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ANALYSIS: Should day care owner have been charged with second-degree murder?

Janna Thompson told police that she’s not perfect, but maintained she never did anything intentionally to cause the death of a toddler in her care.

Throughout 20 plus years of criminal practice, the question I am asked most frequently is, "How can you defend someone you know is guilty?" 
Setting aside the oath I took to defend the Constitution when I became a lawyer, which doesn't limit my obligation to defend only those whom I believe are innocent, the answer is usually, "Guilty of what?" Certainly, one can be responsible for causing a death, but whether the law calls it murder depends on the intent of the person who caused it. 

NORTH FULTON COUNTY, Ga. — In a premeditated murder, there is no hesitation to brand a person with the scarlet M.  But when a homeowner shoots an assailant who has made his way into the home in the middle of the night and attempts to abduct a child, not only is that person not guilty, they might end up with hero status.

Sometimes the facts are murkier.
So was the case of the State vs. Janna Thompson
There is no doubt that on her watch, a beautiful 3-year-old boy named Max died when he was hanged on a yellow string, presumably left behind after pine straw was laid at the playground of the day care run by Thompson. 
There was no evidence presented that Thompson knew of the yellow string danger, although there was evidence that the state claimed that she was made aware of other dangers on her property six months before Max's death, none of which were related to Max's death, and that she was in current violation of the day care licensing provision limiting her to care for no more than six children at a time.

So she is "guilty" of doing something wrong.  I'm sure we can agree that she shouldn't have any more children in her care.  She might even be a criminal. But a murderer? 

In 2014, Georgia added second-degree murder to the statute previously reserved for malice murder and felony murder, OCGA 16-5-1.  We all know the definition of malice. Felony murder is where someone, in the commission of a felony, causes the death of another. Think the driver of the getaway car in a bank robbery where the police kill one of the robbers in the getaway.  The driver is charged with felony murder.

Now, someone who, in the commission of cruelty to children in the second degree, causes the death of another, irrespective of malice, commits second-degree murder and that person shall be punished by imprisonment for no fewer than 10 or more than 30 years.  Any person commits the offense of cruelty to children in the second degree when the person, with criminal negligence, causes a child under the age of 18 cruel or excessive physical or mental pain.

Criminal negligence is an act or failure to act which demonstrates a willful, wanton or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.
For reference, Ross Harris is charged and about to be tried for first-degree and felony murder, one of the underlying counts in the felony using the same statute under which Thompson was charged, second-degree cruelty to children.  A father in Carrollton is also charged with second-degree murder after authorities say he left his twin daughters in a hot car when he was intoxicated, as was a father who was just convicted of diluting breast milk and causing his child to starve to death. 
But do you know who is unlikely to be charged with second-degree murder? 
A parent whose child kills himself or another with a loaded firearm left unsecured, and a parent whose child falls into a pool and drowns. 

Even a person who kills another while drunk driving isn't called a murderer.  The crime is vehicular homicide, which sounds so sanitized. The punishment is 3-15 years in prison.

If you believed every piece of evidence that the state presented, and it looked like the jury was inclined to believe it, if Thompson wasn't aware of the string's presence, she could not have had the intent necessary required to be criminally negligent for Max to be hanged.

But even if she was aware of the string's presence, or if it didn't matter if she knew, since she was the caregiver, does that make her a murderer for not watching him closely enough to stop him from placing it around his head and strangling?  A murderer?

Do we even want to criminalize that type of behavior?  We rarely do when parents are the perpetrators.  We call them accidents and say that the parents will have to live with their actions for the rest of their lives.  Of course they will.  Spending a few moments in the courtroom was enough to know that Thompson will, too.

Would the state have charged Thompson if she were Max's mother?  Wouldn't we all have been in shock if Paul Howard did?  Which parent among us has not taken their eyes off their child while distracted by another?  Which parent hasn't made a mistake?

If the circumstances are not enough to characterize those above as murder, especially when the punishment for knowingly drinking and driving does not come close to that of one convicted of second-degree murder, then a day care operator (who has no duty greater than a parent does) who ignores a yellow string should not be charged as one, either.