defined as “a killing of any person with malice aforethought, either express or implied.” (S.C. Code Ann. § 16-3-10). I do not believe Cordle could properly be charged with murder. The next relevant homicide statute is voluntary manslaughter (S.C. Code Ann. § 16-3-50), which is an “unlawful killing of another without malice.” I also do not believe Cordle would be likely to be charged with voluntary manslaughter. The last three are the ones I believe would be most relevant to the Solicitor taking the case and seeking to punish Cordle for his actions.

First, involuntary manslaughter is defined as criminal negligence, which South Carolina defines as “the reckless disregard of the safety of others” and carries a mandatory prison sentence with a maximum sentence of five years imprisonment. (S.C. Code Ann. § 16-3-60). The other two provisions of the South Carolina Code that I believe would be relevant to the Solicitor fall under the title regulating driving procedures. First, is reckless homicide which is occurs when a person dies within three years “as a proximate result of injury received by the driving of a vehicle in reckless disregard of the safety of others (S.C. Code Ann. § 56-5-2910). Reckless homicide carries a penalty of a fine ranging from $1,000 to $5,000 and up to 10 years imprisonment. (Id.) The final relevant statutory provision is Felony DUI which has been defined as “A person who, while under the influence of alcohol . . . drives a motor vehicle and when driving a motor vehicle does any act forbidden by law or neglects any duty imposed by law in the driving of the motor vehicle, which act or neglect proximately causes great bodily injury or death to a person other than himself. (S.C. Code Ann. § 56-5-2945) Felony DUI carries a fine of $5,100-$10,100 and mandatory imprisonment of 30 days to 15 years.

Imagining Franklin County, Ohio Prosecutor, Ron O’Brien, as the Solicitor in this case in South Carolina, I would expect him to charge Cordle with felony DUI. As O’Brien has been forward with seeking the maximum penalty available for Cordle, I believe felony DUI gives him the same case in South Carolina. Under the relevant statutory provisions, felony DUI gives O’Brien the longest prison sentence to request from the judge. I imagine O’Brien would ask for the full 15 year sentence as well as the maximum fine of $10,100. This would allow O’Brien and the court to make an example of Cordle and deter others from driving drunk—a sentiment that Cordle himself requested in his youtube confession.

In looking at the facts of this specific case, I find it likely the judge would be willing to mitigate Cordle’s sentence. This is the first time he has been in trouble, he cooperated with the investigation, confessed to the killing and pled guilty. I believe the judge would look at all of the circumstances and say that Cordle does not really deserve a full length sentence, and would probably order Cordle to serve somewhere in the 6-10 year range for his actions. South Carolina is a fairly conservative state that would likely demand a longer sentence than other jurisdictions.

TEXAS

If the Cordle case were taking place in Texas, the prosecutor would likely charge him with Intoxication Manslaughter under Texas Penal Code (TPC) 49.08, a second-degree felony.i A person is guilty of Intoxication Manslaughter if the person: 1) operates a motor vehicle in a public place…. and 2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. There is very little question, given the evidence in our case, that Cordle satisfies these requirements. The key for the prosecution will be to prove that the death of Canzani was directly caused by Cordle’s

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intoxication. They will likely prevail on this, as Cordle has created a video admitting to his actions and warning of the dangers of drunk driving, especially highlighting what his drunk driving caused; Canzani’s death.

Intoxication Manslaughter has a lesser mens rea than other homicide crimes under the Texas Penal Code. Section 49.11 of the TPC says that the proof of a mental state is unnecessary for conviction of crimes listed in this chapter. ii While the prosecution will agree that Cordle didn’t mean to kill a man, mens rea is unnecessary to prove in an Intoxication Manslaughter charge.

