Viva La Cola!

Founded in January 2009, PubliCola is a blog about Seattle written by journalists who are dedicated to non-partisan, original daily reporting that prioritizes a balanced approach to news. Started by longtime local editor and award-winning reporter Josh Feit, PubliCola is the first online-only news site in state history to get media credentials to cover the state capitol.

PubliCola was off and running. In June 2009, PubliCola hired another award-winning journalist, super-sourced Seattle city hall reporter Erica C. Barnett.

People were afraid that blogging would change journalism. Instead, we believe journalism can change blogging. Twenty-first century journalism may look and feel different, and yes Erica isn't afraid to get cranky, but we're committed to making sure online news still delivers independent, reliable, even-keeled coverage. And most of all, we're committed to making sure the coverage sparks honest civic debate.

Bringing you cola for the people, PubliCola is named after Publius Valerius PubliCola, the alias for the authors of the Federalist Papers—the original bloggers.

The first online-only news site in state history to get media credentials to cover the state capitol and Seattle city hall, PubliCola has been called a “must-read” by the Seattle Post Intelligencer and a hot “New Media Mover and Shaker” by Seattle Magazine—which also cited our own Erica C. Barnett as the city's No. 1 news nerd.

Carr: Better for Bikers than Holmes?

I’m a civil-rights advocate who believes a vibrant nightlife is important to a city’s culture and economy.

I’m also an avid biker who believes even more strongly that cyclists need more bike facilities, better laws, and more respect from drivers and public officials.

So who should I vote for for city attorney?

It’s well established that current city attorney Tom Carr has a lousy record on nightlife. (See: Operation Sobering Thought, the poster ban, all-ages shows, good neighbor agreements, etc.)

What’s less well-known is that he has an awesome record on bike issues. For example, he’s consistently opposed police harassment of cyclists, intervened when cops have refused to take accident reports from people who were hit by cars on their bikes, and been a staunch advocate for the so-called “vulnerable user” law, which would make it a crime, not just a traffic infraction, to seriously injure or kill someone with your car.

Currrently, unless you’re drunk or driving in a manner that’s willfully reckless (a very high bar to pass), you can hit and kill a cyclist and drive away with nothing more than—at most—a traffic infraction. The new law—which failed to make it out of committee last session, despite advocacy by Carr and others including the Cascade Bicycle Club—would make severely injuring or killing a cyclist or pedestrian while committing a traffic infraction a misdemeanor punishable by up to a year in jail.

City Attorney Tom Carr and State Sen. Adam Kline

City Attorney Tom Carr and State Sen. Adam Kline

Carr’s advocacy for the law is one reason Cascade has endorsed Carr, who also happens to be an avid cyclist; the group’s advocacy director, David Hiller, says the group has consistently “been able to deal with [cyclists'] issues quickly and conclusively thanks to Tom’s help. He’s one call away for me, literally.” Hiller adds, “His advocacy on behalf of the injured and killed has been invaluable.”

Carr’s opponent Pete Holmes, in contrast, says he would not favor making assault by vehicle a misdemeanor. “It’s trying to again criminalize traffic infractions without showing how it’s going to improve public safety,” Holmes says. “What does a criminal prosecution accomplish? It’s not going to bring back the bicyclist. It’s not going to improve public safety. The money that we have spent unnecessarily prosecuting [drivers] could have been better spent on driver and bicyclist education. … Do we want to terrify drivers” by making them fear criminal prosecution, he asks.

Holmes says he would prefer an approach more like Oregon’s, where drivers who injure or kill cyclists while breaking traffic laws get their licenses suspended and are subject to heavy fines and retraining.

As for the other issues Hiller mentions, Holmes says they aren’t the city attorney’s responsibility.

If police are harassing cyclists, he says, “I would hope that people would file complaints with [the Office of Professional Accountability, an arm of the police department when that happens. And if they aren’t taking reports? “That’s another example where something is already required by law,” he says.


  • Transpo guy

    Great report! What’s a pot smoking cyclist to do? I guess since I’m more worried about getting killed while biking by some inattentive driver talking on his cell phone than I am about getting busted for smoking pot, I’m going to vote for Tom Carr.

  • Transpo guy

    Great report! What’s a pot smoking cyclist to do? I guess since I’m more worried about getting killed while biking by some inattentive driver talking on his cell phone than I am about getting busted for smoking pot, I’m going to vote for Tom Carr.

  • abc

    Currrently (sic), unless you’re drunk or driving in a manner that’s willfully reckless (a very high bar to pass), you can hit and kill a cyclist and drive away with nothing more than—at most—a traffic infraction.

    Why do you keep misrepresenting the law? Clearly just driving with disregard for the safety of others is enough to charge.

    RCW 46.61.520
    Vehicular homicide — Penalty.

    (1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:

    (a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or

    (b) In a reckless manner; or

    (c) With disregard for the safety of others.

    (2) Vehicular homicide is a class A felony punishable under chapter 9A.20 RCW, except that, for a conviction under subsection (1)(a) of this section, an additional two years shall be added to the sentence for each prior offense as defined in RCW 46.61.5055.

  • abc

    Currrently (sic), unless you’re drunk or driving in a manner that’s willfully reckless (a very high bar to pass), you can hit and kill a cyclist and drive away with nothing more than—at most—a traffic infraction.

    Why do you keep misrepresenting the law? Clearly just driving with disregard for the safety of others is enough to charge.

    RCW 46.61.520
    Vehicular homicide — Penalty.

