Aces High Bulletin Board
General Forums => The O' Club => Topic started by: StSanta on April 16, 2003, 06:08:19 AM
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Story is here (http://www.cnn.com/2003/LAW/03/29/ctv.berseth.trial/index.html).
Basically he was out deer hunting and had shot a deer. He then spotted something white flashing and took it to be the tail of the deer and fired. Turns out the white flash was a piece of clothing worn around the neck by his female neighbor, who died on the spot.
He goes free. While the death was probably accidental, his failure to identify the target before firing is, IMHO, crimininally negligent. And if he thought the scarf was the tail of a deer, wouldn't he fire at the upper part of the body instead of the tail - had he done this then his bullet would have gone wide and missed the woman.
I dunno. I know that in Denmark he'd get sentenced for negligent behaviour and manslaughter and do 1-4 years in jail.
Am surprised you can be so grossly negligent, kill someone, and walk free. Since I am not too familiar with US laws, perhaps someone can explain it to me? If it is an accident in the US and someone dies, you do not necessarily get jailed for manslaughter/murder, that much I know. But if there's crimininal negligence behind it, you get charged - yet even though this negligence is substantiated in court you can go free? Did he go free on a legal technicality (happens here too, annoys the hell outta me) or have I misunderstood something?
He was charged after all, but acquitted. Just how, I dunno.
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Originally posted by StSanta
Story is here (http://www.cnn.com/2003/LAW/03/29/ctv.berseth.trial/index.html).
Basically he was out deer hunting and had shot a deer. He then spotted something white flashing and took it to be the tail of the deer and fired. Turns out the white flash was a piece of clothing worn around the neck by his female neighbor, who died on the spot.
He goes free. While the death was probably accidental, his failure to identify the target before firing is, IMHO, crimininally negligent. And if he thought the scarf was the tail of a deer, wouldn't he fire at the upper part of the body instead of the tail - had he done this then his bullet would have gone wide and missed the woman.
I dunno. I know that in Denmark he'd get sentenced for negligent behaviour and manslaughter and do 1-4 years in jail.
Am surprised you can be so grossly negligent, kill someone, and walk free. Since I am not too familiar with US laws, perhaps someone can explain it to me? If it is an accident in the US and someone dies, you do not necessarily get jailed for manslaughter/murder, that much I know. But if there's crimininal negligence behind it, you get charged - yet even though this negligence is substantiated in court you can go free? Did he go free on a legal technicality (happens here too, annoys the hell outta me) or have I misunderstood something?
He was charged after all, but acquitted. Just how, I dunno.
He should have been charged with manslaughter at least.
You shouldnt *think* you are shooting at a deer you should *know*.
When you pick up a firearm IMO you are responsible
for your actions, even the accidental ones.
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I definately think he is negligent, and guilty of something. I'm not familiar enough with that type of law to say what.
I was raised into hunting, even though I no longer do it. I received my first gun on my 10th birthday, but had been hunting with my father since about age 7 or 8. In Maine you had to be 10 to carry a gun, though.
One of the 1st, and most important rules of hunting that I was taught was to not only be sure of your target, but to be sure of the area beyond it as well. It is completely ignorant to shoot at a sound or a partially visible target. Had I ever done that, I would never have been allowed to hunt again.
That being said, only a fool goes into the woods during hunting season wearing anything white, and without flash orange.
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Ok thanks guys. I thought that maybe it was interpreted differently in the US, but it sounds like you have the same laws as here. We have professional jurors whereas you rely on private citizens. I suspect the answers lies within that.
Yah Martlet, was raised with that knowledge too; if you hit the woods during hunting season, make sure you either know where they hunt (very difficult) or wear orange hat and very visible clothes; colours that cannot be mistaken for anything but humans.
OTOH, the neighbor was close to her home walking her dog. She made a small mistake not dressing appropriately, but his mistake was enormous. Failure to identify the target before shooting - that's a BIG no no in the Swedish hunting world, and I suspect the same is true of the US one.
Yeh, definitely some kind of punishment for such neglect is in order.
