Beware of turning tragic accident into murder

The death of four-year-old Marco Shemwell was a tragedy which brought me to tears. As a father, I immediately envisioned the enormous pain that I would feel if my son were taken so suddenly from my life.

Motorized vehicles create a circumstance wherein massive machines of great power are unleashed though our communities. One can find daily examples of pedestrians and bicyclists meeting an unfortunate demise because of the primacy of transport that our culture has granted cars and trucks. I never feel completely at ease in traffic, and rue the danger that industrialized transportation has created.

Later, while reading comments on a local website, I was struck by the vindictive rush to judgment against young Jacob Heil.

Even when I still believed he was a drunk college kid who made a terrible mistake, I couldn’t believe the willingness of some to wish him harm. Then I read the rest of the story, and am dumbfounded by the illogical inconsistencies of Kentucky statutes that leave him potentially charged with a capital crime for what was apparently an accident in the true sense of the word.

For most of common law history, the charge of murder required malice aforethought. That is to say a willingness before the action to take the life. Modern definitions have gradually included “without valid excuse” as a means of charging people who didn’t set out to kill yet did so due to gross recklessness.

In the latter part of the last century, due in part to vigorous lobbying efforts, driving under the influence was added as a specified example of “without a valid excuse.” This made DUI homicide a capital offense in our commonwealth, despite similar specifications under KRS 507 that killing during abuse of a child under the age of 12 is manslaughter and not a capital offense.

Furthermore, the patently irrational concept of being charged as an adult for an offense by a minor was encoded by the move in the legal drinking age from 18 to 21. “You should know better that you don’t know better” is the federally mandated position. Kentucky has doubled down on that oxymoron by creating the zero-tolerance policy whereby those under 21 are guilty of DUI if their blood-alcohol level is greater than O.O2 percent.

The presence of ‘bloodshot eyes” and the “strong smell of alcohol” is so common in purported traffic complaints as to defy veracity. I have not seen many bloodshot eyes as a sign of intoxication, despite significant emergency-room experience with alcohol consumption. There is great doubt as to whether Heil was actually close to what we consider clinically intoxicated.

As a physician who makes driving-safety determinations, I frequently tell my patients that they cannot drive any more because driving is a privilege, not a right. Furthermore it is a public-safety hazard for those who should not drive to get behind the wheel. I also must admit that I have no direct knowledge of, nor connections to, this tragic case.

I find it absolutely horrific to think that a young man might be charged with capital murder for a blood level that is not generally considered to be intoxicated because he is “old enough to know he isn’t old enough to know,” especially when someone else is getting lesser charges for accidentally killing their young during purposeful abuse.

I hope that the court system realizes that the Kentucky statutes do not lead to justice as readily as one would hope, and that a truly fair outcome occurs. If zero tolerance is to be levied justly, it must be the rule of law for all adults. Heil finds himself in such jeopardy because the state, like the fraternity, expects more from those who have yet to be fully initiated.