The Counsellor's Corner

Some of you may have noticed that my column on legal and or psychological issues has been missing the last few Fridays; the reason for that is I have been involved in a lengthy jury trial which a number of you may have followed in the local and/or national news.

The case was People v. Cook and my client was charged with murder arising out of a driving-under-the-influence-of-alcohol-related traffic collision. The woman who died was a Jehovah's Witness who refused a blood transfusion even though there was a strong likelihood that a blood transfusion would have saved her life.

The District Attorney's office charged Mr. Cook with murder among other charges, and as DUI work is what I do most, I was hired to handle the case.

The stakes were extraordinarily high as my client was faced with life in prison had he been convicted of murder. He was alleged to have been traveling approximately 73 miles an hour with a blood alcohol level of .17 at the time of the collision. A lot of the alcohol and speed related facts were not in dispute. The case came down to whether or not Mr. Cook was responsible for the death of Jadine Russell, the deceased, or alternatively, whether Mrs. Russell's decision to forego a blood transfusion because it was inconsistent with her religious beliefs was a superceding intervening act which broke the chain of causation and freed Mr. Cook from responsibility for Mrs. Russell's death. The medical testimony indicated that Mrs. Russell would have likely survived had she accepted the transfusion; one doctor said there was a 70% to 80% chance, the other said survival was "mostly likely", and the third doctor indicated that 70% to 80% was a conservative estimate.

In these types of cases, the prosecution attempts to prove the intent necessary for second degree murder, which is referred to as "implied malice." This is not something premeditated or preplanned but is a state of mind in which one exhibits conduct inconsistent with the caring for human life and a conscious disregard for the lives of others.

The jury deliberated for approximately four days. They found Mr. Cook not guilty of murder and guilty of a lesser charge, which was what we hoped they would do.

The case seemed to attract the local and national attention that it did due to the perceived question of religious freedom. On one side you had people indicating that Mrs. Russell should be able to exercise her religious freedom, and on the other side you had people not wanting Mr. Cook to be held responsible for the consequences of the religious freedom exercised by Mrs. Russell.

What I tried to make clear is that I am a strong believer in the First Amendment and in an individual's right to exercise one's religious freedom that comes with the First Amendment. I have no problem at all with Mrs. Russell exercising her freedom of religion; However I do have a problem when the district attorney's office wants to hold my client responsible for Mrs. Russell's murder when that death did not have to be but for her exercise of her religious beliefs. On the night of the accident at the hospital, Mrs. Russell indicated that she would rather die than accept a blood transfusion. For a Jehovah's Witness, to accept the blood of others means that they will not go to what they perceive heaven to be. Of course, Jehovah's Witnesses did accept blood transfusions until 1945. They used to reject antibiotics however they've changed their position there; they used to not accept organ transplants however they do now, and in Bulgaria, the Jehovah's Witnesses now accept blood transfusions. I am convinced that within the next twenty years Jehovah's Witnesses will accept blood transfusions in this country.

I do have a hard time when beliefs that are supposed to have their origin in the Bible turn out to be somewhat flexible. Mr. Cook was and is willing to take responsibility for what he did. He was involved in a driving-under-the-influence-of-alcohol-related accident and people got hurt. That is significantly different than murdering someone. Mr. Cook was never looking to walk away from this without spending some time in prison; his goal was for a fixed sentence and as the jury did the right thing and came back not guilty on the charge of murder, Mr. Cook will get what he wished for and I will return to the practice of law in a less high profile manner and the helping of my patients in my career as a therapist.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.