Forgotten
Child

I forgot the child was in the car.

No charges, but Warschauer faces a life of grief

What the law says

Because Mark Warschauer was not aware his child was in the back seat, he could not have had criminal intent, lawyers said.

In deciding not to charge him, prosecutors relied, in part, on a 1960 appellate court ruling that says: "A mere lack of foresight, stupidity, irresponsibility, thoughtlessness or ordinary carelessness, however serious the consequences may happen to be, do not constitute culpable negligence.

"There must exist in the mind of the accused at the time of the act & an awareness of the consequences of the act, and a wanton disregard of them."

Father won't be charged in baby's death
UCI professor was not criminally negligent, says D.A.'s office


By Greg Hardesty
For Irvine World News

A UC Irvine professor who left his sleeping 10-month-old son in his car, resulting in the infant's heat-related death, will not be charged with a crime because it was an accident, the Orange County District Attorney's Office said Friday.

Mark Warschauer, 49, had forgotten about his son, Michael, when he went to work, and therefore cannot be charged with involuntary manslaughter, Senior Deputy District Attorney Matt Murphy said.

There's "no question he was negligent, but he wasn't criminally negligent,"Murphy said. "Despite the feeling in our office about the tragic death of this child, the law in this case is very clear."

Warschauer, vice chairman of UCI's Department of Education, could have faced up to four years in prison.

"Mark and I are grateful to the District Attorney's Office for allowing us to grieve in peace,"said Keiko Hirata, Warschauer's wife and a lecturer at UCI. "We plan to dedicate ourselves to educational efforts to help other families avoid this kind of tragedy."

A parent or guardian has to be aware they are putting their child in danger in order to be criminally culpable, legal experts say.

The Warschauer decision follows a recent case in Lancaster that had a different outcome. Day-care operator Leslie Smoot pleaded not guilty in July to two charges of child abuse for leaving her two foster sons in her sweltering Cadillac.

Smoot allegedly told police she thought another adult was going to take the children out of the car, implying that she – unlike Warschauer – knew that she had left them behind.

In most cases of children dying of heat stroke in cars, authorities decline to file criminal charges.

Of the nation's 39 cases so far this year – including three in California – only nine have resulted in charges being filed, according to 4 R Kids Sake.

"I understand why some people would be angry (at no charges being filed)," said Tammy Russell, co-founder of the Corona advocacy group. "People immediately think, ‘How could you forget your child in a car?' But these things happen."

Death can come swiftly.

A potentially lethal temperature of 105 degrees can be reached in less than 20 minutes when it is 80 degrees outside and when a window is cracked open, studies show.

Some cases around the country mirror the Warschauer decision.

In June, a high school teacher in Las Vegas was cleared of criminal charges for leaving his 7-month-old son in a van while he worked.

Authorities said David Fish, 37, who had broken his usual morning routine by going for coffee at Starbucks, did not intentionally neglect or abuse his son, Hayden.

"It can happen to anyone," said Dave Fish, Hayden's grandfather and an appraiser in Corona del Mar.

In a 2001 case, no charges were filed against a father in North Carolina who left his 6-month-old son in his car, thinking he'd dropped him off at a baby sitter's house.

Other cases have resulted in charges or pleas.

Lori Kelly, a mother in Boise, Idaho, pleaded guilty last month to involuntary manslaughter for forgetting to drop off her 2-month-old son at day care and leaving him in the car while she worked.

Her sentence included three years probation and 120 hours of community service.

Although the Kelly case was similar to Warschauer's, Russell of 4 R Kids Sake said the way that laws are interpreted play a role in whether a person is charged. In Idaho, prosecutors compared what Kelly did to killing someone by running a stop sign that wasn't seen.

In Orange County, prosecutors filed charges against Beverly Jean Ernst in 1986. Her 3-month-old twins died after she left them in her car outside a Garden Grove business.

Ernst was sentenced to four years in prison for child neglect, despite arguments from her defense attorney, Dennis O'Connell, that she had asked her boyfriend to watch her kids while she slept.

Determining when negligence rises to criminal negligence can be a tough call.

"These are extremely difficult decisions," said Dan Nishigaya, a deputy district attorney in San Jose who prosecuted a young father for leaving his 10-month-old son in a car in July 2001.

"One of the main things we look at is what is going on in (the accused person's) life," Nishigaya said. "And to some extent, we make personal judgments about that."

That can be a problem, according to O'Connell.

"There appears to be a great inconsistency in the way they charge or don't charge" these cases, he said.

Scholars at Wake Forest University are researching trends in how prosecutors decide to charge.

"Do they tend to go after the mother or the father? The baby sitter or the parent?" asked Jennifer M. Collins, assistant professor of law at the North Carolina university. "These are some of the questions we will be asking."

A parent or guardian under the influence of drugs or alcohol is likely to be charged, according to experts.

Caretakers or guardians not related to a child are more likely to be prosecuted, because biological parents typically suffer more greatly, experts said.

"The law does not support criminal liability on these facts," said Jennifer L. Keller, a prominent defense attorney who represents Warschauer.

"And in any case, no greater pain could ever be inflicted on this loving father than having to live with the loss of his beloved son."

http://www.irvineworldnews.com/Astories/oct9/death1.htm
Oct. 9, 2003