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Originally posted by StSanta
Ok thanks guys. I thought that maybe it was interpreted differently in the US, but it sounds like you have the same laws as here. We have professional jurors whereas you rely on private citizens. I suspect the answers lies within that.
Yeh, definitely some kind of punishment for such neglect is in order.
It may have been the fault of the prosecuter for going for a homicide verdict. He may have had a better chance going for a negligent manslaughter verdict.
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Originally posted by Martlet
It may have been the fault of the prosecuter for going for a homicide verdict. He may have had a better chance going for a negligent manslaughter verdict.
Martlet has it. The prosecuter was the person at fault here. If he tries it as a murder, the jurors have two choices: guilty or not guilty. They can't reduce it to manslaughter themselves.
The prosecuter was more concerned about his career than going after the proper sentance.
MiniD
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I am in no way a lawyer, but I believe he can still be tried in a civil court for wrongfull death. This requires only a 2/3 majority to convict, not the 100% required in a criminal case. While this is still nowhere near enough for what he did, it is still something. And if successfull, it can burden him financially for the rest of his life. I'm sure there are ways around the financial obligations that prosecution in a civil court brings, but he will always have the fact that whatever he makes is subject to confiscation by the court. This is at least how I understand it to be. Like I said, not a lawyer.
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Wait a minute. The article doesn't give enough evidence. Was she in the woods or on the road? If she was in the woods a half-mile from the nearest home, away from public through-ways (i.e., a road) then maybe the verdict was proper. If she was on the road, then maybe he got off easy.
Either way, the lack of criminal conviction won't impede the prosecution of a wrongful death suit.
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wow...guess walking in the woods is DANGEROUS.....
if the moron didn't have a gun...that lady woulda had a pleasurable day walking her dog in the woods....
here's another scenerio......
Mark can you go walk the dog please......
sure MA.....
oh ya!!! Mark don't forget to wear your orange glow in the dark suit....just in case some hunters are out there....
but ma....that suit is aweful...my friends laugh at me.....
5 minutes later Mark leaves without the glow in the dark suit....cause it ain't cool see
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Ah, thanks Martlet/MiniD. In other words the DA was too greedy and tried to pin him for murder or somesuch?
Interestingly enough, manslaughter charges and others were also dropped by the hury.
The guy will feel horrible about himself for the rest of his life probably and while I sympathize with him and part of me just want to forgive him and let him try to get back to a normal life, he DID kill a human being through his recklessness. If it'd been my relative who died, this verdict would have upset me a great deal.
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The charges that were dropped were homocide charges... not manslaughter. Reckless homocide and negligent homocide. Both infer a prior knowledge of the lethality of the action... but don't require pre-meditation or motive.
What suprises me is a defense based on "I'd just shot a deer and thought I saw another one." How many deer can you shoot in Wisconsin? That'd be an instant poaching charge in Oregon.
MiniD
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Santa what prosecutors try to do is protect thier win/loss record.
prosecutors like to win, so the will only take cases from the officers that they can win or they try to ramp up cases that could get thier names in the news paper. my county atty wont take a DWI case unless he sees the video and the guy "looks drunk".
in this case the county atty plans on running for dist judge and dosent want to piss any possible voters off.
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Originally posted by Lazerus1
I am in no way a lawyer, but I believe he can still be tried in a civil court for wrongfull death. This requires only a 2/3 majority to convict, not the 100% required in a criminal case. While this is still nowhere near enough for what he did, it is still something. And if successfull, it can burden him financially for the rest of his life. I'm sure there are ways around the financial obligations that prosecution in a civil court brings, but he will always have the fact that whatever he makes is subject to confiscation by the court. This is at least how I understand it to be. Like I said, not a lawyer.
correct, bet that is for compensation for the loss. I won't result in a criminal record for him, or any sentence. It will just state that he was responsible for the death, and he has to pay for it out of his pocket.
SLO,
If you care more about your looks than your safety, I don't know what to tell you.
When I go into the woods during hunting season, I wear my orange vest.
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Originally posted by Martlet
SLO,
If you care more about your looks than your safety, I don't know what to tell you.
When I go into the woods during hunting season, I wear my orange vest.
