IS IT ALWAYS REASONABLE TO ASK WHAT IS REASONABLE?

A New York appellate court recently upheld the manslaughter conviction of John White, an African American man living on Long Island for shooting and killing one of 5 white high school students who came to his house shouting racial slurs and threatening to harm his teenage son. White’s defense was based on “justification,” that as a black man who, while growing up, had experienced racial discrimination and been told that two family members were killed by the KKK, he understandably armed himself with a pistol and used it to protect himself and his family without intending to shoot the victim.

Legally speaking, a person is justified in using deadly force if he or she “reasonably believes” it is necessary to protect their home against an intruder. The jury rejected this defense, and in reviewing the evidence, the appellate court concluded that the defendant did not have such a reasonable belief. The legal standard applied by the Court was:

“A determination of whether a defendant has a reasonable belief that deadly force is necessary to prevent or terminate a burglary requires the application of a reasonableness standard which has both objective and subjective elements. ‘The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude’"

This standard has as its premise that 12 jurors who may or may not have shared a defendant's life experiences can determine whether or not the defendant's fear of harm to himself, his home and his family was reasonable. What does that mean? If the fear was “unreasonable” but, nonetheless, the defendant experienced it, why does that make him guilty?

In a diverse society with a history of racial conflict, how do we determine what is reasonable for another person to believe. Is the application of the “reasonableness” standard really another way of determining whether or not the defendants’ claim is credible. Perhaps, but it is one thing to ask do you believe that the defendant felt as he said he did and, given how he felt, was he justified in resorting to deadly force, and quite another to ask one group of people, called a jury, in this case one with ten white people, one black and one Latino, to determine whether or not another person’s, a black person’s, feelings of fear were reasonable.

When what is good for the Parent, is good for the Child

A recent ruling by an appellate court in New York, in a case in which I represented the mother, provides some helpful insight into the relationship between what is best for a child, and what can be reasonably expected of a parent with custody. The client has allowed me to discuss the case in Legal Briefs.

The appellate court overturned a child visitation order that directed the mother of a two year old boy to take the child to a distant state one week a month for visitation with his father. We argued that the order was both hurtful to the child (an expert testified that such an extended period of separation of a young child from the primary caregiver can cause long term harm), and that it imposed an unreasonable burden on the mother who was directed to bring the child to the distant state on one week’s notice from the father.

In its decision, the appellate court did not explicitly address the latter issue, the burden on the mother. Instead, the judges wrote:

"Additionally, the existing monthly visitation schedule providing for the child to spend one week per month in [the distant state] and the remainder of each month in New York creates a situation in which the child has two homes and no real sense of permanency in either, since the father is permitted to schedule his visitation week upon one week's notice to the mother."

This was in keeping with the principle that issues of visitation are to be made on the basis of the best interests of the child. However, in my opinion the Court was, as well, attempting to redress the unfairness to the mother. In arguing a case such as this, don’t leave out the impact on the parent of a court’s visitation order. If you make this case effectively, the court may find a way to respond even if it does so indirectly.