Friday, 28 July 2017

Watching a crime and doing nothing

On October 24th, 2009, as many as 20 witnesses watched as a 15- year-old-girl was brutally assaulted and raped outside a homecoming dance in Richmond, California. The viciousness of the attack was shocking, but what was even more shocking was the fact that so many people witnessed the attack and yet failed to intervene or even call the police. As one of the police officers involved in the case later stated, “What makes it even more disturbing is the presence of others. People came by, saw what was happening and failed to report it.” Some of the bystanders reportedly even laughed and took photos of the assault with their cell phones.

In March 1964, for more than half an hour, beginning at 3:20 am, 38 so-called respectable, lawabiding cit­izens in Queens, New York  watched a killer stalk and stab a woman in three separate attacks in the district of Kew Gardens. She got as far as a street light in front of a bookstore before the man grabbed her. She screamed. Lights went on in the 10story apartment house at 8267. Austin Street, which faced a bookstore. Windows slid open and voices punctured the earlymorning stillness. Miss Kitty Genovese screamed, “Oh, my God, he stabbed me! Please help me! Please help me !”

From one of the upper win­dows in the apartment house, a man called down “Let that girl alone !” The assailant looked up at him, shrugged and walked down Austin Street toward a white sedan parked a short distance away. Miss Genovese struggled to her feet. Then the lights went out. The killer returned to Miss Genovese, now trying to make her way around the side of the building by the parking lot to get to her apart­ment. The assailant stabbed her again. “I'm dying!” she shrieked. “I'm dying!” She shrieked. “I'm dying!”

Twice the sound of their voices and the sudden glow of their bedroom Iights interrupted him and frightened him off. Each time he returned, he sought her out and while she was dying on the steps to her home, he stabbed her again and again. Not one person watching from their apartment building windows telephoned the po­lice during the assault. Eventually one wit­ness called the police after the woman was already dead.

If I was driving on that street and saw that man stabbing, her I would have stopped my car, got my tire iron from the trunk and smashed it into his skull. I could never forgive myself if I merely looked on and then drove away.

The question of whether the witnesses could be held legally responsible in any way for fail­ure to report the crime was put to the Police Department's legal bureau. There, a spokesman said “There is no legal responsibility with few exceptions, for any citizen to report a crime that they witness being done in front of them.”

The police said most of the witnesses had told them they had been afraid to call, but had given meaningless answers when asked what they had feared. “We can understand the reti­cence of people to become in­volved in an area of violence,” Lieutenant Jacobs said, “but where they are in their homes, near phones, why should they be afraid to call the police?”

The police were able to piece together what happened. The residents furnished all the information needed when detec­tives rang doorbells during the days following the slaying.

Six days later, the police ar­rested Winston Moseley, a 29­ year-old business-machine op­erator and charged him with the homicide. Moseley had no previous record. However when questioned by the po­lice, Moseley also said that he had slain Mrs. Annie May John­son, age 24, on February 29th of that same year. He was sent to prison for life He died on March 28th, 2016 in the Clinton Correctional Facility, a maximum security prison in Dannemora, in the State of New York  at age 81 after being imprisoned 52 years. 

I was about the same age as of that killer when he died in prison. When I think about his 52 years in prison, I think back to 1965. That was the year that if I was sent to prison for those crimes, my imprisonment would have begun in that year A great deal has happened in my life since then that I wouldn’t have ever experienced.

Now I will tell you about a really interesting case in which a man was stabbing a woman in Toronto very recently and was seen doing it by a man who did something to stop the continuation of the crime, thereby saving the woman’s life.

In the early hours of June 7th, 2017, Anthony James Kiss, age 31, was driving his car on a street in Toronto and while he was sitting in his car at a red light near Black Creek Dr. and Eglinton Ave. with his girlfriend, he saw a man standing at a nearby bus stop next to a woman. He later said, “She was off to the side minding her own business with her arms crossed, just waiting for the bus.”  

His girlfriend, Michelle Adams who was sitting next to him in his car later said, “I heard Anthony (Kiss) screaming like, ‘Oh my God he’s stabbing her, he’s going to kill her,’ ” Adams later said. “I looked over again and I realized that he (the man with the knife) was making stabbing motions towards her.”

Anthony Kiss later said , “I looked back at the red light, it was still red  and by then the male had pulled a knife and went for the woman like three or four times, stabbing her.” 

What he did next was unusual in a remarkable way to say the least. He purposely drove his car directly at the criminal who was stabbing the woman in order to save her life. By doing this, he actually did save her life. On the other hand, the criminal, Humberto Dario Romero age 37 was pronounced dead at the scene.  The woman was taken to a hospital for minor injuries that were not related to the collision by Kiss’ car.

Kiss immediately fled the scene. That was a stupid thing to do. He didn’t do it because he killed the knife-carrying criminal. He did it because he had been driving after he had been drinking.

Soon after, he was apprehended by the police. He was charged with impaired operation of a motor vehicle causing death, over 80 mgs operation of a motor vehicle causing death and failure to stop at a scene of an accident causing death. In my opinion, he will be convicted of those two offences.