I was makin up a fictional story martlet.....damn your always nit picking ain't ya.....never ends with you.
WHAT IF she had sent here SON instead of going HERSELF.....sorry bud.....but Hunting should be FAR FAR AWAY from residential areas.....damn the lady was just WALKING HER DOG....now your telling me walking your dog is DANGEROUS.....then you got lawyers playing WIN/LOSE game with humans.....She's dead...he walks away....go figure
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I was on a jury up here in Canada recently when they were trying a guy for second degree murder (drug dealer A shot drug dealer B in drug deal gone bad - multiple people from both sides involved)
The guy was definitely guilty of manslaughter and possession of an illegal weapon; he would have gone to jail for five to ten for that. But the crown wanted a big splash and went for murder - the accused pleaded self defence. After listening to the evidence and having the law explained to us by the judge, we had no recourse but to let the guy go free.
What a stupid system
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Originally posted by SLO
I was makin up a fictional story martlet.....damn your always nit picking ain't ya.....never ends with you.
WHAT IF she had sent here SON instead of going HERSELF.....sorry bud.....but Hunting should be FAR FAR AWAY from residential areas.....damn the lady was just WALKING HER DOG....now your telling me walking your dog is DANGEROUS.....then you got lawyers playing WIN/LOSE game with humans.....She's dead...he walks away....go figure
Ahhh,
well WHAT IF she was walking her dog on the MOON during MARTIAN hunting season, and she wasn't wearing GREEN, so they mistook her white scarf for a ......
the WHAT IFs could go on for ever.
It said she was a half mile from her home, we can all infer what we'd like, but we don't know the facts.
There ARE laws about hunting in residential areas, but it doesn't say how close she was to one.
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Slo, don't go pushing gun-control or something...
the 'hunter' should've been prosecuted and convicted IMO.. it was plainly negligent.
Hunters, and all gun toting people, need the proper training and respect.
Gun Control does not work so your stance on being afraid of all hunters or having to wear orange to walk in the park is so far out there I'd almost swear you were from .. (not gonna say it)
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say it wolf...come on...I know you wanna:D
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Where was this hunting area? We used to go out to the berkshires and there wasn't another camp for miles. It's hard to believe he was hunting right near someone's house.
Manslaughter sounds like the way to go, I don't see how they would charge him with murder. I would imagine his guns would be taken away.....responsibility.
SLO , a good size buck can feed your family for a month. Plz don't turn this into an anti gun thread. We've been down this road before, and if i'm correct, more people die in car accidents, ban the cars!
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lol Slo :)
I'm uh.. turning over a new leaf... or something
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Not trying to put the blame on the victim here, but I just thought of something. He did say he had just shot a deer. What would you do if you were walking throught the woods and heard gunshots?
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Id prance away from the scene and hope my scarf didnt look like a white tails bellybutton on the run.
In reality I think she was probaly applying first aid to the deer and he thought that if she revived it he would lose his kill...so he did what he had to do.
But honestly. You use the word neighbor and people imagine a residential area. In parts of canada your nearest neighbor is miles away.
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I am an avid hunter and this type of story is very, very sad.
The details in the story were a little vague to me, as in what exact charges the prosecutor sought. Also, not being a lawyer, I don't know all the intricacies of law. I was always familiar with murder, manslaughter, etc. - Reckless homicide? Not sure where it fits in.
But in any case, every hunter (at least in California) has to go through a Hunter's Safety Course before they are allowed to hunt in Calif. Rule number 4 of the "Ten Commandments of Firearms Safety," -http://www.remington.com/safety/10comm.htm
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Gofaster wrote: "Wait a minute. The article doesn't give enough evidence. Was she in the woods or on the road? If she was in the woods a half-mile from the nearest home, away from public through-ways (i.e., a road) then maybe the verdict was proper. If she was on the road, then maybe he got off easy."
I don't mean any offense to you Gofaster, but she has the right to hike in the woods without fear of being killed. Admittedly, she maybe should be aware that it is deer season and that it might be a bit riskier venturing out in the woods, specifically because of the reason that there are idiots out there who shouldn't be allowed to possess a gun.
