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First in flight, but last in mercy; By grafting murder law onto DWI cases, North Carolina may be running roughshod over traditional notions of justice.

KITTY HAWK, N.C. — KITTY HAWK, N.C. -- The large sign next to the four roadside crosses reads "DRINKING + DRIVING CAN COST YOU A PRECIOUS GEM." Garnished in flowers, each simple white cross bears a name: Megan, Angie, Amanda, Shana. On April 6, 1999, at this site on Highway 158 in Kill Devil Hills, four 17-year-old girls last saw each other.

The crash instantly killed Megan Blong, Angie McGrady and Amanda Geiger, all from New Jersey. Shana Lawler, whose family had recently moved to North Carolina's Outer Banks, died six days later. Only Michael Horner, 17, sitting in the front passenger seat of the Lawler family's Chevrolet Cavalier, survived, with serious injuries.

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Last month, Michael returned to the scene of his beach-vacation-turned-nightmare. He came to testify in court that his friend, Megan, had waited for a green traffic signal before she drove into the intersection, intending to turn left onto the 158 bypass. He came to tell once again of the Mitsubishi Montero that barreled through the opposing red light, broadsiding the old Cavalier.

He also came to help a Dare County jury decide that 30-year-old Melissa Lynn Marvin, who, witnesses testified, drank two 16-ounce margaritas and three shots of 100-proof schnapps in a two-hour period before running that red light, committed murder.

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Thousands of Marylanders visit North Carolina's lush barrier islands each year, many staying in their own dream-of-a-lifetime beach cottages. They all know this intersection, at Colington Road, just south of the Wright Brothers Memorial, before the fast-food stretch of 158 known as "French Fry Alley." They also know how much alcohol fits into their idea of a good-time vacation.

Before they get behind the wheel again, after having had a few beers at an Outer Banks bar or restaurant, I suggest these Marylanders learn the law. The state that was first in flight nearly a century ago is hardly first in compassion.

The Melissa Marvin trial opened Monday, Jan. 10, with a pool of 400 jurors reporting to the Manteo courthouse, and ended the next Saturday afternoon, when Dare County Superior Court Judge Jerry R. Tillett passed sentence. Nine men and three women deliberated only four hours Friday before finding Marvin guilty of four counts of second-degree murder and one count of "assault with a deadly weapon inflicting serious injury."

Said one Kitty Hawk lawyer: "There was such a lynch-mob mentality in that courtroom. You cannot imagine."

Applying North Carolina's structured sentencing law, the judge imposed a prison term of 174 to 218 months for each murder count and 24 to 29 months for the assault. He chose not only to "aggravate" Marvin's sentence, punishing her again for the facts that proved her crimes, but also to run the terms consecutively.

Marvin, a waitress, student and competitive surfer who has lived on the Outer Banks for 10 years, must serve 60 years -- the combined minimum --without parole.

Most locals reacted to the verdict with shock. A remorseful Marvin received a life sentence for a crime she did not "intend" -- in any sense of the word -- to commit. But, in seeking murder convictions, lead prosecutor Robert P. Trivette clearly intended to send a "message": Drink, drive and kill in the Tar Heel State, and you will be sorry beyond measure.

As sorry as I am for the heartbreaking loss that four families have suffered, I hear a different message. It's a message about justice. Or the lack thereof.

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North Carolina's chief district attorneys and judges, all of whom are elected -- even the seven justices on the state Supreme Court -- have allowed public outrage over drunken driving, and their desire for political popularity, to undermine the rule of law. In grafting murder law onto DWI deaths, through slam-dunk opinions for the prosecution, the courts have made of the people they serve merciless law-and-order taskmasters.

We have an eye fixed on punishment but not on prevention or rehabilitation. Drunken drivers -- some of whom are alcoholics, as acquaintances say Marvin is -- are people we revile, not friends and neighbors we know or sick people we want to help.

North Carolina prosecutors are routinely charging drunken drivers who kill with second-degree murder, on an "implied malice" theory. Intent to kill need not be proved, and drivers need not be aware of their dangerousness. Grossly reckless conduct is sufficient for a conviction.

Statewide, inventive district attorneys have obtained three verdicts of first-degree DWI murder, under the felony-murder rule: The "murder" is said to have occurred during the perpetration of an assault with a deadly weapon -- the vehicle being a deadly weapon. A DWI felony-murder conviction out of Forsyth County is on appeal before the North Carolina Supreme Court and being closely watched.

Marking a national "first," the prosecutor in State vs. Jones, Vincent Rabil, sought -- but the jury did not recommend -- the death penalty.

North Carolina leads the country in DWI murder prosecutions. But, said John Henry Hingson III, chair of the National Association of Criminal Defense Lawyers' driving-under-the-influence task force, "there are very few other states in the race." They include California, Alabama and Florida. Not Maryland, which appears forgiving by comparison.

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Maryland appellate courts have ruled that not only do drunken drivers lack the "viciousness" and "willfullness" for implied malice, but state vehicular-death statutes pre-empt common-law homicide. The maximum penalty for Maryland's "manslaughter by motor vehicle," which requires gross negligence, is 10 years and $5,000; for "homicide by motor vehicle while intoxicated," five years and $5,000.

