He's out for a scalp

Doug Berman is on the warpath. In the aftermath of the accident that killed Dallas Cowboy linebacker Jerry Brown, Mr. Berman wants the scalp of Josh Brent.

Yes, the death of Mr. Brown is a tragedy. Maybe Mr. Brent was intoxicated and maybe he wasn't. We won't know anything until we see the results of the mandatory blood draw performed in the early hours of Saturday morning.

Mr. Berman is upset that Mr. Brent had a prior DWI conviction while in college in Illinois back in 2009.

I get it. The majority of folks who get arrested for driving while intoxicated do whatever it takes to prevent themselves from being in that position again. It would appear that Mr. Brent didn't take that lesson to heart. But, we must also keep in mind that Mr. Brent has only been accused of intoxication manslaughter. We haven't seen or heard the evidence. Until the state proves the elements of intoxication manslaughter beyond all reasonable doubt, Mr. Brent is innocent.

Mr. Berman claims that if the penalties for a DWI conviction were stiffer then Mr. Brown would still be alive today. The fact is that a first offense DWI is just one step removed from a traffic ticket. Most folks arrested for driving while intoxicated are arrested on the basis of their driving, the smell of alcohol on their breath and their performance on a set of roadside calisthenics.

A sentence of two years probation with a 60-day jail sentence (we don't know if the jail time was suspended) is nothing to sneeze at for a misdemeanor. That's two years of reporting to a probation officer, two years of no alcohol and two years of being subject to random drug tests.

Unless Mr. Berman proposes making a first-time DWI a more serious offense, there is no stiffer sentence that what Mr. Brent received. If he proposes making driving while intoxicated a felony offense he must be prepared for more acquittals at trial. I have a feeling that juries would be a little bit less inclined to convict a person of a felony based on the paltry evidence and junk science put forth in a DWI prosecution.

The needless loss of any life is tragic. But to use such a tragedy in order to promote legislation criminalizing conduct or enhancing existing punishments is a step in the wrong direction. Our state and federal penal codes are full of acts named after a person who died tragically that only serve to weaken our protections under the Bill of Rights.

So, Mr. Berman, if you want stiffer sentences for first-time DWI offenders, are you going to require concrete proof that the defendant was intoxicated at the time of driving or will you be satisfied with what passes for scientific evidence in a DWI prosecution? While pushing for stiffer sentences are you going to fight attempts to weaken the constitutional protections of those accused of driving while intoxicated?

Probably not. That might require getting your hands dirty.