Under section 12.33, a second-degree felony carries a sentence between 2-20 years imprisonment, and a fine up to $10,000.iii Drunk driving is an act that puts the public-at-large in danger, and is the type of act that prosecutors want to punish. This sentence will serve as a form of justice for the Canzani family who lost their beloved as a result of his actions. The prosecution will likely seek the highest prison sentence of 20 years in prison. They may argue that the seriousness of drunk driving, and the consequences that arise should be seriously punished in order to set an example, and deter others from acting in this same manner. In addition, they may use the popularity of the video against Cordle, arguing that the family must relive the death every time they see or hear the confessional video.“Canzani’s daughter told a TV station…that the attention the case has gotten is forcing her to relive what happened…people seem to forget a person died.”iv

However, the prosecution may not be able to obtain a significant sentence because of Cordle’s lack of any prior convictions and the publicity that Cordle has received from his public repentance. In a recent Texas Intoxication Manslaughter case, a 32 year-old woman in San Antonio named Jenny Ybarra was sentenced to two-years in prison for her Intoxication Manslaughter conviction.v She, like Cordle, was intoxicated while operating a motor vehicle and drove on the wrong side of a highway causing a death. Keep in mind that in this case, unlike Cordle, the driver of the other vehicle was also intoxicated. Perhaps this had an effect on the jury’s final decision, but the state was asking the jury for a sentence between 15-20 years. They returned with a 2-year sentence and a 10-year probation period. Even though not required for conviction of the charge, the defense argued that Ybarra had no malice or intent to kill someone. Perhaps this lack of mens rea played a role at sentencing. In contrast, another Intoxication Manslaughter conviction resulted in a 12-year prison sentence for a 23 year old, Aaron Somers. He had prior arrests, including a DWI charge. Somers appealed this sentence and the appellate court affirmed the Jury’s assessment for a 12-year sentence.vi

The defense will likely concede that Cordle is guilty of Intoxication Manslaughter, as it would be very hard to argue differently. Perhaps, the defense could try to argue Cordle committed a Criminal Negligent Homicide, articulated in section 19.05 of the TPC reads: (a) a person commits an offense if he causes the death of an individual by criminal negligence... (b) an offense under this section is a state jail felony. The maximum jail time for a conviction of Negligent Homicide under Texas Penal Code is 2 years and no less than 180 days.vii It would be extremely unlikely that the defense would prevail because the Intoxication Manslaughter charge is right on point. In addition, it would be hard to show Cordle acted negligently as his video gives evidence to show that he was aware of the risks of his actions, and he consciously disregarded those risks.viii To rebut that, perhaps the defense could argue that the video statement was a statement of grief upon reflection of his negligent acts? Again, however this is probably not going to prevail, as the Intoxicated Manslaughter is specific to Cordle’s criminal act and fits it better. Perhaps the defense would agree to plead guilty to the Intoxication Manslaughter if the prosecutor was willing to take that into account during the sentencing stage. Likely the defense would encourage Cordle to plead guilty to Intoxicated Manslaughter, and seek a low prison sentence of 2 years with a high community service requirement.

In Texas, there is a specific criminal statute that outlines exactly the crime that Cordle committed, so it would be difficult for the defense to seek a different charge. That is why the defense would likely

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concentrate their efforts in the sentencing aspect of the charge. Just like in the Yrabba case, they can argue the Cordle has no prior record and did not mean to kill someone. In fact, Cordle is so distraught that, despite the risk of self-incrimination, he created a video to inform others of the consequences of drunk driving. The defense may argue that he has already shown significant appreciation to the social harm caused by his acts, and in fact may better serve society by continuing to speak on behalf of this issue. Cordle’s video has received more than two million views on youtube.com.ix It is apparent, based on the national publicity that his video has received, that he has garnered some public sympathy and would be an effective public speaker on the dangers of drunk driving. In addition, the defense will want to explain that a maximum sentence will deter others from turning themselves in. Deterring the public from admitting their wrongs could have great consequences for society and specifically families of future victims who would be left without justice.

WISCONSIN

The unfortunate scenario faced by Matthew Cordle is all too common across the United States, but each state has a different way of dealing with the tragic events. The state of Wisconsin provides a range of murder charges, from statute 940.01 first-degree intentional homicide, 940.02 first degree reckless homicide, and down to 940.09 homicide by intoxicated use of vehicle or firearm (http://docs.legis.wisconsin.gov/statutes/statutes/940/I/01). The latter of those mentioned is of concern for our purposes.

