Judges, defense lawyers and prosecutors: All will tell you that the legal system regularly doles out different punishments for similar crimes. Defendants’ ages, circumstances and criminal backgrounds vary. Some people have highly skilled lawyers, and others do not. Some accept plea deals, and others cross their fingers and go to trial.
If you’re looking for a perfectly consistent product, go to McDonald’s, not to court.
Even so, some sentences stand out for their breathtakingly inappropriate severity. In Central Oregon, it’s David Black’s. Owing to the zeal of the county prosecutor’s office, an overly aggressive indictment, the unyielding nature of Measure 11 and, of course, his own refusal to accept a plea, Black has received a much harsher sentence than many reckless drivers who actually kill people.
The table below this editorial describes, in brief, several cases, including those of Black and co-defendant Randall Clifford. Most of the defendants were indicted for manslaughter, a Measure 11 crime. Two were indicted for a more serious form of manslaughter than Black and Clifford, yet even they ended up with sentences far shorter than Black’s. The only member of this group not indicted for manslaughter is Ernest DeWilde, whose lawyer negotiated a plea before the case went before a grand jury. But in DeWilde’s case, as Monday’s editorial pointed out, the district attorney’s office pushed negotiations along with the explicit threat of a manslaughter charge.
Black and Clifford stand out because they killed no one. Nevertheless, Deschutes County District Attorney Mike Dugan argues that they belong in this company, and his view is reflected in the overly aggressive indictment that set Black’s disastrous journey through the legal system in motion. Rather than running through the details of each case here, we’ll focus on two. They are that of the most severely punished defendant, Joshua Day, and the least severely punished defendant, Brett Pippin. Black surely would trade his sentence for either of theirs.
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Roughly two years after Black received a 75-month prison term for his role in the death of 15-year-old Stephanie Beeksma, Joshua Day got drunk. He spent several hours imbibing at a La Pine bowling alley and, later, at a La Pine inn. Then he oozed behind the wheel of his Dodge pickup. Sometime between 2:26 and 3 a.m. on July 15, 2006, Day drifted onto the shoulder of U.S. Highway 97 near Wickiup Junction and killed pedestrian Donald Arnold.
Day told police that he felt and heard the impact. He even stopped his truck and checked the damage. But did he turn back to see what he’d hit? Nope. He kept right on going, claiming later that he thought he’d hit a deer.
The police weren’t impressed. It is “reasonable to conclude that … (Day) had knowledge that he had collided with a pedestrian and knowingly fled the scene,” noted a state police reconstruction report. By fleeing, Day diminished “any opportunity that immediate emergency care might have been provided.” Arnold was alive at 3:15 a.m., when an ambulance arrived, but died half an hour later.
When the police located Day the following morning, they noticed a strong smell of alcohol. A blood sample drawn at 2:08 that afternoon — nearly 12 hours after the accident — registered a blood alcohol content of .07, according to a forensics report. Oregon’s legal limit is .08.
Day was indicted on a number of charges, including first-degree manslaughter and driving under the influence of intoxicants. He copped a plea to hit and run, driving under the influence of intoxicants and criminally negligent homicide, a non-Measure 11 crime.
For the drunken, craven indifference with which he killed Arnold, Day was sentenced to 60 months in prison. It’s unlikely that he will serve the entire term. After the first 32 months, Day will be eligible for “alternative” programs that could abbreviate or otherwise ease his tenure behind bars. Black, on the other hand, must serve his entire 75-month sentence. Even if Day serves all 60 months, his sentence will be 20 percent shorter than Black’s.
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At the other end of the spectrum is Brett Pippin, who was 18 years old on the morning of Dec. 24, 2004, when he killed passenger Tiffany Banks. The accident occurred on Huntington Road in La Pine as Pippin tried to pass a truck pulling a horse trailer on a section of road marked by a double-yellow line. He struck an oncoming car, injuring driver Elizabeth Dellarosa. Pippin’s own car was torn in half, and Banks, riding in the back seat, was ejected and killed. His front-seat passenger, Ryan Bergstralh, was badly injured.
Bergstralh spoke to authorities from his hospital bed two days later. He “described how Pippin had placed his vehicle so close to the trailer that he was following that as he pulled out to pass Pippin would not have been able to see the on-coming vehicle,” wrote the officer who interviewed him. Bergstralh agreed that it “would look like a NASCAR race car ‘drafting’ another.”
Bergstralh then claimed that Pippin “always drives like ‘that.’” When asked to elaborate, “Bergstralh replied that Pippin drives like an ‘a--hole.’” Pippin, claimed Bergstralh “is not one who is able to sit back (relax) and cruise (drive).”
David Black participated in an activity — illegal street racing — that Deschutes County District Attorney Mike Dugan wanted badly to discourage. Brett Pippin tried to pull a NASCAR move in broad daylight in a no-passing zone. Was Black’s behavior more reckless than Pippin’s? Is midnight road racing a more serious danger to teens and other drivers than daylight hot-rodding?
Maybe, maybe not. But Pippin actually killed another person. And just to make things interesting, his blood contained traces of both marijuana and methamphetamine. There’s no evidence Pippin was impaired at the time of the crash, but the lab test, said Deputy District Attorney Thomas Spear in a letter to Pippin’s lawyer, “adds to our theory of Mr. Pippin’s reckless behavior.”
A grand jury indicted Pippin for second-degree manslaughter, a Measure 11 crime, and various lesser crimes, including assault. The district attorney’s office offered to let Pippin plead guilty to criminally negligent homicide and multiple lesser counts. Pippin accepted, and in June 2005, about a year after Black was sentenced to 75 months, Pippin was ordered to serve two months in the county lockup. Black’s sentence is 37.5 times as long as Pippin’s.
At Pippin’s sentencing, Deschutes County Circuit Court Judge Stephen Tiktin said that he was tempted to hand down a stiffer penalty. But he rejected that option because his primary concern was to ensure that Pippin would be able to pay restitution to his victims. He also noted that Pippin had no previous criminal history and his driving record was clean.
Pippin has not made good on that restitution. He skipped out on his parole, and his whereabouts are unknown. Black’s whereabouts, on the other hand, won’t change until late 2010 unless the governor does the right thing and cuts his sentence short.