    (1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:

    (a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or

    (b) In a reckless manner; or

    (c) With disregard for the safety of others.

    (2) Vehicular homicide is a class A felony punishable under chapter 9A.20 RCW, except that, for a conviction under subsection (1)(a) of this section, an additional two years shall be added to the sentence for each prior offense as defined in RCW 46.61.5055.

  • M

    Actually Holmes’ plan is more reasonable and cost-friendly. Jail time will cost the public more than it’s worth. There’s already jail over-crowding and they suck up too much of our dollars (what’s left after Tim Eyman slashes and burns or what cronies misplace on the waterfront tunnel).

    The Holmes/Oregon way sounds like the better one here.

  • Steve

    Cyclists for a guy named Carr?
    None of this article makes sense. Is this the same Carr who gave a rabbi with a massive motor vehicle record community service for killing a kid in a crosswalk?

  • Steve

    Cyclists for a guy named Carr?
    None of this article makes sense. Is this the same Carr who gave a rabbi with a massive motor vehicle record community service for killing a kid in a crosswalk?

  • http://sopc.wordpress.com/ Kevin Futhey

    I don’t think ratcheting up penalties within the existing legal framework is the best way to improve safety, either. Point for Holmes.

  • http://sopc.wordpress.com Kevin Futhey

    I don’t think ratcheting up penalties within the existing legal framework is the best way to improve safety, either. Point for Holmes.

  • Brian K

    Thanks for this ECB – you’ve now made my decision harder rather than easier. I thought I was for Holmes but if you’ve represented his view fully here, he doesn’t see the potential for any deterrence as *part* of the solution. Disturbing.

  • Brian K

    Thanks for this ECB – you’ve now made my decision harder rather than easier. I thought I was for Holmes but if you’ve represented his view fully here, he doesn’t see the potential for any deterrence as *part* of the solution. Disturbing.

  • Mahtli69

    Attempting to legislate an idealized viewpoint, such as “bikes and cars can safely coexist on the same thoroughfare”, is nonsense.

    If “vulnerable user” laws are attempting to save lives, they will be about as successful as outlawing gravity.

  • Mahtli69

    Attempting to legislate an idealized viewpoint, such as “bikes and cars can safely coexist on the same thoroughfare”, is nonsense.

    If “vulnerable user” laws are attempting to save lives, they will be about as successful as outlawing gravity.

  • Scott

    What ACB says. Erica’s statement about “recklessness” is 100% wrong. Please, read the statute. And then read the jury instruction for the “disregard for the safety of others” prong of the vehicular homicide statute, which explains as follows: “Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence.” Publicola is generally a very good publication, but Erica’s repeated misstatement regarding “willful recklessness” is demonstrably inaccurate. And if Cascade and Carr are citing a nonexistent “willful recklessness” standard for vehicular manslaughter, they are being misleading.

    Holmes’s support for the Oregon law makes a great deal of sense. The Oregon law (1) requires a court appearance for defendants, and (2) allows a $12,000 fine or 100-200 hours of community service with driver education. For “ordinary negligence” on the part of the driver, that’s a severe penalty. And unlike Carr’s attempt to criminalize “ordinary negligence” (keeping in mind that “aggravated negligence” is already criminalized), it would probably actually make it through the legislature and be signed into law.

  • Scott

    What ACB says. Erica’s statement about “recklessness” is 100% wrong. Please, read the statute. And then read the jury instruction for the “disregard for the safety of others” prong of the vehicular homicide statute, which explains as follows: “Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence.” Publicola is generally a very good publication, but Erica’s repeated misstatement regarding “willful recklessness” is demonstrably inaccurate. And if Cascade and Carr are citing a nonexistent “willful recklessness” standard for vehicular manslaughter, they are being misleading.

    Holmes’s support for the Oregon law makes a great deal of sense. The Oregon law (1) requires a court appearance for defendants, and (2) allows a $12,000 fine or 100-200 hours of community service with driver education. For “ordinary negligence” on the part of the driver, that’s a severe penalty. And unlike Carr’s attempt to criminalize “ordinary negligence” (keeping in mind that “aggravated negligence” is already criminalized), it would probably actually make it through the legislature and be signed into law.

  • Scott

    Brian K @6: Read the Oregon statute before making any judgments. It’s at ORS 811.135. Oregon’s approach is very much about deterrence, it just doesn’t criminalize “ordinary negligence.” And despite what Erica says, driving with “aggravated negligence” (less than recklessness) and killing a bicyclist is currently a felony in Washington.

    Also keep in mind that Carr doesn’t have the power to criminalize ordinary negligence; he’s just trying to get the legislature to do it, which the legislature likely will not do. If we push for the non-criminal Oregon approach, it’s far more likely that a law protecting bicyclists will actually get passed.

  • Scott

    Brian K @6: Read the Oregon statute before making any judgments. It’s at ORS 811.135. Oregon’s approach is very much about deterrence, it just doesn’t criminalize “ordinary negligence.” And despite what Erica says, driving with “aggravated negligence” (less than recklessness) and killing a bicyclist is currently a felony in Washington.

    Also keep in mind that Carr doesn’t have the power to criminalize ordinary negligence; he’s just trying to get the legislature to do it, which the legislature likely will not do. If we push for the non-criminal Oregon approach, it’s far more likely that a law protecting bicyclists will actually get passed.

  • abc

    intervened when cops have refused to take accident reports from people who were hit by cars on their bikes,

    What exactly does that mean? Hiller calls him and he races to the scene and tells the police what to do?