If Matthew Cordle were a resident of Wisconsin, he would be prosecuted under Wisconsin statute 940.09(1)(a), which states that a person will be penalized if that person “causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant”. The statute states in 940.09(1c)(a), “except as provided in par. (b), a person who violates sub (1) is guilty of a Class D felony”. 490.09 (1c)(b) states that “a person who violates sub (1), is guilty of a Class C felony if the person has on or more prior convictions, suspensions, or revocations as counted under 343.307(2)”. Under the statute, since Matthew is a first time offender, he will be charged with a Class D felony, which carries the penalty of a fine up to 100,000 and/or a prison sentence up to 25 years (http://www.dot.wisconsin.gov/safety/ docs/owi-penchrt.pdf ). Additionally 940.09 (2)(a), allows a defense if “he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant…”. This is an interesting addition to the statute, which is presumably, something may defendants would seemingly try to use.

Statistics have shown Wisconsin to have a high percentage of binge drinkers, and one of the largest percentages of drunk driving accident in the country (http://www.jsonline.com/news/ wisconsin/30903834.html). Such a high number of incidents may help to explain why the Wisconsin penalties are seemingly harsh in comparison to other states where the penalties are not quite so lengthy in terms of prison sentences http://www.madd.org/laws/lawoverview/Vehicular_ Homicide _Overview.pdf). The maximum sentence of 25 years appears to serve a more utilitarian function than retributive, in order to serve as a deterrent from engaging in a behavior that so inherently dangerous to the general public and as an incentive not to drink and drive. With the potentially harsh sentences, (2)(a) could have been added so that a only a person truly blameworthy of a long sentence, are the ones to serve them.

Interestingly enough, in 2011, a young Wisconsin man killed another Wisconsin man riding a bicycle. He was convicted to only 90 days in jail with work release, which many viewed as a shockingly short sentence to receive (http://www.jsonline.com/news/crime/bicyclists-death-puts-owi-law-in-spotlight-b9966392z1-218316911.html). Despite extenuating circumstances in the case that may have

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been a factor (in which the deceased was under criminal prosecution at the time himself), the court essentially found that the case was an unavoidable accident. It seems as though the defense attorneys in this case made an argument under 940.09(2)(a), to explain their clients conduct, although that is not specifically disclosed. This may be an isolated in terms of circumstances, but it does indicate some leniency in at least one of the Wisconsin courts.

It was difficult to find an average on the amount of time a person is sentenced for OWI homicide charges in Wisconsin, but based on the potential severity of the punishment (as provided in the law), I would assume Matthew Cordle will receive somewhere in the mid range of the maximum sentence. Given the facts, I don’t see how there could be potential (like the above case) to show the accident would have occurred regardless, and thus he may be subject a significantly longer sentence.

OLIWOOD

On June 22, 2013 in Olliwood, USA Matthew Cordle drank to such an excess that he blacked out. That night, he drove the wrong way on an interstate and struck a car, killing the driver, Vincent Canzani. After initially contesting the charges stemming from this incident, Mr. Cordle had a change of heart. On September 3, he released on the Internet a confessional video that is laden with emotion and of a professional quality. In the video, Mr. Cordle claimes to suffer from depression and, essentially, admits to being an alcoholic. Mr. Cordle then announces his intention to not contest his prosecution, a decision which he claims is based on a desire to “take full responsibility” and “not dishonor Vincent [Canzani's] memory”. Mr. Cordle also gives a strenuous admonishment against drunk-driving, and claims that he is willing to accept punishment in order to better promote his anti-drunk-driving message. The video has attracted millions of viewers and has received national press coverage.

This situation presents Olliwood prosecutors with a case that is at once simple and confounding. The defendant has announced his guilt, and maintained his promise to not contest charges, thereby eliminating the burden of an active prosecution. However this apparently clear path is made difficult by Mr. Cordle's overt and decidedly modern mea culpa which simultaneously enlists himself in the fight against drunk-driving, long an issue of national concern. The decisions the prosecutors must make in regard to charging and sentencing are complicated further by the national attention that has been drawn to Mr. Cordle's video and the emerging trend of internet activism exerting pressure on local prosecutors. As in all cases through history the prosecutors must weigh the concerns of justice and pragmatism, but in the case of Mr. Cordle they are presented with a quintessentially 21st century dilemma.

