April 13, 2020

Choice Of Evils Defense | Cup of Joe


You like horses? This week we head to Monticello in Sullivan County, home of the Monticello Raceway. It is located in the Catskill Region about 85 miles NW of Manhattan, and 165 miles SW of Syracuse. Two Court of Appeals Chief Judges were born in Monticello: Lawrence Cooke (my little brother was his body guard for a few years); and Judith Kaye (NY’s first female Chief Judge -- I argued an appeal before her up in Albany and she pronounced my name correctly!).

Horses. In 2006, the Raceway was the site of the so-called "Monticello Miracle." But first we have to go back to December 8, 1941, the day after Pearl Harbor. Don Karkos, 5 days shy of 17 years old, signed up with the Navy. Don was assigned to  the USS Rapaden. In the summer of ’42, Don was on the Rapaden deck when there was a loud explosion and searing metal flew everywhere. Something heavy hit young Don above his right eye knocking him out. When he woke up, he was in a military hospital in Iceland. Doctors told him he would never see out of his right eye again. 

Shoot forward to 2006. Don was preparing a horse named My Buddy Chimo for an early morning workout in a paddock. Don was adjusting the gear around the horse’s chest when My Buddy Chimo lowered his head quickly, came up and butted Don, hitting him flush in the head, straight above his right eye, his blind eye. When Don got home that night, still a little woozy, he realized that his site had been restored.

What the evils of war had cruelly taken away, My Buddy Chimo, the horse, had given back. 

The case we are studying this week has a cruel beginning  -- there are not many things as tragic as the death of a soon-to-be bride in August.

A bachelorette party gone horribly awry, where a drunken best man behind the wheel of a car claimed the life of a 25-year-old mother of a four-year-old daughter, almost killed the driver’s friend and groom-to-be, and seriously injured several other passengers.


Kenneth Newman -- the 24-year-old driver of a car that killed his best friend’s fiancee 

Billy Conklin Jr. – Ken’s best friend, the groom-to-be


Q. What was your relationship to Ken Newman?
A. He is my best friend and he always will be.
Q. And, for the record, can you identify Ken?
A. He is sitting right there in between the two lawyers.
Q. The incident took place on August 18 going into the 19th ?
A. Yes. It was at Kilcoin’s Tavern, over in Swan Lake. We were all celebrating Kenny’s and Tabitha Joslin’s wedding day that was going to take place in a few days. I was the Best Man. 
Q. Were you drinking?
A. Yes. All of us were. Cocaine, and weed, too.
Q. What time did you all leave Kilcoin’s.
A. A little after 3:00 a.m.
Q. Why did you leave?
A. A fight had broken out. The whole place just went crazy.  When we got into Kenny’s car, someone threw a bottle against the driver’s side window. 
Q. What happened next?
A. Kenny took off down the road, Route 55. He only got about 1,300 feet, maybe, and we crashed into a utility pole. We were all banged up pretty bad…but Tabitha was dead. You could see…

Q. How fast was Kenny driving?
A. He was moving at a clip because someone was following us in a car from the bar. We were just trying to get out of there. Tabitha was inside the car. . . . They were surrounding us, fighting us . . . yelling, screaming, throwing punches . . . yelling, ‘I’m going to kill you, f--- you up’ . . . and somebody punched me square in the face.
Q. What was Kenny doing at that time?
A. Kenny was holding onto the wheel, panicking, scared for his life. We were yelling at him to go. . . . He was basically pleading for his life, to leave us alone.
Q. What happened to you as a result of the crash?
A. Multiple skull fractures, numerous facial lacerations and fractured bones. It was unreal.
Q. Is your reality of the bar incident affected by drugs and alcohol?
A.  My reality was screwed up by people beating the crap of me.
Q. You seem to have a lot more memories of what happened that night now than you did when you spoke to the police a while back?
A. I have short- and long-term memory loss. . . . It sporadically comes back to me.
Q. Right.


Witness #1 -- College Student (female)

Q. Did you see anyone throw anything, any bottles, at Kenny’s car that night?
A. No.  I was in the parking lot. Nobody threw a bottle that night.
Q. You have anything to drink that night?
A. Just 2 light beers 
Q. And you were there for how long?
A. Over 6 hours.
Q. Two beers.
A. Mmm Hmm.

Witness #2 -- an inmate at the local jail (arrested and jailed in an unrelated incident after the accident) 

Q. Did you see anyone throw anything, any bottles, at Kenny’s car that night?
A. No. I saw a fight in the parking lot, no one threw anything at Newman’s vehicle.
Q. You get a deal on your other arrest to testify today?
A. A little. Yeah.


Your Honor, I request that the Court instruct the jury on a “choice of evils” defense. The jury should decide whether there was a necessity for Kenny to speed away.


I agree with you, counsel. The jury might decide that Kenny’s actions were justified, and the failure to charge the defense constitutes reversible error. You can mention the choice-of-evils defense to the jury in your closing. I will instruct them on that.


Members of the Jury, you have to carefully consider the main issues of the case: whether Newman and his friends were justified in fleeing an angry, bottle-throwing mob outside Kilcoin’s. You heard testimony from people in Kenny’s car. They were right there. They experienced the terror caused by the attacking mob. They just wanted to get out of there. Kenny was just trying to get his friends to safety. He had to choose between the lesser of two evils: drive away even though he knew he was drunk or stay and let his friends be attacked. Do what is right: I ask that you find Kenny NOT GUILTY.


It is true, Members of the Jury, that you heard testimony of people in Kenny’s car that night. But not from Tabitha.  She’s gone.

It’s such a unique case in that all the victims were against us. But laws aren’t there only to protect those four people in the car. The law is there to protect everybody and to discourage the kind of conduct Kenny committed that night. There needs to be consequences for that kind of action or every one of us is imperiled. Kenny acted in a reckless manner while his ability to operate a motor vehicle was impaired by alcohol and controlled drugs, including marijuana and cocaine.

I ask that you find Kenny GUILTY.


I now charge you, that based upon the facts presented, you may consider the defense of justification by necessity, otherwise known as the 'choice of evils' defense. Even if Kenny is guilty, if you should determine that he acted with justification out of necessity, then he must nevertheless be found not guilty.


After a total of 12 hours, they found Kenny GUILTY as charged on all counts, including vehicular manslaughter in the second degree, vehicular assault in the second degree (both felonies), driving while intoxicated, driving while ability impaired by alcohol/drugs, misdemeanor assault and numerous violations of state traffic laws.

Kenny was sentenced to 2 to 7 years in state prison, verdict and sentence upheld on appeal.

The jury could have believed that Kenny chose the lesser of two evils by getting into his car that fateful night, just 4 days before his wedding, but they did not. Would it have been justice if Kenny got a pass for the death of his fiance, Tabitha? 

Kenny did not testify at his trial. That was his right. Would it have made a difference if Kenny explained to the jury what was going through his mind?  

Things to think about, until we see you next week.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2004/2004_24052.htm

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