Archive for August 4th, 2006

Mel Gibson…For the Last Time.

Friday, August 4th, 2006

The current media feeding frenzy with Mr. Gibson continues, until the next celebrity fall-from-grace comes along…

After having given several interviews to the media, it is apparent to me that the reporters were primarily focused on the sensational aspects of the case rather than the relevant facts. So let me just try to cut through it:

1. Ignoring the celebrity status of the arrestee and the outrageous comments, this is basically a garden variety DUI: a dead-average blood alcohol concentration (.12%), no accident, no priors (a 20-year-old Toronto DUI was dismissed) — in other words, the average client who walks through my firm’s door. Nothing special…so far.

2. The usual sentence in Malibu Court for a first-offense DUI with a normal-range blood-alcohol level, with no accident and no priors or other “enhancements” (factors which trigger additional penalties) is a fine, 3-month DUI school, license suspension and probation; community service is a possibility. In other words, no jail.

3. No, Mr. Gibson is not required to appear at his September arraignment; his attorney can appear for him.

4. No, this case will never go to trial. Mr. Gibson has repeatedly given indications of his intentions, and has retained a celebrity damage-control attorney rather than a DUI specialist.

5. As I indicated in a post a couple of days ago, the sexist and anti-semitic remarks are deplorable but not illegal: he should not be thrown in jail simply because of his comments.

6. The celebrity status should, of course, be a non-factor in the likely event of sentencing: Mr. Gibson should receive no favorable treatment, nor should he be “made an example of”. I am quite familiar with Malibu Court, and fully expect the judge there will treat him as any other defendant.

So the police and prosecutors have shown Mr. Gibson no special treatment? I didn’t say that:

1. After booking Mr. Gibson and releasing him, the L.A. County Sheriff’s Department gave him a ride to the impound yard to recover his vehicle. In representing thousands of DUI clients over the years, I have never had a client encounter such consideration and hospitality.

2. The Sheriffs advised the media that Mr. Gibson had been required to post bail of $5000; the L.A. County District Attorney’s Office later admitted that he was released on his own recognizance (that is, no bail). While it is not unusual for a first-offense DUI arrestee to be released “O.R.”, it is unusual for the Sheriffs to claim otherwise.

3. In my firm’s experience, it takes a few weeks for a complaint to be filed by the D.A., but in Mr. Gibson’s case it was done in a few days.

All of which is rather petty. However…The fact is that there are a couple of more disturbing factors:

4. The arresting officer’s initial report was apparently later “cleaned up”: the arresting deputy was ordered to re-write it with the more outrageous comments and conduct excised. This is not standard operating procedure for the Sheriffs or any other law enforcement agency.

5. Mr. Gibson was allegedly travelling at over 80 mph in a 45 mph zone when pulled over. This is not good…

I mentioned “enhancements” which can increase penalties in DUI cases. One of those is the “speed enhancement”, which consists of driving at least 30 mph over the limit on a highway or 20 mph on a street. Consequences? If proven or admitted, the enhancement carries an automatic 60-day jail sentence.

Clearly, Mr. Gibson qualifies for this enhancement. And just as clearly, the D.A. did not file that enhancement with the criminal complaint. Why not?

To clarify: the D.A. has the authority to file any charges he deems fit, including any enhancements. If he chooses for whatever reason not to file a charge or an enhancement, then legally it does not exist and Mr. Gibson cannot be punished for it.

So Mr. Gibson got special treatment from the L.A. District Attorney?

Maybe. On the other hand, it may well be a strategic move. Sometimes, a prosecutor will purposely not file an enhancement if he wants to “motivate” a defendant and his attorney to plead guilty as charged rather than go to trial. Since the D.A. is free to amend the criminal complaint at any time up to trial by adding the enhancement, it hangs above the defendant’s head like the “Sword of Damocles”: go to trial and we amend the complaint and you face an added 60 days in jail. On the other hand, you can accomplish the same thing by filing the enhancement and then later offering to strike it in exchange for a plea; it looks better for the D.A., though, if it doesn’t appear to the media like he’s giving up anything.

So you can come to your own conclusions. End of interview….

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