'Outrageous' ruling is not so simple as it may seem

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© St. Petersburg Times
published August 14, 2002

Once again, we see a seemingly outrageous story from the legal system. Once again, learning more about it makes it a tougher call.

A judge in Tampa threw out a guilty verdict against a teenager whose car struck a 26-year-old new mother pushing her baby down the road in a stroller. The child lived.

The teen driver had a history of violations. There was testimony that he liked to cut that particular corner. Besides, he was supposed to be driving only to work, school and church.

The jury convicted Richard Delrio of vehicular homicide, punishable by up to 15 years in prison, in the death of Michele Calta.

Yet afterward, Circuit Judge J. Rogers Padgett decided the state had not proved the case, and set aside the jury's verdict. The judge even said there was nothing particularly "egregious" about Delrio's driving.

Delrio goes free.

The victim's family is devastated. The State Attorney's Office is disappointed and will try to appeal. Certainly, there will be a new round of public commentary about "liberal judges," along with the opinion that Padgett is a dunce who should be removed.

But here is why it is not an easy call, or at least disputable:

-- Delrio was charged with the crime of vehicular homicide. That is the crime of causing a death while driving in a "reckless" fashion. It is a second-degree felony.

-- "Reckless" driving means driving with a "willful, wanton, intentional disregard for the safety of others." For example, drag racing on the public streets certainly would be reckless. So might be egregious speeding down a residential street, or past a schoolhouse.

On the other hand, the running of a stop sign, the cutting of a corner, might or might not be reckless. It depends. It also might be the lesser offense of "careless" driving. Careless driving can be a failure to exercise reasonable caution, a lapse in attention. Any of us might be guilty of careless driving any day.

-- Okay, the judge said, let's suppose that Delrio did run the stop sign. Running a stop sign is not necessarily reckless by itself. There has to be more proof of recklessness. This is what the case hinged on.

The state produced testimony that Delrio routinely cut that corner, and routinely ran that stop sign -- in other words, that he had a habit of deliberate bad driving. The state also had expert calculations that Delrio struck the victim too fast, up to 26 mph, to have stopped at the sign.

But convicting someone based on known "habit" is shaky at best. Even if "everybody knows" somebody is a bad driver, or even a thief or bank robber, each new charge still has to be proved.

Padgett ruled that the jury had no evidence on which to decide Delrio was legally, criminally reckless. That left only the emotion of the tragedy, which is not a substitute for evidence. (The jurors kept the baby's stroller in the jury room during deliberations.)

-- As for Padgett's after-the-jury acquittal, it is unusual, but specifically provided for by Florida's rules of court. It is not so unusual that such a motion was denied earlier. In fact, it is harder to win such a motion the first time it is usually made, at the end of the state's case, because the burden is higher. The judge then is supposed to weigh the evidence "in the light most favorable to the state."

You might consider all these facts and say: I don't care. The judge is still wrong. Or, we should change the law for cases like these. That kid is a punk and he is getting off.

That's entirely your right.

All I'm saying is that this is a tougher call than it might first appear. It's not like they just dragged in some idiot from the street and stuck a black robe on him. Padgett is tough, and he is fair, and he is smart, and he is experienced. He is what you want in a judge.

In no way, no way, am I saying that it was okay that Delrio ran a stop sign and killed a young mother. It is not okay. It will never be okay. If he had taken someone from me, I would despise him with all of my heart. I, too, would believe he was a punk who was guilty of a worse crime, and that he deserved to suffer.

This is the difference between law and revenge.

-- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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