    Pete’s right, this is an issue for OPA and ironically Carr did everything to stop OPA oversight. Has Carr filed against cops that wouldn’t write up tickets?

  • abc

    intervened when cops have refused to take accident reports from people who were hit by cars on their bikes,

    What exactly does that mean? Hiller calls him and he races to the scene and tells the police what to do?

    Pete’s right, this is an issue for OPA and ironically Carr did everything to stop OPA oversight. Has Carr filed against cops that wouldn’t write up tickets?

  • http://www.elsewhere.org/ Josh

    From the jury instructions:

    To operate a motor vehicle in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences.

    Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances.

    I just wrote my own post about this, so I’ve been doing a bunch of reading through the statutes and jury instructions. I think it’s likely that Erica is using the plain meaning of “willful recklessness”, not the refined legal definition.

    Seriously, can you think of any behavior more negligent than the legal definition of “ordinary negligence” that couldn’t be described in plain language as “willfully reckless”?

  • http://www.elsewhere.org/ Josh

    From the jury instructions:

    To operate a motor vehicle in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences.

    Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances.

    I just wrote my own post about this, so I’ve been doing a bunch of reading through the statutes and jury instructions. I think it’s likely that Erica is using the plain meaning of “willful recklessness”, not the refined legal definition.

    Seriously, can you think of any behavior more negligent than the legal definition of “ordinary negligence” that couldn’t be described in plain language as “willfully reckless”?

  • Chris Stefan

    @2 & @8
    True, one issue we have with accidents where a motorist hits a cyclist or a pedestrian is the attitude of the investigating officers and of the prosecutors.

    On the other hand I think killing someone while driving because the driver was digging for something in the glove box should be punished at least as severely as if they had killed someone by throwing something off their roof to the sidewalk below without checking to make sure it was clear.

  • Chris Stefan

    @2 & @8
    True, one issue we have with accidents where a motorist hits a cyclist or a pedestrian is the attitude of the investigating officers and of the prosecutors.

    On the other hand I think killing someone while driving because the driver was digging for something in the glove box should be punished at least as severely as if they had killed someone by throwing something off their roof to the sidewalk below without checking to make sure it was clear.

  • http://loftninjas.org/ Bryan McLellan

    @2, but what exactly constitutes “[w]ith disregard for the safety of others.” within the courts opinin? RCW 5.40.050 states “A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se…”

    I cannot find any case history to indicate that failing to yield to a cyclist and causing their death meets the requirements necessary for a charge.

    In the appeal of State of Washington v. Nina L. Lopez, the court stated “It is not enough to show that an unlicensed minor without formal driver’s education is likely to endanger persons or property by driving. Some evidence of the defendant’s conscious disregard of that danger is necessary to support vehicular homicide.”

    In the appeal of State of Washington v. David W. Thompson the court stated “Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Operation in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances, or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of Vehicular Homicide.”

    This is why there is a push for a vulnerable road users law. As ECB commented, there’s a very high bar to meet these requirements and consequently this law does not protect those seriously or fatally injured in a case where a driver of a vehicle failed to act prudently and in course with traffic law.

  • http://loftninjas.org Bryan McLellan

    @2, but what exactly constitutes “[w]ith disregard for the safety of others.” within the courts opinin? RCW 5.40.050 states “A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se…”

    I cannot find any case history to indicate that failing to yield to a cyclist and causing their death meets the requirements necessary for a charge.

    In the appeal of State of Washington v. Nina L. Lopez, the court stated “It is not enough to show that an unlicensed minor without formal driver’s education is likely to endanger persons or property by driving. Some evidence of the defendant’s conscious disregard of that danger is necessary to support vehicular homicide.”

    In the appeal of State of Washington v. David W. Thompson the court stated “Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Operation in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances, or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of Vehicular Homicide.”

    This is why there is a push for a vulnerable road users law. As ECB commented, there’s a very high bar to meet these requirements and consequently this law does not protect those seriously or fatally injured in a case where a driver of a vehicle failed to act prudently and in course with traffic law.

  • http://www.elsewhere.org/ Josh

    That said, the Oregon statute is better, provided it wouldn’t conflict with RCW 46.08.020.

  • http://www.elsewhere.org/ Josh

    That said, the Oregon statute is better, provided it wouldn’t conflict with RCW 46.08.020.

  • misha

    What concerns me most about Holmes is his promise to remove domestic violence victim advocates from the city and to issue fewer “no contact” orders for victims. Holmes seems like a full-blown MRA. The media has largely been ignoring this. Please dig into this next week, Erica – if any Seattle journalist will, it’s you.

  • misha

    What concerns me most about Holmes is his promise to remove domestic violence victim advocates from the city and to issue fewer “no contact” orders for victims. Holmes seems like a full-blown MRA. The media has largely been ignoring this. Please dig into this next week, Erica – if any Seattle journalist will, it’s you.

  • http://www.elsewhere.org/ Josh

    I think the Oregon statute would run afoul of RCW 46.08.020.

    RCW 46.61.525 defines negligent driving in the second degree to mean ordinary negligence. Under 46.08.020, could the SMC increase the penalty for that? Or is the idea that adopting something like Oregon’s statute would modify 46.61.525?

  • abc

    The biggest issue is that Carr grandstands instead of finding changes that will actually help. Changing the standard of disregard for the safety of others might be an easier and more meaningful change.

    I’d like to see stiffer penalties for dangerous driving whether someone is hurt or not.

