Sunday, September 27, 2015

...Justice For All?

There is a defendant I know who engaged in illegal conduct - felony conduct - that caused the death of a young man in Van Zandt County, Texas. He was not the only victim, even from the incident that took his life. There were many more.

You all know this defendant. It is that very iconic American corporation, General Motors (GM).

According to a The New York Times story dated September 17, 2015:
As the number of deaths linked to defective cars made by General Motors has steadily risen to 124, victims’ families have waited for the answer to a burning question: How will federal prosecutors hold the automaker accountable for its decade-long failure to disclose the defect?
The defect the NYT wrote of was in the ignition switch. The switch would shut off certain makes of GM designed and manufactured cars (less expensive makes, of course) disabling the airbags. This all could, and did, occur under normal road conditions. GM knew of the problem for 10 years, but did nothing. It took the work of a private lawyer to finally force regulators to require GM to institute the recall, and admit both the defect, and their knowledge of it that resulted in the criminal investigation.

The answer to the families, according to the same NYT story, came last week:
In a settlement with prosecutors, no individual employees were charged, and the Justice Department agreed to defer prosecution of the company for three years. If G.M. adheres to the agreement, which includes independent monitoring of its safety practices, the company can have its record wiped clean.
GM gets the equivalent of what is not available for misdemeanor possession of less than 2 ounces of marijuana in Brazos County, Texas: 3 years deferred prosecution. That would be for causing 124 deaths in 10 years for a defect it knew about and chose not to correct.

GM's punishment does not take into account the collateral damage they caused. In this case, the damage takes the form of a woman wrongful convicted for criminal negligent homicide. From another NYT story from November, 2014 involving a death in Van Zandt County, Texas:
The judge cleared [Candice] Anderson in the death of the boyfriend, Gene Mikale Erickson, even though she had pleaded guilty to criminally negligent homicide in the case years ago. 
Ms. Anderson, 21 at the time of the crash, was driving her car when she inexplicably lost control and crashed into a tree. Mr. Erickson, her passenger, died at the scene, and Ms. Anderson has been racked with guilt ever since.
In getting her record cleared, Ms. Anderson benefited from an extraordinary — and long delayed — admission by General Motors, which on Monday for the first time publicly linked Mr. Erickson’s death to an ignition switch defect in millions of its small cars.
I use term "collateral damage" loosely, because GM did not cop to causing it.
James R. Cain, a spokesman for G.M., said in a statement: 'We have taken a neutral position on Ms. Anderson’s case. It is appropriate for the court to determine the legal status of Ms. Anderson.' 
The Van Zandt County District Attorney supported the move, well, because her oath required it:
The district attorney who prosecuted Ms. Anderson, Leslie Poynter Dixon, and the police trooper who investigated the accident had both said that if the ignition-switch defect had been publicly known at the time of the crash, certain details of the accident — like the lack of skid marks or evasive action — would have been seen differently.
Tell me, are the elements of the Texas criminal negligent homicide penal statue (here and here) not present regarding GM's responsibility in causing Mr. Erickson's death? GM knew of the ignition defect. They affirmatively concealed it. The design and concealment caused Mr. Erickson's death, all while GM stood by as another was convicted of the very same crime. Am I missing something?

There is more. Pharmaceutical giant Johnson & Johnson (J&J) pleaded guilty to disfiguring boys by it's overaggressive selling of the drug Risperdal. As reported by the NYT last week:
 J&J got caught, pleaded guilty to a crime and has paid more than $2 billion in penalties and settlements. But that pales next to some $30 billion in sales of Risperdal around the world.
Finally, not to be outdone by corporate rival GM, Volkswagen this week copped to extensive fraud in dodging emission tests after years of denials.

Our civil tort system traditionally has been the forum for corporate responsibility and change. This is really no longer the case for reason not germane to this post.

Due process of law does not promise the same result for all defendants. It does, however, promise evenhandedness. I have written recently about how African American men opt out of a system that does not by any standard look, or view the world as they do. The system that so ardently prosecutes these men of color must prosecute corporate decision makers at the same level of intensity as it prosecutes these African American men. If not, it  must treat these men of color similarly to the decision makers behind that green curtain of corporate anonymity. Unless we as a community do this, the promise of due process of law is a fiction that deserves not only condemnation but constitutional insurrection.

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