The Olliwood's District Attorney's office should consider itself at liberty to indict the defendant on any charge that may be applied under the Olliwood Penal Code; the defendant has pledged to not contest the charge and there

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is no reason to believe that he will renege on that pledge. In deciding how harshly to punish the defendant, the ODA must first decide whether to charge Mr. Cordle with murder or manslaughter. Under OPC §210.2, Mr. Cordle may be charged with murder if he is found to have acted with “extreme indifference to the value of human life.” This would be a difficult charge to prove given the facts in the case, but the prosecution will not be forced to prove them if Mr. Cordle's case does not go before a jury. Prosecutors could also charge Mr. Cordle with manslaughter under OPC § 210.3, which requires simple recklessness as a mens rea. Prosecutors may seek a punishment up to and including execution for Mr. Cordle, or they may elect to seek a much less severe punishment since the Olliwood Penal Code does not provide for sentencing minimums.

The concept of justice constitutes the core of retributivist theories of punishment – justice for the victims of crimes, justice for the society that suffers criminality; justice which corrects the ethereal moral unbalance that crime engenders. Olliwood prosecutors must evaluate the degree to which the defendant's actions subsequent to his crime have mitigated his criminality. Owning one's crime certainly does not diminish the principal harm – nothing will bring Mr. Canzani back – but the defendant seems to have demonstrated that his character is not entirely as depraved as his behavior suggests. A pure retributivist would dismiss these factors – the criminal must be punished in accord with his crime and no other considerations apply. A more moderate retributivist will recognize that Mr. Cordle is less deserving of punishment than an unrepentant and recidivistic drunk-driver. From a retributivist perspective, Olliwood presecutors must determine whether the defendant's contrition renders him eligible for leniency.

Utilitarian theories of punishment consider how society as a whole may benefit from oneperson's punishment. Mr. Cordle's case presents several problems in this regard. He has admitted his guilt and will not contest the charges against him; this reduces the burden on the justice system, allowing it to be more effective, and thus his behavior that should be encouraged in others. Mr. Cordle also seems as unlikely as any drunk-driver to commit the same offense again, another possible reason to consider leniency. The issue of Mr. Cordle's anti-drunk-driving advocacy is more difficult to parse. It is impossible to know to what degree Mr. Cordle's video has or will influence individual persons' decisions on whether or not to drive after drinking. There is no reason to believe that it is significant, and so perhaps no reason to encourage this in future defendants by awarding a lighter sentence. These problems are magnified by the widespread media coverage that Mr. Cordle's prosecution is likely to receive. This coverage might suggest to Olliwood presecutors that Mr. Cordle deserves a harsh

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sentence, which might further highlight the pitfalls of drunk-driving. There are a host of consequences that may attend to either a harsh or light sentence, and prosecutors should be advised to keep in mind the potential long-term effects when they make their decision.

Ultimately, prosecutors must consider Mr. Cordle's video itself, the element of this story which is most important to their dilemma. The video's style and structure is worthy of examination here. As the video opens, Mr. Cordle's face and voice are digitally scrambled, suggesting a self-imposed anonymity. The lighting in the video is deliberate, illuminating Mr. Cordle's face against a black matte backdrop. Transitions from various angles are managed in a “fade-to-black” fashion. The video is of reasonably high-quality, likely shot with a digital-SLR camera. The images are accompanied by musicwhich lends gravity to the content. After the digital distortion of Mr. Cordle's face is removed, he makes his confession, as the camera delicately drifts to the viewer's left. After Mr. Cordle “beg[s]” viewers not to drink and drive, the image fades to black. A web address appears: www.becauseisaidiwould.com. The website's aim is to “better humanity through the power of a promise.” The video, just over 300 seconds long, is a powerful appeal to emotion. Prosecutors should consider the effort and resources that Mr. Cordle has used to produce this video, and consider the implications of allowing this video to play any role in their charging and sentencing decisions. Much of the video's force comes from the quality of its composition: minimal but effective lighting, emotionally appropriate music, quality picture resolution, humanizing camera shotsof Mr. Cordle's scarred and tattooed arms. It is not known who assisted Mr. Cordle in producing and editing the video, or how he obtained the necessary lighting, camera equipment, or editing software. It is easier than ever for amateur film-maker to produce such a high-quality product, but many millions of Americans lack such expertise and resources. Mr. Cordle's video, his public admission of guilt, and his message aimed towards the public good, are all made possible because he has means that many, if not most, do not. Greater availability of professional film-making equipment and the internet are the factors that brought Mr. Cordle to the nation's attention; his message is not substantively different because millions have heard it; his repentance is no more or less sincere than a woman who begs for forgiveness on the street or in a courtroom.

