Is Retrial the Right Verdict in This Case?

I’ve railed before about prosecutors who come out on the extremely short end of a hung jury but then retry the case. If a jury sends an overwhelming message that it doesn’t agree with the case, I’ve never understood why, absent new evidence or juror misconduct, prosecutors should get a second shot at a defendant.

With that preamble, I hereby register a citizen’s complaint about Deputy Dist. Atty. Karen Schatzle’s push to retry a San Clemente man charged with felony child endangerment in the accidental shooting of his daughter. The 2002 accident left the girl, then 8, minus most of her right arm and with severe damage to a kidney. In October, a jury voted 11 to 1 to acquit her father, Jeffrey West, but couldn’t get the necessary 12th vote.

Schatzle asked for a second trial and Superior Court Judge Patrick Donahue, a former prosecutor, agreed last week, setting a March 22 trial date.

So, why am I now going to tell you that my complaint comes with a large asterisk attached? So large, in fact, that it reduces my complaint to little more than a peep of protest?

It’s because I have a hard time shaking the mental image of a grown man sitting on the edge of a bathtub, as West was, and monkeying with a loaded shotgun as his daughter stood a few feet away. Schatzle thinks that amounts to felonious conduct. Some jurors who voted to acquit said they would have convicted West of a misdemeanor but not a felony.

Short of the father playing Russian roulette, I have a hard time parsing the difference. This isn’t a case of a child finding a gun or a parent claiming not to know a gun was loaded. Nor was it even a forgetful parent leaving a child in a locked car on a hot day, as happened to another father last year in Irvine.

This was an instance of an adult loading and unloading a shotgun inside a bathroom.

No one is suggesting West isn’t deeply remorseful. But neither could anyone argue that only a stroke of luck kept his daughter from being killed.

My first question for Schatzle, however, was why 11 votes to acquit didn’t tell her something. She said the jury’s vote can’t be ignored but that other factors also played into her decision to retry the case. Among them, she said, are the gravity of the situation, the girl’s age and vulnerability, and the question of parental responsibility for a child’s safety.

She also invoked the continuing societal debate over balancing people’s right to have guns in their homes and their responsibility for keeping them away from children.

She’s right; the issue goes beyond philosophy and into courtrooms. Is it really misdemeanor behavior to point a loaded shotgun in a child’s general direction, however unforeseen the result may be?

If it sounds like I’m out for West’s blood, I’m not. He could spend up to nine years in prison if convicted -- a steep penalty for an accident. But what would people be saying if the child had been a neighbor instead of his daughter? Would they still be arguing, as some no doubt are now, that he has been “punished enough”?

Schatzle hasn’t put a misdemeanor plea bargain on the table. “It’s either a felony or it’s not,” she says.

Most likely, a second trial would be another go-round on parental responsibility, with 12 new jurors weighing in.

With 11 to 1 for acquittal, the jury has spoken -- almost.

Given that West was oh-so-close to acquittal, I can’t argue with a clear conscience that he should be subjected to another trial. But neither can I fathom how a guy can mess with a shotgun in the presence of an 8-year-old.

Fair or not, with my complaint duly noted, I’d like to hear another jury add its voice to the debate.

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Dana Parsons’ column appears Wednesdays, Fridays and Sundays. He can be reached at (714) 966-7821, at [email protected] or at The Times’ Orange County edition, 1375 Sunflower Ave., Costa Mesa, CA 92626.