He was also charged with manslaughter for killing the criminal. In my opinion, the third charge is questionable.  

If you are being attacked by someone who is attempting to murder you, then the law is quite clear. You can take any steps you wish to prevent being murdered and that includes killing the person trying to murder you. I will give you an extreme example of that actually happening in an event in the past.

Many years ago, there was a man who told two other men that he intended to kill them the next time he saw them. Several days later, they waited near a path that he frequented to ambush him and when he was almost upon them, they beat unsuspecting man to death. They were charged with murder. Their jury acquitted him of the murder since they concluded that what they did was in self defence.  However, a judge may have ruled otherwise.

This case I am writing about is about a man charged with manslaughter after a hit-and-run incidence The case hinges on the reasonableness of this kind of thinking. Kiss’s defence lawyer could argue that his client’s actions were necessary in order to prevent another crime and in this case the injury or death of the woman Romero had attacked with a knife from continuing. That kind of defence is necessary because Kiss has already said he intentionally hit Romero with his car. “He told the Toronto Star, “I had to make a quick decision to use my vehicle to stop him. I didn’t want death, that’s why I was trying to do this, do what I did, to prevent death.” unquote

There is no evidence that Kiss intended to kill the criminal. Intention or no intention, manslaughter conviction can arise when somebody commits a crime that leads to the person’s death even though there was no intention to kill the person.

The defence will have to demonstrate that Kiss’ action was justified in order to protect the woman, since he does not dispute that the response he undertook was intentional.

If the matter is heard by a jury, those on the jury will be told by Kiss’ lawyer that it’s important to consider that, if Kiss’ version is accurate, without his intervention, the woman he saved may have died or have been seriously injured. But that doesn’t necessarily mean that Kiss will be acquitted of the manslaughter charge.

The judge or jury will have to consider whether there were less dangerous and more legal means that Kiss could have pursued to prevent Romero from stabbing the woman, whether Kiss considered honking or yelling at Romero, or approaching him with his car without making impact, would be aspects that a judge or jury would take into consideration.

Quite frankly, I seriously doubt honking his horn would have effectively stopped the criminal from stabbing his victim.

The case is further complicated by Kiss’s blood alcohol level.  He blew above the legal limit however that doesn’t necessarily mean he was in a state of impairment. The Crown (prosecutor) could argue that had Kiss been sober, he may not have purposely driven his car into the criminal

The Defence on the other hand could argue that had Kriss been sober, he may not have driven his car into the criminal and subsequently, the woman would have been killed.  The defence will have to show that Kiss’s judgment that early morning was sound, and that a reasonable, sober person would have made the same call.

You will note that I have referred to Humberto Dario Romero as a criminal. Anyone who stabs a stranger on the street is a criminal. The mother of his child and a friend think otherwise. The girlfriend of the dead man confronted Kiss in the hallway prior to his court appearance with Romero’s girlfriend Cecilia Tofalo telling Kiss that her common-law husband had a 12-year-old son. “You left him without a father!” she screamed. “You killed an innocent person!” screamed a friend of Romero’s.

How does this twerp presume that a man who stabs an innocent woman is innocent of any crime? If a duck quacks like a duck, it must be a duck. The dead man acted as a criminal so he obviously at that moment was a criminal.

Many years ago in the United States, a man murdered a man in a car repair shop and began to flee on his bicycle. Another man in the shop saw what had happened so he chased after the murder with his car. He caught up to him and aimed for the murderer to stop him. His car struck the murder’s bicycle and propelled the murderer into a lamp post. The murderer died at the scene. The motorist said he didn’t intend to kill the murderer, he just wanted to prevent him from escaping. The police decided not to charge the motorist with any crime.

It seems to me that when a particular purpose is an element of an offence, the element is established however such purpose can be conditional if the condition negatives the harm, or evil sought to be prevented.  

If a police officer fires his gun against a man who is a danger to him or someone else, and the man his killed, the police aren’t charged with any crime because they were trying to prevent the man from killing other people. If Kiss was a police officer and he saw a woman about to be stabbed to death, would he be charged with manslaughter for killing the man by shooting him to save the life of the victim? Not likely.

It may be said that the question as to whether necessity is a strict legal defence is mere theoretical but if it is not, it certainly can bring about a reduction of the sentence. In this particular case, the court can give Kiss an absolute discharge or a conditional discharge.

However, when a man acts meritoriously as Kiss did, even a technical conviction would in my respectful opinion, inappropriate especially if the deed was done to save another person’s life.

Of course, a discharge is not applicable in a case of murder but Kiss wasn’t charged with murder—he was charged with manslaughter.

British Justice S. Pollard said it best in which he stated;

“In every law, there are some things which when they happen, a man may break the words of the law and yet not break the law itself. Such things are exempted from the penalty of the law. Although they are done against the letter of the law, breaking the words of the law is not breaking the law. In Canada, this is ther law of Manslaughter.

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
 (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Kiss certainly had a legal right to prevent the criminal from stabbing the victim to death.

Kiss was released on bail and he is to return to court in September to set a date for trial. His trial will be an interesting one and when it is completed, I will update you on the result.

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