    And Josh – if there was a conflict with the RCW that is one that could be changed.

  • http://www.elsewhere.org/ Josh

    I think the Oregon statute would run afoul of RCW 46.08.020.

    RCW 46.61.525 defines negligent driving in the second degree to mean ordinary negligence. Under 46.08.020, could the SMC increase the penalty for that? Or is the idea that adopting something like Oregon’s statute would modify 46.61.525?

  • abc

    The biggest issue is that Carr grandstands instead of finding changes that will actually help. Changing the standard of disregard for the safety of others might be an easier and more meaningful change.

    I’d like to see stiffer penalties for dangerous driving whether someone is hurt or not.

    And Josh – if there was a conflict with the RCW that is one that could be changed.

  • Michael M.

    @15

    this has already been fleshed out here on Publicola.

    Pete’s opinion is that the Victim Advocates should be advocates for victims, and not for prosecution. They shouldn’t be with the defenders, they shouldn’t be with the prosecutors, they should be with the victim.

  • Michael M.

    @15

    this has already been fleshed out here on Publicola.

    Pete’s opinion is that the Victim Advocates should be advocates for victims, and not for prosecution. They shouldn’t be with the defenders, they shouldn’t be with the prosecutors, they should be with the victim.

  • abc

    That’s right Misha – professional victims’ advocates can only function if they are in the prosecutors office, because if they aren’t, they lose all their experience and training. I guess you don’t think very highly of victims’ advocates.

  • abc

    That’s right Misha – professional victims’ advocates can only function if they are in the prosecutors office, because if they aren’t, they lose all their experience and training. I guess you don’t think very highly of victims’ advocates.

  • http://gomezticator.livejournal.com/1522367.html Gomez

    The Carr/Holmes race is a difficult one for me to decide on since, as you mentioned ECB, Carr’s got a solid record on many issues… and yet spearheaded that ill-advised and misguided nightlife crackdown.

    This is going to be a race I’ll need to think a long while about.

  • http://gomezticator.livejournal.com/1522367.html Gomez

    The Carr/Holmes race is a difficult one for me to decide on since, as you mentioned ECB, Carr’s got a solid record on many issues… and yet spearheaded that ill-advised and misguided nightlife crackdown.

    This is going to be a race I’ll need to think a long while about.

  • meanie

    I was able to get charges dropped for “property damage” via Car when an asshole hit me with his mirror running me off the road. The fact that the cops took it and pressed charges is part of the problem. Sobering thought was a severe cock up, I cant believe they still defend it, but homes sounds more and more like some knee jerk asshole with ideals that don’t match reality.

    “Do we want to terrify drivers” by making them fear criminal prosecution, ….”

    What a fucktard, what do you think laws are for? They are supposed to be a fucking deterrent, you twatwaffle. This cockholster used to be a lawyer?

  • meanie

    I was able to get charges dropped for “property damage” via Car when an asshole hit me with his mirror running me off the road. The fact that the cops took it and pressed charges is part of the problem. Sobering thought was a severe cock up, I cant believe they still defend it, but homes sounds more and more like some knee jerk asshole with ideals that don’t match reality.

    “Do we want to terrify drivers” by making them fear criminal prosecution, ….”

    What a fucktard, what do you think laws are for? They are supposed to be a fucking deterrent, you twatwaffle. This cockholster used to be a lawyer?

  • Brian K

    @21 You’re right. What percentage of drivers currently drive over the speed limit, don’t yield at crosswalks and don’t do a careful check for bikes when making a right turn? Clearly they aren’t “terrified” enough.

  • Brian K

    @21 You’re right. What percentage of drivers currently drive over the speed limit, don’t yield at crosswalks and don’t do a careful check for bikes when making a right turn? Clearly they aren’t “terrified” enough.

  • sarah68

    @4: No, Carr didn’t get the rabbi off, and it wasn’t a kid, it was David Della’s assistant who died. There was a trial and the judge let the guy off when he sentenced him. “In January, a jury found Schwartz guilty of assault-injury by vehicle and the prosecutor wanted him to spend time in jail. Schwartz could have been jailed up to a year. But Holifield said no jail time would bring Nakata back. Holifield on Thursday suspended Schwartz’s license for two years and told him he would have to reapply through the Department of License, pay any funeral or medical costs from the accident, and do 500 hours of community service”.

    I can’t stand Carr and won’t vote for him, but you can’t blame him (or any prosecutor or city attorney) for what a judge does.

  • sarah68

    @4: No, Carr didn’t get the rabbi off, and it wasn’t a kid, it was David Della’s assistant who died. There was a trial and the judge let the guy off when he sentenced him. “In January, a jury found Schwartz guilty of assault-injury by vehicle and the prosecutor wanted him to spend time in jail. Schwartz could have been jailed up to a year. But Holifield said no jail time would bring Nakata back. Holifield on Thursday suspended Schwartz’s license for two years and told him he would have to reapply through the Department of License, pay any funeral or medical costs from the accident, and do 500 hours of community service”.

    I can’t stand Carr and won’t vote for him, but you can’t blame him (or any prosecutor or city attorney) for what a judge does.

  • http://www.elsewhere.org/ Josh

    I’d still like to know what happens to Schwartz’s license suspension, given that the statute under which he was convicted has been overturned. Is he eligible to get his license back now, a few months early?

  • http://www.elsewhere.org/ Josh

    I’d still like to know what happens to Schwartz’s license suspension, given that the statute under which he was convicted has been overturned. Is he eligible to get his license back now, a few months early?

