Trooper Higbee’s Trial for Vehicular Homicide Is Set to Begin in Cape May

All eyes in the New Jersey law enforcement community will be riveted on the upcoming trial of Trooper Robert Higbee.  On September 27, 2006, Trooper Higbee’s cruiser crashed into a mini-van, killing two young sisters, Christina and Jacqueline Becker.  Though this event was clearly a horrible tragedy, questions are always raised in the law enforcement community about the fairness of criminally prosecuting a police officer for a fatal traffic accident that occurred while the officer was on duty, and clearly acting in good faith.   While the Higbee trial is technically about the events on the night of September 26, 2006, the underlying policy question remains: should our communities seek severe criminal punishment for police officers who are involved in traffic accidents, when there is no indication that the officer purposely did anything wrong?

The facts will become more clear as the trial progresses, but The Press of Atlantic City has reported the following scenario.  Trooper Higbee claims that he was trying to catch up with a speeder aroung 10:00 pm on the night in question.  He had not yet activated his lights and siren when he passed through a stop sign at approximately 60 mph, colliding with the mini-van on the front driver’s side.  According to the defense, the New Jersey Police Vehicular Pursuit policy states, in part, that when a police officer is attempting to stop a vehicle, the officer “shall, when possible and without creating a threat to public safety, close the distance between the two vehicles prior to activating emergency lights and an audible device.” 

There can be little argument that the Becker family is due civil damages under a civil negligence standard.  Indeed, the State Police has already resolved the civil case with a $2 million settlement.  Of course, money cannot bring back the two girls, but such a settlement would not be unusual if the person who struck the mini-van was not a police officer, and alcohol was not involved.

The question is whether Trooper Higbee committed a criminal act by “recklessly” passing through the stop sign.  During this trial, there will be testimony from eye-witnesses, some of whom may have actually seen the collision, whereas others will have only seen events leading up to and subsequent to the crash.  There will also be experts who will describe the speed and direction of each vehicle and will try to re-create the circumstances of the crash.  There will also be experts discussing police pursuit policies and whether or not Trooper Higbee abided by those polices.  But at the end of the day, after all the facts of the case are in, the jury’s final decision will turn on its understanding of the term “reckless” and how it applies that understanding to the facts.  In other words, what was the officer’s state of mind when the accident occurred? 

The notion of a culpable state of mind can be an intellectual quagmire, but can be summed up as follows.  There are four states of mind: purposeful, knowing, reckless, and negligent.  “Purposeful” conduct is something done consciously and purposely, like first-degree premeditated murder.  “Knowing” conduct is similar to purposeful conduct, except that the actor need not have specifically intended a particular result.  Recklessness and negligence are close cousins.  Whereas negligence means that the actor “knew or should have known” that his conduct carried certain risks or would likely have a certain result, recklessness requires “a conscious disregard” for a particular risk and that such a disregard was a “gross deviation” from what a “reasonable” person would have done under the circumstances. 

Determining the difference between, say, “purposeful” conduct and “reckless” conduct is usually quite straightforward.  But it gets tricky when jurors attempt to differentiate “reckless” and “negligent” conduct.  With respect to vehicular homicide, a defendant must be found innocent if his conduct was negligent, and guilty if it was reckless. 

According to the model jury instruction for reckless vehicular homicide, “A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct.  The risk must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to him/her, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant’s situation.” 

There is no model negligent homicide jury instruction.  But, we can look at the jury instruction for another statute to demonstrate how fine the line is between recklessness and negligence.  The negligence component of the jury instruction for the crime of “Reckless or Negligent Infliction of Injury to Innocent Persons” reads:

    A person is negligent in injuring or creating a risk of injury to an innocent person when (he/she) should be aware of a substantial and unjustifiable risk that the injury or risk of injury will result from (his/her) conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of (his/her) conduct and the circumstances knownto (him/her), involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. In other words, if it were very likely that the defendant’s use of force against (Victim 1) would injure or create a risk of injury to an innocent person, and given the circumstances, the defendant should have known that, but (he/she) went ahead and used force anyway, where a reasonable person would not have used force, then (he\she) acted negligently.

The defense will likely focus on two key aspects of these instructions.  First, it will argue that, at worst, Trooper Higbee’s passing through the stop sign constituted a negligent act.  The defense may even request an instruction on negligence, especially if the jury asks the judge to clarify the meaning of recklessness.  In any event, under the facts as we now know them, it would seem difficult for the defense to credibly argue that Trooper Higbee bore absolutely no fault.  After all, two young girls are dead, he was traveling over 60 mph without using his emergency lights and siren and without stopping at the stop sign.   Therefore, the defense is likely to focus on portraying Trooper Higbee’s conduct as “mere” negligence.

The second key aspect of the defense will relate to the second part of the recklessness instruction which states that a person with a reckless state of mind must have CONSCIOUSLY disregarded a risk that was so obviously dangerous that “disregard of the risk involves a GROSS DEVIATION from the standard of conduct that a reasonable person would observe in the defendant’s situation.” 

The defense will correctly argue to the jury that “recklessness” is quite a high standard under these circumstances.  Even if Trooper Higbee’s passing through the stop sign at 60 mph was a deviation from standard policy, that alone is not enough for a conviction, even if it is enough for purposes of civil liability.  Instead, Trooper Higbee’s conduct must have been a “gross” deviation from such standards. 

This is the reason why the NJ Police Vehicular Pursuit Policy is so central to this case.  Trooper Higbee will argue that he had been “trained” to delay the use of emergency lights and siren until he caught up to the alleged speeder.  Therefore, not using his emergency equipment was not a gross deviation from applicable standards.  

However, the prosecution will argue that, even if this policy was in place and Trooper Higbee knew about the policy, he still was obligated to not “create a threat to public safety” by doing so.  The prosecution will argue and present expert evidence to the effect that, under ANY circumstances, a police officer should not pass through a stop sign at 60 mph, especially not at night with no lights or sirens, and that doing so is a “gross deviation” from reasonable standards.  Unfortunately for Trooper Higbee, modern police training typically requires officers to slow down at all intersections, even when lights and siren are engaged. 

In the end, the members of the jury will apply common sense and their own “gut feelings” in applying the law to the facts.  This will undoubtedly be an emotional and vigorously contested trial which we will continue to follow as it proceeds.   

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