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To Plea or Not To Plea

Douglas Scott Hirscher, the man involved in the deadly four-car accident on Highway 128 near Yorkville on December 1, 2002, has pled no contest to vehicular manslaughter and leaving the scene of an accident where there has been a death, resolving the case short of a trial. Sentencing is set for Friday, October 10 at 1:30pm. 

The plea agreement consisted of maximum prison time of eight years and four months (mid-range being approximately six years), self-surrender on January 1, 2004, a $10,000 fine and up to $10,000 retribution with a resulting one-year loss of driver’s license.

The morning of August 6th started out in Ukiah Superior Court as a preliminary hearing with police and defense witnesses prepared to testify. Prior to the prelim, attorneys Tony Serra and Omar Figueroa informed Hirscher of the startling news. The Mendocino County DA’s office intended to add murder charges with a sentence of up to 40 years if convicted at trial if Hirscher didn’t plead to two counts of manslaughter (one for each of the two deaths), and one count of leaving the scene of an accident. Murder charges would have changed the nature of the case from involuntary and accidental (an accident) to intentional, and from negligence to recklessness, undercutting Hirscher’s defense of innocence, and greatly reducing chances of winning at trial. 

The prospect of fighting overcharges of murder effectively coerced Hirscher’s no-contest plea to the lesser charge of vehicular manslaughter, according to the prosecution plan. District Attorneys routinely overcharge to have something to throw away as they bargain people’s lives and liberty away. Scaring people into foregoing their right to public trial works! Whereas about 90% of defendants used to go to trial and 10% pled out, the reverse is now true — at least 90% of defendants take a plea to avoid substantially longer sentences and 10% dare to risk conviction at trial. 

I am reminded of the history-making case where the judge, offering a light sentence, asked the defendant if he’d had any promises or threats to get his plea and the prisoner blurted out, “They were going to gas me!” That plea was overturned as coerced.

The courts generally call comparable disparities (like life vs. time served) non-coerced, to keep plea justice intact and avoid major systemic reform, since coerced pleas are unconstitutional. I believe England has instituted a reform reducing most trials to one day, which would greatly reduce America’s burden of long, costly, drawn-out trials and give defendants their day in court, even if it’s a shorter day. Win-win!

But such a reform will not be possible until the “war on drugs” — starting with marijuana prohibition — is called off. America’s worthless, winless drug war is responsible for the majority of all arrests and convictions and the highest percentage of incarcerated people of any country in the world. “Drug-related” cases are calculated at upwards of 70%. Marijuana cases comprise the majority, most for possession/personal use, totalling over 700,000 a year or 2,000 a day. To accomplish this mammoth drain of human and economic resources requires huge numbers of coerced pleas. And they’ll call it a bargain! But fast justice, like fast food, has sly dangers. By inducing fear of long prison time and forfeiture of trial rights we achieve “bargain” basement justice, closed door deals, lack of public oversight, constitutional corruption and ultimately less justice, or justicelessness. Can’t we do better?

Scott Hirscher’s case was no exception. Threatening to charge him with murder prevented a trial but did not serve justice. The defendant’s right to a public trial and the public’s right to know suffer. Considering Hirscher’s public expression of remorse, willingness to take responsibility and courageous life-saving efforts immediately following the accident — before he left to get help, went into shock and didn’t return — there is nothing persuasive to justify concluding that this accident was murder. A murderer would likely not have stayed to try to save the lives of those involved in the accident (pulling a woman in the second burning car out of the passenger seat to safety) or cried at his plea hearing or written a public letter of remorse (see below.)

The public was deprived of the lessons to be learned through the unfolding of both sides of the story. What responsibility did the other drivers share? To what degree could accidents be prevented by turn-out signs clearly marking the number of feet to the end? Hirscher had previously described his perspective (AVA, January 8, 2003) by explaining that the car traveling in front of him pulled over at a turn-out as though to let him pass, but appeared to run out of turn-out space and pulled back onto the highway before Hirscher could finish passing, leading to the fatal wreck. This is not to explain away Hirscher’s culpability, but rather to raise the issue of co-responsibility.

The more we know all sides of each story, the more likely we are to achieve some measure of trustworthy justice. Too often, we die wondering. 

Letter Of Public Remorse

I, Douglas Scott Hirscher, accept responsibility for my part in the fatal accident that occurred on Highway 128 on December 1, 2002, and have pled no contest to vehicular manslaughter and not returning to the scene of an accident. I anticipate going to state prison. 

I feel deep sorrow and remorse for the loss of life that occurred from that accident and the resulting trauma to the family members, survivors and community as a whole.

— Douglas Scott Hirscher, 8/6/03

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