  • Clyde

    @24: At this point, Schwartz’s insurance must be so expensive I’d be surprised if he can afford to drive even if he could get his license back.

    @21 and 22: Everyone who has ever driven a car has either been negligent or broken a traffic ordinance at some point. If you think otherwise, you are deluding yourself. Driving is difficult, and people make mistakes. In my view, mistakes below the level of “disregard for the safety of others,” as defined in the negligent homicide statute, should not be criminal, keeping in mind that (1) infractions can be very expensive when you factor in increased insurance costs, and (2) if you are “only” negligent and injure or kill someone, you will likely be subject to substantial civil liability. These are serious consequences that ought to inspire any intelligent driver to be careful, but many drivers aren’t intelligent and won’t be careful no matter what you do. Criminalizing ordinary negligence is not the answer, and it won’t protect anyone.

  • Clyde

    @24: At this point, Schwartz’s insurance must be so expensive I’d be surprised if he can afford to drive even if he could get his license back.

    @21 and 22: Everyone who has ever driven a car has either been negligent or broken a traffic ordinance at some point. If you think otherwise, you are deluding yourself. Driving is difficult, and people make mistakes. In my view, mistakes below the level of “disregard for the safety of others,” as defined in the negligent homicide statute, should not be criminal, keeping in mind that (1) infractions can be very expensive when you factor in increased insurance costs, and (2) if you are “only” negligent and injure or kill someone, you will likely be subject to substantial civil liability. These are serious consequences that ought to inspire any intelligent driver to be careful, but many drivers aren’t intelligent and won’t be careful no matter what you do. Criminalizing ordinary negligence is not the answer, and it won’t protect anyone.

  • abc

    Josh if you’d look at the Muni Court site you’d see that Schwartz was only given an “Inattention to Driving” infraction – the police had written him for speeding but Carr allowed him to plead it over to the Inattention – that ticket doesn’t count against your driving record.

    Carr’s office has allowed hundreds or thousands of tickets to be converted to Inattention pleadings – it’s a scandal – as Casey said “You can look it up.”

  • abc

    Josh if you’d look at the Muni Court site you’d see that Schwartz was only given an “Inattention to Driving” infraction – the police had written him for speeding but Carr allowed him to plead it over to the Inattention – that ticket doesn’t count against your driving record.

    Carr’s office has allowed hundreds or thousands of tickets to be converted to Inattention pleadings – it’s a scandal – as Casey said “You can look it up.”

  • Clyde

    ABC @26: Here’s what the Weekly says about Schwartz’s tickets:

    At trial, prosecutors argued Schwartz was guilty of four infractions—including simple “inattention”—but it’s not known which of those the jury ultimately attributed to him. Prosecutors say Nakata was hit by the left front bumper of Schwartz’s vehicle—which is to say, he was already well into the intersection. It’s uncertain whether he was inside the crosswalk. The rabbi testified that he never saw him.

    So if Carr’s office argued to the jury in the assault case that Schwartz had committed three infractions other than “inattention” (essentially the most minor moving violation in the Seattle code), why didn’t Carr also charge him with those infractions? Whether or not Schwartz was convicted of assault, three moving violations + inattention would go a long way towards making Schwartz uninsurable and possibly even having his license administratively suspended. It’s bizarre that Carr would be willing to plead the four infractions down to an “inattention” under these circumstances.

  • Clyde

    ABC @26: Here’s what the Weekly says about Schwartz’s tickets:

    At trial, prosecutors argued Schwartz was guilty of four infractions—including simple “inattention”—but it’s not known which of those the jury ultimately attributed to him. Prosecutors say Nakata was hit by the left front bumper of Schwartz’s vehicle—which is to say, he was already well into the intersection. It’s uncertain whether he was inside the crosswalk. The rabbi testified that he never saw him.

    So if Carr’s office argued to the jury in the assault case that Schwartz had committed three infractions other than “inattention” (essentially the most minor moving violation in the Seattle code), why didn’t Carr also charge him with those infractions? Whether or not Schwartz was convicted of assault, three moving violations + inattention would go a long way towards making Schwartz uninsurable and possibly even having his license administratively suspended. It’s bizarre that Carr would be willing to plead the four infractions down to an “inattention” under these circumstances.

  • http://www.elsewhere.org/ Josh

    abc @26, are you talking about case #202440119, filed on Jun 12, 2006? What does that have to do with case #501926, the one I’m talking about?

    Thanks for the reminder that the municipal court information is online, though. From that, I can see that it wasn’t automatic–his conviction wasn’t overturned until October 7.

  • http://www.elsewhere.org/ Josh

    abc @26, are you talking about case #202440119, filed on Jun 12, 2006? What does that have to do with case #501926, the one I’m talking about?

    Thanks for the reminder that the municipal court information is online, though. From that, I can see that it wasn’t automatic–his conviction wasn’t overturned until October 7.

  • abc

    The point is that Schwartz had a speeding ticket 5 months before he killed Nakata that was bargained down to a violation that doesn’t even show on his state driving record.

    For someone that cares so much about safe driving why bargain down that ticket and so many others?

    On the muni court site there does not appear to be any traffic violation conviction for Schwartz over the Nakata death.

  • abc

    The point is that Schwartz had a speeding ticket 5 months before he killed Nakata that was bargained down to a violation that doesn’t even show on his state driving record.

    For someone that cares so much about safe driving why bargain down that ticket and so many others?