Whether or not the guy deserves jail time is hard to say without all the facts, but he is completely liable for the woman's death and should be at LEAST held so in a civil case.
It's people like him that give the rest of us a bad name, that make it harder and harder for those of us who are safe, responsible gun owners/hunters to pursue our hobbies.
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It was a freak accident and the woman is dead. What GOOD what it do to send the man to prison? Is this incident going to happen again? Probably not.
Punishment just for the purpose of punishment is ignorant IMO. Use it as a deterrent or to prevent something from happening again. But no need to ruin this guy's life over it.
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she was on a road , not a highway, a unimproved road in the woods.
it was black powder deer season , which is at a differnt time than regular deer season. she may not have known that.
anytime you fire a gun you are responsible for where the bullet goes and what it hits, thats YOUR bullet.
you must always know what you are shooting at, even if you can see the whole deer, you still may not have a shot , you have to be able to hit a vital area to kill the deer with one shot.
if the deer is only wounded , you may never find it, even with a kill shot the deer may run for a good distance befor it dies.
he should have been charged with something like manslaughter.
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Just to point out a few things:
It was a muzzleloader. This implies less hunters in the woods, less general populace knowledge that hunters are in the woods, and at least in Minnesota less restrictions on amount of Blaze /Hunter Orange required by the hunter. Additionally, muzzleloaders are typically less accurate and have less effective range.
In Wisconsin, regular firearm and archery hunters are allowed multiple deer -- usually does as a way to curb the deer population. So shooting multiple deer is not per se illegal. Also, funny thing about the DNR or Wildlife Dept is that they are trying to reduce the deer population in and around people areas. To do that, they allocate more license tags for those targeted areas. In Minnesota, the minimum required plot of ground to hunt is 10 acres. Other restrictions are not within 500 feet of a building. So if I owned 10 acres in a semi-rural town that did not have a non-discharge of firearms rule (and sometime even if the city has one) I can hunt and shoot. Not saying I would, but it is legal.
While I am thoroughly saddened by this persons act, I don't know if it constituted the homocide / murder charge. Maybe manslaughter or some lesser criminal charge. In any case, I would not have wanted to be the jury or the defendant. They were both in a loose, loose situation.
Now that I've type all this -- just keep on moving on, nothing hear to read.
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does the dog have to wear orange too?
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Originally posted by Furball
does the dog have to wear orange too?
I put orange on my dogs during hunting season.
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Originally posted by davidpt40
It was a freak accident and the woman is dead. What GOOD what it do to send the man to prison? Is this incident going to happen again? Probably not.
Punishment just for the purpose of punishment is ignorant IMO. Use it as a deterrent or to prevent something from happening again. But no need to ruin this guy's life over it.
yeah right - no need to ruin HIS life over it :rolleyes:
just the womans life he killed and the ones she left behind...
the moron should pay, if not in the cell with bubba, he should lose his shirt in court .... freakin moron - playing davy crocket in the woods, firing at "flashes of white"
how many deer you think this genius has shot in the ass?
somebody show this rocket scientist the meat dept at his local grocercy store ...
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What are the three rules of guns?
1. It's always loaded
2. Don't point it at anything you don't want to kill
3. Be sure of your target and what's behind it
As a prosecutor myself, here is what I would have done (of course based on the information provided in the first post. There could be much more to it)
13-1102. Negligent homicide; classification
A. A person commits negligent homicide if with criminal negligence such person causes the death of another person.
B. Negligent homicide is a class 4 felony.
From there you could deal with it several different ways. Based upon what StSanta posted, I would offer him a plea to Disorderly Conduct with a Weapon:
13-2904. Disorderly conduct; classification
A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:
6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.
B. Disorderly conduct under subsection A, paragraph 6 is a class 6 felony.
For a sentence I would give him three years supervised probation. Also, becuase he was convicted of a felony, he loses the right to ever posses a gun again.
This is similar to what the Wisconsin prosecutor offered. The jury felt it was an accident. They are his peers and felt that he did not deserve punnishment. It would be easy to say that one attorney was better than the other, or that the jury was just a bunch of idiots, etc. etc. Same things any attorney or spectator says when a jury comes back with a verdict they didn't like. But that is our system. And when it works, as it did here, it's the best in the world.