Witnesses who saw Melissa Marvin before the fatal collision described her driving as erratic, with frequent lane-changing and excessive speed. One woman testified that Marvin drove with her left foot up on her sport utility vehicle's dashboard. Marvin's blood alcohol level four hours after the crash tested at 0.21 percent -- far in excess of the legal limit of 0.08 percent. (North Carolina is one of 15 states -- not including Maryland -- with an adult DWI limit of 0.08.)

As damning as this evidence was, however, Marvin's two previous convictions for reckless driving (in 1991 and 1996), plea-bargained reductions of DWI charges, sealed her fate. In step with a questionable practice established in other DWI-murder cases, Tillett allowed these "bad acts" as proof of malice. Marvin's past -- and the system's failure to prevent or treat her destructiveness -- came back to haunt her.

Like most Americans, North Carolinians once regarded DWI fatalities as mere traffic "accidents," not crimes. They saw drunken drivers as social drinkers and thought, "There, but for the grace of God, go I."

To coax juries into getting tougher, the North Carolina General Assembly enacted in 1973 "felony death by vehicle," defined as an unintentional death caused by a legally impaired driver. Because felony death was punishable by about a year's imprisonment, lenient juries embraced it in lieu of involuntary manslaughter, which carried a three-year sentence. Manslaughter -- an unlawful killing without malice caused by "culpable negligence" -- had always befuddled juries: They had to judge a driver's recklessness -- Was it "gross"? -- and decide if he had "disregarded the consequences" of his acts.

Lax attitudes toward drunken drivers began to recede with the rise of Mothers Against Drunk Driving, founded in California in 1980. North Carolina initiated its own crackdown in the 1983 Safe Roads Act, which introduced a tough, five-level scheme of punishment for DWI offenders that still exists.

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Then, in 1984, the North Carolina Supreme Court summarily ruled that the recklessness of a very drunk Lance Albert Snyder, whose speeding Oldsmobile Cutlass ricocheted like a pinball on a Winston-Salem highway before he ran a red light and killed three people, could be considered malice. He could be guilty of second-degree murder. This proved the judicial turning point.

Soon, the courts would decide that driving while impaired is, ipso facto, culpable negligence. If an impaired driver kills, he's guilty of manslaughter. No more questions asked. Then, they would rule that felony death has the same elements as manslaughter and, therefore, cannot be considered a "lesser-included offense." This means a judge need not instruct a jury to consider both involuntary manslaughter and felony death by vehicle in a drunken-driving death.

With felony death and manslaughter being "equal," said Trivette, "I can never imagine a situation, given DWI and a death, that I'm going to charge less than involuntary manslaughter. From a prosecutor's point of view, it doesn't make sense to charge the less serious charge."

Essentially, the courts raised the stakes. They "did away" with felony death by making involuntary manslaughter easier to prove, and they have done the same to involuntary manslaughter with easier proof of murder.

Malice can be "implied" in North Carolina when "an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief."

While this legal gobbledygook would appear to restate the gross negligence required for involuntary manslaughter, the courts have said that a person must intend to commit an "inherently dangerous" act. They have also ruled that anyone who drinks to the point of intoxication and drives has such intent. Never mind that thousands of North Carolinians drive each week while being "impaired," reach their destinations without harming anyone and regard themselves as in control, not dangerous.

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So how does one drive "recklessly" and "wantonly" and "without regard for human life"?

"I wish there were statutes that defined these words. They're impossible for people to understand," said Trivette, who stressed Marvin's "selfish attitude" and "egregious behavior."

The courts have cooperated here, too, finding that a DWI-murder defendant who drives knowing that his license is permanently revoked, or who uses false license tags and lies to inspection personnel to get a sticker, has no "regard for social duty" and is "deliberately bent on mischief." Speeding? Running a red light? The same.

Most important, the courts have ruled that anyone who drives drunk after previous DWI convictions manifests malice. Allowing such "priors" into evidence, despite a well-known rule designed to exclude bad acts that would unduly prejudice the jury against the defendant, is a backboard-shattering slam dunk for the prosecution.

Once, "you had one or two second-degree DWI murder cases a year," said Forsyth County's Rabil. "Now the Court of Appeals is not even publishing opinions. It's just affirming them routinely."

North Carolina is heading toward murder prosecutions of drunken drivers who, unlike Marvin, have no previous DWI convictions and exhibit no signs of recklessness. Soon, DWI by itself will equal second-degree murder.

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"What's going on is very, very scary," said Charlesena Elliot Walker, a state assistant appellate defender who lost a key 1998 DWI-second-degree-murder appeal. "People need to know that if they have a few beers and then drive and accidentally kill somebody, they can be tried for murder in North Carolina. People need to know that this can happen to ordinary, regular people who have a couple of beers."

In October, an alleged drunken driver killed a 30-year-old Virginia woman at the same intersection where the four white crosses serve as a poignant reminder of loss and injustice. A Kill Devil Hills woman has been charged with second-degree murder. Potential jurors might be reporting to Manteo for her trial this summer. Amid swigs of their Budweisers, Marylanders visiting our island paradise should pay attention, because "there, but for the grace of God . . ." makes a poor defense.

Ann G. Sjoerdsma is an attorney/mediator and free-lance journalist who lives in Kitty Hawk, N.C. She can be reached at annsj@interpath.com


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