    On the muni court site there does not appear to be any traffic violation conviction for Schwartz over the Nakata death.

  • Scott

    One other issue people seem to be ignoring is the role of the civil justice system in these cases. If you’re injured in an accident or you’re the family member of someone killed in an accident, you can sue the other driver for damages. I hope and assume Nakata’s family, Black’s family, etc. sued the drivers or negotiated substantial settlements out of court. Just because somethings not a crime doesn’t mean it’s consequence-free; the consequences of a large civil damages claim be very significant — far more than the $5,000 maximum fine for a gross misdemeanor. I realize a civil suit won’t bring a deceased family member back, but a criminal charge won’t do that either.

  • Scott

    One other issue people seem to be ignoring is the role of the civil justice system in these cases. If you’re injured in an accident or you’re the family member of someone killed in an accident, you can sue the other driver for damages. I hope and assume Nakata’s family, Black’s family, etc. sued the drivers or negotiated substantial settlements out of court. Just because somethings not a crime doesn’t mean it’s consequence-free; the consequences of a large civil damages claim be very significant — far more than the $5,000 maximum fine for a gross misdemeanor. I realize a civil suit won’t bring a deceased family member back, but a criminal charge won’t do that either.

  • http://www.elsewhere.org/ Josh

    On the muni court site there does not appear to be any traffic violation conviction for Schwartz over the Nakata death.

    I assume that’s because in order to charge him with assault – injury by vehicle, they had to argue that the criminal act was completely distinct from the traffic infraction. (Even though, as the appeals court later ruled, it isn’t.) Giving him a traffic infraction would have weakened or made impossible their case for the assault charge.

    As for the pleading down thing, is Carr personally responsible for every plea bargain in municipal court? Or is there a page on the court site where I can see that he was responsible for it in the case you’re talkig about? I honestly don’t know, is why I’m asking. (And I still don’t know who I’m voting for in that position, so it’s not like I’m good buddies with Carr, as you’ve said, abc.)

  • http://www.elsewhere.org/ Josh

    On the muni court site there does not appear to be any traffic violation conviction for Schwartz over the Nakata death.

    I assume that’s because in order to charge him with assault – injury by vehicle, they had to argue that the criminal act was completely distinct from the traffic infraction. (Even though, as the appeals court later ruled, it isn’t.) Giving him a traffic infraction would have weakened or made impossible their case for the assault charge.

    As for the pleading down thing, is Carr personally responsible for every plea bargain in municipal court? Or is there a page on the court site where I can see that he was responsible for it in the case you’re talkig about? I honestly don’t know, is why I’m asking. (And I still don’t know who I’m voting for in that position, so it’s not like I’m good buddies with Carr, as you’ve said, abc.)

  • Scott

    Josh @31:

    I don’t see any reason the city couldn’t still have given Schwartz the infractions in addition to the criminal charge. They’re distinct, but they both apply. In order to get the vehicular assault conviction, the city had to prove that Schwartz committed at least one traffic infraction under the Seattle Municipal Code. The criminal charge required a “beyond a reasonable doubt” standard and a jury conviction; the infractions would only require a “preponderance of the evidence” finding by a judge — much easier to get than a criminal conviction. Should have been quite doable to tag Schwartz with several traffic infractions; that would have been a good backup punishment (and make it harder for Schwartz to get his license back) in the event the criminal conviction was overturned, which apparently it has been.

    As for your question whether Carr is “personally responsible for every plea bargain in municipal court,” no, he’s not directly involved in most cases. But I’m sure he was directly involved in the Schwartz case and personally made those charging decisions. This was a high-profile case involving a law Carr had recently convinced the city council to enact, and Carr was personally quoted in the newspaper about the case. So this would have been one of those cases where Carr would have personally made the decision about how to deal with the infractions.

  • Scott

    Josh @31:

    I don’t see any reason the city couldn’t still have given Schwartz the infractions in addition to the criminal charge. They’re distinct, but they both apply. In order to get the vehicular assault conviction, the city had to prove that Schwartz committed at least one traffic infraction under the Seattle Municipal Code. The criminal charge required a “beyond a reasonable doubt” standard and a jury conviction; the infractions would only require a “preponderance of the evidence” finding by a judge — much easier to get than a criminal conviction. Should have been quite doable to tag Schwartz with several traffic infractions; that would have been a good backup punishment (and make it harder for Schwartz to get his license back) in the event the criminal conviction was overturned, which apparently it has been.

    As for your question whether Carr is “personally responsible for every plea bargain in municipal court,” no, he’s not directly involved in most cases. But I’m sure he was directly involved in the Schwartz case and personally made those charging decisions. This was a high-profile case involving a law Carr had recently convinced the city council to enact, and Carr was personally quoted in the newspaper about the case. So this would have been one of those cases where Carr would have personally made the decision about how to deal with the infractions.

  • abc

    Josh – the conviction is automatically overturned when the law used to convict is declared unconstitutional but it isn’t done instantaneously.

    Yes, Carr can tell his law student traffic court prosecutors what to do. He could instruct them not to bargain down an infraction to inattention to driving.

  • abc

    Josh – the conviction is automatically overturned when the law used to convict is declared unconstitutional but it isn’t done instantaneously.

    Yes, Carr can tell his law student traffic court prosecutors what to do. He could instruct them not to bargain down an infraction to inattention to driving.