Conversely, a similar confession, shot with a “web-cam” and lit with fluorescent light would be unlikely to “go viral” regardless of its authenticity or influential force. Mindful of these precautions, Olliwood prosecutors should consider Mr. Cordle's prosecution without regard to the public force of his video. In this rare instance, pure retributivism offers a valuable approach to sentencing. To treat his confessional any different than a courtroom confession of equal veracity would be to deny equivalent access to justice for defendants who lack the ability to produce slick videos and post them on the

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internet. To allow such a perverse arrangement satisfies neither justice nor pragmatism, and should be equally abhorrent to both retributivists and utilitarians.

My recommendation for Olliwood prosecutors would be to weigh the relief to the Olliwood justice system that Mr. Cordle's cooperation has afforded with the strong possibility that this case may serve the interest of deterrence due to the widespread attention Mr. Cordle has received. Accordingly, I recommend that prosecutors recommend a sentence of ten years incarceration. An innovative alternative option would seek to capitalize on the public focus on this case. In this alternative, prosecutors would request a sentence of ten years, commuted to five years. Under the terms of this sentence, Mr. Cordle would be required to complete 5,000 hours of community service as an advocate against drunk driving. This would assert the demands of both justice and pragmatism.

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OHIO, OLIWOOD & CALIFORNIA

Issue: What homicide charges would Cordle face in Ohio, Oliwood and California?

Discussion:

I. Cordle would be charged with in Aggravated Vehicular homicide in OhioThe mens rea of Cordle is recklessly or in Ohio. When a person drives after he is drunk heavily (just

as Cordle has admitted). It can be proved that this person is heedless indifferent about the consequences and perversely disregards the known risk of killing someone on street (recklessly).

The charge that Cordle may face in Ohio would be aggravated vehicular homicide. As O. R.C. 2903.06 provides: “(A) No person, while operating or participating in the operation of a motor vehicle……shall cause the death of another or the unlawful termination of another's pregnancy in any of the following ways:

(1)(a) As the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance…….

(2)(a) Recklessly;…...

(B)(1) Whoever violates division (A)(1) or (2) of this section is guilty of aggravated vehicular homicide and shall be punished as provided in divisions (B)(2) and (3) of this section.”

Therefore, Cordle will face the charge of Aggravated vehicular homicide in Ohio.

II. Cordle would be charged with Murder or manslaughter in OliwoodThe mens rea of Cordle is reckless in Oliwood. By driving after he is heavily drunk, he consciously

disregards a substantial and unjustifiable risk that he may kill someone on street. There is a deviation from the standard of conduct that a law-abiding person would do in his situation. See M.P.C. § 2.02 (2)(c)

Cordle will possibly face the following charges in Oliwood:

1. Murder: By driving after heavily drunk, Cordle shows a extremely indifference to the value of human life. See M.P.C. 210.3(1)(b)\

2. Manslaughter: Since Cordle killed a man recklessly.Although voluntary intoxication can be a defense in Oliwood, it applys only when the intoxication is not self-induced or it is pathological. Therefore, it does not apply to Cordle.

III. Cordle would be charged with in Gross Vehicular Manslaughter in CaliforniaCordle does not have malice afore thought. The mental state of Cordle is negligently in California.

There is a want of such attention to the nature or probable consequences of drunk driving. C.P.C 7.2

By driving after heavily drunk, Cordle violated C.P.C.§191.5(a):” Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.” Therefore, he will be charged Gross Vehicular Manslaughter in California.

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i Tex. Penal Code § 49.08, https://www.oag.state.tx.us/AG_Publications/pdfs/penalcode.pdf

ii Tex. Penal Code § 49.11, https://www.oag.state.tx.us/AG_Publications/pdfs/penalcode.pdf

iii http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.12.htmiv http://www.huffingtonpost.com/2013/09/18/matthew-cordle_n_3945316.htmlv http://www.mysanantonio.com/news/local_news/article/Ybarra-receives-2-year-prison-term-for-DWI-3334582.php

vi http://caselaw.findlaw.com/tx-court-of-appeals/1546209.htmlvii http://blog.austindefense.com/2006/10/articles/state-jail-felony-range-of-punishment-texas-penal-code/viii Tex. Penal Code § 19.05

ix http://www.youtube.com/watch?v=MmpK_EshSL4