*Notes
1. I don't know all the facts. I am just saying how I would charge it based upon what I've read about it. The prosecutor in the case might have had a good reason for what he did.
2. I am a gun owner and a hunter. Ask me and I'll show you a picture of the mule deer I shot this year. ;)
3. The laws mentioned above are from Arizona.
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We had "stands"(places where you sit quietly and wait). If you went off daydreaming the deer would get close enough to startle you. The easy part was shooting them, what I hated was having to track them down if they took off runnin. It's pretty freaky what you can put in a deer and watch it run off.
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Dune, in a case like that. Can the family file for wrongful death?
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Originally posted by Lazerus1
I am in no way a lawyer, but I believe he can still be tried in a civil court for wrongfull death. This requires only a 2/3 majority to convict, not the 100% required in a criminal case. While this is still nowhere near enough for what he did, it is still something. And if successfull, it can burden him financially for the rest of his life. I'm sure there are ways around the financial obligations that prosecution in a civil court brings, but he will always have the fact that whatever he makes is subject to confiscation by the court. This is at least how I understand it to be. Like I said, not a lawyer.
Small corrections.
It's not a 2/3's majority. It is a difference in the burden of proof on the plantiff/prosecution side. In a criminal trial, the prosecution must prove its case beyond a reasonable doubt. In a civil trial, the plantiff must prove its case by a preponderance of the evidence or more likely than not. Each juror must be 51% sure that the plantiff has proven its case.
He would then be subject to a civil judgement. Judgements can be paid in different ways, but that's the civil world and I stay out of it. ;)
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Originally posted by Sixpence
Dune, in a case like that. Can the family file for wrongful death?
Yes, think back to the OJ trial. He was acquited in criminal court, but found responsible in civil court.
Here's another trick. If he is found guilty in criminal court, he can use that to show he's also guilty for the civil side. Because the burden of proof is higher on the criminal side, it automatically (IIRC) means he's guilty on the civil side.
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He is definitely guilty of Negligent Homicide. He was trying to shoot a deer he couldn't see in the ass, and killed a human.
He's not a hunter and he's not a Sportsman. He's a danger to anyone he's near. He wouldn't have walked if I'd have been on that jury.
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Man gets 180 days in hunting death
Thursday, June 05, 2003
ZANESVILLE, Ohio (AP) — A man who shot and killed his 13-year-old son with an arrow in a hunting accident pleaded guilty yesterday to negligent homicide and was sentenced to 180 days in jail.
Muskingum County Judge Kelly Cottrill suspended half of Alan Foster’s sentence, saying it was still a "significant punishment’’ for the crime.
By pleading guilty, he avoided a trial that was scheduled to start yesterday and a possible sentence of two years in jail if convicted, said Foster’s attorney, Christopher Pagan.
"He is remorseful beyond words,’’ Pagan said.
Foster, 40, of Middletown, told wildlife investigators that he thought he was shooting at a deer when he fired his crossbow at something moving in an adjacent field on Oct. 5, 2002.
The arrow hit his son, Jason Foster, in the chest, and the boy died about two hours later.
The judge also ordered Alan Foster to perform 100 hours of community service.
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I think living with the knowledge of killing your own son is punishment enough and will last a lifetime. He should be banned from ever hunting again for such gross negligence, however. Although I doubt he'll be firing a crossbow anytime soon.
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Accidental hunting fatalities have been around FOREVER!. And so has this debate.
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Did anyone check his license to see if he was over his limit on bystanders?
-Sik
"I shot the maximum my permit would allow:
Two game wardens, Seven hunters, and a Cow"
-unknown
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I can't imagine the pain that man who shot his son went thru...can you imagine,, you want to share the things you enjoy with him, and then be responsible for his death? :(
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but to shoot at movement? wow
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That woman had no business slinking around in the woods wearing a scarf that resembles a deer's tail. She was probably an anti-hunting activist and suffered a fate not unlike people who decide to become human shields or stand in front of bulldozers.
I feel sorry for the hunter who was decieved into shooting this woman.