  • Scott

    Josh: Since this might not be immediately apparent, what ABC means by “law student traffic court prosecutors” is that prosecutors for traffic infractions in Seattle Muni Court are usually third-year law students or summer clerks working part-time for the city and admitted to practice under supervision of a regular attorney. They’re usually called Rule 9s because that’s the rule under which they’re allowed to practice. There’s nothing wrong with using Rule 9s to prosecute traffic tickets; I fault Carr for many things (and most certainly will not vote for him), but using Rule 9s for traffic tickets is perfectly sensible because it would be too expensive to use regular prosecutors for those cases (and the alternative to a Rule 9 is usually no prosecutor, which some other jurisdictions do). That said, ABC’s point is that Carr gets to set policy for these cases, and I’m confident Carr was directly and personally involved in the Schwartz case because it as so high-profile and involved a death. As such, it’s quite fair to blame him for not issuing infractions to Schwartz in addition to charging him with vehicular assault.

  • Scott

    Josh: Since this might not be immediately apparent, what ABC means by “law student traffic court prosecutors” is that prosecutors for traffic infractions in Seattle Muni Court are usually third-year law students or summer clerks working part-time for the city and admitted to practice under supervision of a regular attorney. They’re usually called Rule 9s because that’s the rule under which they’re allowed to practice. There’s nothing wrong with using Rule 9s to prosecute traffic tickets; I fault Carr for many things (and most certainly will not vote for him), but using Rule 9s for traffic tickets is perfectly sensible because it would be too expensive to use regular prosecutors for those cases (and the alternative to a Rule 9 is usually no prosecutor, which some other jurisdictions do). That said, ABC’s point is that Carr gets to set policy for these cases, and I’m confident Carr was directly and personally involved in the Schwartz case because it as so high-profile and involved a death. As such, it’s quite fair to blame him for not issuing infractions to Schwartz in addition to charging him with vehicular assault.

  • http://www.elsewhere.org/ Josh

    Oh, I see my mistake. The court site shows what the final charge was, not the initial one. So, here’s the timeline as I see it:

    6/9/06 – Schwartz is pulled over and cited for doing 48 in a 30 zone.
    6/12/06 – Speeding charge is filed.
    9/21/06 – Schwartz arrives for his court date, but his attorney is in another court, and can’t make it. A new date is set for 11/21/06.
    11/14/06 – Schwartz hits and kills Nakata.
    11/21/06 – Schwartz isn’t in court for the speeding charge (I don’t know what some of the abbreviations mean), but his defense requests a continuance, which is granted. The new court date for the speeding charge is set for 2/14/07.
    2/14/07 – The city enters a motion to amend the charge from speeding to inattention, which is granted. Schwartz, who is present, pleads “committed”, which I guess is the traffic infraction version of “guilty”.
    4/13/07 – Charge of assault (injury by vehicle) brought for the incident of 11/14/06.

    So I guess I’d really like to know what happened in the hearings on 11/21/06 and 2/14/07. He had at that point killed Nakata, but hadn’t yet been charged with anything in that matter, at the time that his earlier speeding charge was amended to inattention.

    Are we saying that Carr was responsible for the bargain on 2/14/07?

  • http://www.elsewhere.org/ Josh

    Oh, I see my mistake. The court site shows what the final charge was, not the initial one. So, here’s the timeline as I see it:

    6/9/06 – Schwartz is pulled over and cited for doing 48 in a 30 zone.
    6/12/06 – Speeding charge is filed.
    9/21/06 – Schwartz arrives for his court date, but his attorney is in another court, and can’t make it. A new date is set for 11/21/06.
    11/14/06 – Schwartz hits and kills Nakata.
    11/21/06 – Schwartz isn’t in court for the speeding charge (I don’t know what some of the abbreviations mean), but his defense requests a continuance, which is granted. The new court date for the speeding charge is set for 2/14/07.
    2/14/07 – The city enters a motion to amend the charge from speeding to inattention, which is granted. Schwartz, who is present, pleads “committed”, which I guess is the traffic infraction version of “guilty”.
    4/13/07 – Charge of assault (injury by vehicle) brought for the incident of 11/14/06.

    So I guess I’d really like to know what happened in the hearings on 11/21/06 and 2/14/07. He had at that point killed Nakata, but hadn’t yet been charged with anything in that matter, at the time that his earlier speeding charge was amended to inattention.

    Are we saying that Carr was responsible for the bargain on 2/14/07?

  • http://www.elsewhere.org/ Josh

    (Hey, aren’t some of the people on this site reporters? Maybe one of them could find out what exactly happened, there.)

    Thanks for the information about Rule 9, Scott; I didn’t know about that.

  • http://www.elsewhere.org/ Josh

    (Hey, aren’t some of the people on this site reporters? Maybe one of them could find out what exactly happened, there.)

    Thanks for the information about Rule 9, Scott; I didn’t know about that.

  • Scott

    Josh @35: Given the publicity surrounding Nakata’s death, I would be surprised if Carr did not personally pay attention to that case as well as to Schwartz’s other pending case (after 11/14/06). If he didn’t, he should have. 48 in a 30 zone is a serious speed violation (as compared to 35 in a 30, which is relatively minor as these things go). I’m surprised 18 over the speed limit would get amended to an “inattention” (unless there was a big evidentiary problem with the case), especially given Schwartz’s prior record.

  • Scott

    Josh @35: Given the publicity surrounding Nakata’s death, I would be surprised if Carr did not personally pay attention to that case as well as to Schwartz’s other pending case (after 11/14/06). If he didn’t, he should have. 48 in a 30 zone is a serious speed violation (as compared to 35 in a 30, which is relatively minor as these things go). I’m surprised 18 over the speed limit would get amended to an “inattention” (unless there was a big evidentiary problem with the case), especially given Schwartz’s prior record.

