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Second-degree murder law created to address child deaths

  • By Sarah Fay Campbell
  • |
  • Dec. 17, 2018 - 10:10 AM

Second-degree murder law created to address child deaths

Sarah Fay Campbell / The Newnan Times-Herald

“When people do something reckless and not intentional it gives you a wider variety of sentencing options,” according to according to Pete Skandalakis, former Coweta district attorney and current head of the Prosecuting Attorneys’ Council of Georgia.

Three Coweta parents have been charged under a relatively new law in the deaths of their young children.

Georgia’s second-degree murder statute went into effect in 2014, and only applies to deaths of children that result from criminal negligence.

Before the law went into effect, prosecutors only had the option of felony murder, malice murder or involuntary manslaughter charges in cases where parents caused the deaths of their children without meaning to, according to Pete Skandalakis, former Coweta district attorney and current head of the Prosecuting Attorneys’ Council of Georgia.

Under state law, “a person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice."

A person commits the offense of cruelty to children in the second degree "when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain."

“There are so many cases in which children are left in dangerous positions. Some of them intentionally, some of them by reckless disregard for safety,” Skandalakis said. “This helps a prosecutor make a decision on how best to charge a case if a case warrants criminal charges."

Two parents, Adam Scott Brady and Elizabeth Ann Norris, have been indicted by a Coweta Grand Jury for second degree murder in the death of their 3-month-old son, Cassius Norris.

The indictment stated that the couple placed Cassius in a cluttered playpen and in an unsafe sleeping position, even though they were aware of the dangers, and failed to adequately supervise Cassius, in reckless disregard for his safety.

According to the arrest warrant, the couple would leave Cassius unattended for extended periods of time. He was found face down and appeared to have suffocated because of his inability to raise his head from the plush pillow he was sleeping on, according to police.

Daniel “DJ” Lee has been charged with second-degree murder in the death of his 2-year-old daughter, Aleigha. Aleigha’s mother, Elizabeth Lee, has been charged with felony murder and aggravated battery.

DJ Lee was charged with second-degree murder because he allegedly did nothing to help the child, who sustained multiple injuries.

Murder in the second degree carries a sentence of 10 to 30 years. Any portion of that sentence can be probated, and those convicted are eligible for first-offender status, according to Skandalakis.

That gives judges and juries wide discretion in sentencing.

“When people do something reckless and not intentional it gives you a wider variety of sentencing options,” Skandalakis said.

If a person were instead convicted of murder, that comes with a sentence of life or life without parole. The first parole eligibility in a life sentence comes after 30 years.

The need to provide a way to address child deaths caused by criminal negligence was something both prosecutors and legislators agreed on, Skandalakis said.

There were concerns about parents who left children in cars, or children who were killed in other ways and “the only option available to the prosecutor was malice or felony murder, or involuntary manslaughter,” Skandalakis said. “So there was a gray area where parents were reckless and they did disregard a substantial safety risk and put children in harm’s way. This statute addressed these types of cases.”

Second-degree murder is not for deaths that are accidental.

“Sometimes parents or caretakers do something accidentally,” Skandalakis said.

For the charge to apply, “there has to be an element of criminal negligence involved."

“Any time that you’re looking at these cases, the first thing you want to rule out is – was it an accident?” Skandalakis said.

An accident is an “affirmative defense” to a crime. If a defendant claims something was an accident, a prosecutor has to prove it was not an accident – beyond a reasonable doubt, Skandalakis said.

In state law, criminal negligence is defined as "an act or failure to act which demonstrates a willful, wanton or reckless disregard for the safety of others who might reasonably be expected to be injured thereby."

An obvious example of criminal negligence that could lead to the death of a child is leaving a loaded firearm out, “knowing that children are in the area and that children may pick them up and play with them,’” Skandalakis said.

Leaving drugs out where children can get to them is another example.

Leaving a young child alone for several hours or leaving a 7-year-old to babysit a 3-year-old could also rise to the level of criminal negligence, he said.

Because cruelty to children in the second degree is a felony, these crimes could still be charged as felony murder. Possession of most drugs is also a felony, so a child’s death related to drugs could also be charged as felony murder, according to Skandalakis.

A prosecutor could choose to charge a person with both felony murder and second-degree murder.

“Depending upon the facts of a particular case… depending upon how the prosecutor charges it, a jury can look at a case in different ways,” Skandalakis said.