  • http://www.elsewhere.org/ Josh

    That surprises me, too. Hrm. Good thing I haven’t filled out my ballot yet. I’ve definitely got more to think about now.

  • http://www.elsewhere.org/ Josh

    That surprises me, too. Hrm. Good thing I haven’t filled out my ballot yet. I’ve definitely got more to think about now.

  • abc

    Scott my point was and is that Carr grandstands about traffic safety but uses the least experienced people possible to prosecute traffic violations. Traffic defense attorneys eat them up and therefore they make the inattention deals – everybody wins – the court gets its money, the defense lawyer gets his fee and the driver walks without a ticket on his state record, which is the one insurance companies look at.

    Now I think someone that says safety is number one shouldn’t deal down tickets – btw this works primarily for the well off that can pay $300 for an attorney – and proposing unconstitutional laws and ones that will never be passed by the state is nothing but grandstanding.

  • abc

    Scott my point was and is that Carr grandstands about traffic safety but uses the least experienced people possible to prosecute traffic violations. Traffic defense attorneys eat them up and therefore they make the inattention deals – everybody wins – the court gets its money, the defense lawyer gets his fee and the driver walks without a ticket on his state record, which is the one insurance companies look at.

    Now I think someone that says safety is number one shouldn’t deal down tickets – btw this works primarily for the well off that can pay $300 for an attorney – and proposing unconstitutional laws and ones that will never be passed by the state is nothing but grandstanding.

  • sarah68

    If tickets aren’t pled down, court resources are going to be clogged up even more than they are now with difficult trials. Pleading down isn’t a good practice but unless we want to spend way way more on our court systems, it will go on, in everything from traffic cases to child molestation to murder. And $300 will not buy you an attorney — more like $3,000.

  • sarah68

    If tickets aren’t pled down, court resources are going to be clogged up even more than they are now with difficult trials. Pleading down isn’t a good practice but unless we want to spend way way more on our court systems, it will go on, in everything from traffic cases to child molestation to murder. And $300 will not buy you an attorney — more like $3,000.

  • Scott

    Sarah68 @40: No disagreement about the benefits of pleading down, but it applies less in traffic infraction cases where there’s a much lower standard of proof, no public defender, and no jury trial. Even then, it’s downright bizarre that Carr agreed to plead down Schwartz’s speeding ticket to an inattention when (1) this happened after Schwartz had hit and killed Nakata, (2) Schwartz had a long and terrible driving record, and (3) Schwartz was going 18 MPH over the speed limit. Given Carr’s grandstanding about that case, I simply do not understand why his office would have cut Schwartz that deal at that time under those circumstances.

    BTW, $300-400 is the going rate for a good traffic infraction attorney. Attorneys for criminal matters are a lot more expensive.

  • Scott

    Sarah68 @40: No disagreement about the benefits of pleading down, but it applies less in traffic infraction cases where there’s a much lower standard of proof, no public defender, and no jury trial. Even then, it’s downright bizarre that Carr agreed to plead down Schwartz’s speeding ticket to an inattention when (1) this happened after Schwartz had hit and killed Nakata, (2) Schwartz had a long and terrible driving record, and (3) Schwartz was going 18 MPH over the speed limit. Given Carr’s grandstanding about that case, I simply do not understand why his office would have cut Schwartz that deal at that time under those circumstances.

    BTW, $300-400 is the going rate for a good traffic infraction attorney. Attorneys for criminal matters are a lot more expensive.

  • abc

    Sarah 68 and Josh, I’m guessing you’ve never sat in on traffic court – it’s mostly waiting between cases and the prosecutor is there just sitting – the judge hangs out in the court and back in his chambers – really go check it out – they plead the cases down so that the court gets the money, the lawyer get his money and the violator skates without anything on the record – it actually cheaper for the violator just to go to the magistrate and get the fine reduced but that puts the violation on their record – figure it out, these are drivers that have bad records that pay $300 to get this “special” violation.
    If tickets aren’t pled down, court resources are going to be clogged up even more than they are now with difficult trials. Pleading down isn’t a good practice but unless we want to spend way way more on our court systems, it will go on, in everything from traffic cases to child molestation to murder. And $300 will not buy you an attorney — more like $3,000.

  • abc

    Sarah 68 and Josh, I’m guessing you’ve never sat in on traffic court – it’s mostly waiting between cases and the prosecutor is there just sitting – the judge hangs out in the court and back in his chambers – really go check it out – they plead the cases down so that the court gets the money, the lawyer get his money and the violator skates without anything on the record – it actually cheaper for the violator just to go to the magistrate and get the fine reduced but that puts the violation on their record – figure it out, these are drivers that have bad records that pay $300 to get this “special” violation.

    If tickets aren’t pled down, court resources are going to be clogged up even more than they are now with difficult trials. Pleading down isn’t a good practice but unless we want to spend way way more on our court systems, it will go on, in everything from traffic cases to child molestation to murder. And $300 will not buy you an attorney — more like $3,000.

  • M

    Actually Holmes' plan is more reasonable and cost-friendly. Jail time will cost the public more than it's worth. There's already jail over-crowding and they suck up too much of our dollars (what's left after Tim Eyman slashes and burns or what cronies misplace on the waterfront tunnel).

    The Holmes/Oregon way sounds like the better one here.